THE ENVIRONMENTAL CHALLENGE TO THE OVERLOADED STATE : THE POLITICS OF TOXIC CHEMICALS IN NSW SINCE THE LATE 1970s
Submitted for the degree of Doctor of Philosophy
Suzanne Benn 1999 DEDICATION
This thesis is dedicated to my supervisor, Professor Gavan McDonell, to my partner, Andrew Martin, and to my three sons, Steven, Andrew and Thomas Benn. To Gavan McDonell, whose understanding of the complexity and interdisciplinarity of environmental issues is so inspirational, I am indebted not only for his intellectual leadership, but for his equally remarkable humanity and humour. To Andrew Martin, I owe thanks for his boundless enthusiasm and insightfulness, for our many discussions in which his legal mind has dissected out some of my woollier abstractions and for the loving support of a close relationship. To my sons, of whom I am so proud, I am beholden for the pride that they, in turn, have shown towards this project. For the sake of their trust in me alone, I could never have given it up. And to my good friends, who have tolerated my preoccupations, can I say only that this thesis has been truly a `rite of passage'. To grapple with the politics of sustainability is to recognise the enormity of the problems that lie ahead and the preciousness of what we stand to lose. To all of you, my thanks for your patience and support. Abstract This thesis is a regional interdisciplinary analysis of the environmental challenge to the liberal democratic state. It situates these new problems of governance in one of the dominating political conflicts of our time, the battle between market and state for the ‘commanding heights’.
By the end of the 1970s, environmental concerns had added to the social crises associated with the overloaded, welfare state. The study sets the political context through an exposition of the perceived problems of the overloaded state, analysed by neo-Marxist theorists in terms of rationality and legitimacy deficits and by public choice theorists in terms of the incentives and calculations confronting rational individuals. It draws out the association between these alternative perspectives on ‘state overload’ and the political philosophies of corporatism and neo-liberalism, showing that, on the neo-Marxist understanding, corporatism addresses the functional requirements of late capitalism, while public choice precepts are strongly influential on leading elements of neo-liberalism.
This political analysis is developed through the history of a landmark piece of legislation, the Environmentally Hazardous Chemicals Act (NSW) 1985, in toxic chemicals policymaking from the late 1970s to the end of 1997. The interpretation of the case material shows that the response in NSW to the environmental problematic has been driven by the reform agenda of the successive political programs of corporatism and neo-liberalism for the state, the bureaucracy and the democratic process. Neither the corporatist nor the neo-liberal programs succeeded in meeting environmental criteria. Examination of the inadequate responses of both corporatism and neo-liberalism, when measured against sustainability criteria, leads to a deeper understanding of the institutional reforms required if these criteria are to be addressed. The thesis concludes that the failure to effect successful reform of toxic chemicals policy in NSW reflects the failure of leading political theorems of the liberal democratic state to incorporate sustainability criteria successfully into their reform agenda for the state, the bureaucracy and the democratic process. These regional issues are shown to be thematic for the nation-state when raised in the context of the globalisation of the environmental challenge and the internationalisation of market forces. The thesis concludes with a brief review of some recent political theory in relation to the programmatic issues of sustainability and democracy which it has pursued. THE ENVIRONMENTAL CHALLENGE TO THE OVERLOADED STATE: THE POLITICS OF TOXIC CHEMICALS IN NSW SINCE THE LATE 1970s
Table of Contents
SECTION A Theoretical Understandings of the Overloaded State Chapter 1 Introduction: the Environmental Challenge to the Nation-state and the Global Order 1.1.0 The environmental challenge and the Australian state 1.2.0 The purpose of the study 1.2.1 The argument 1.2.2 A case study of the EHCA (NSW) 1985
1.3.0 Theme (1): theoretical understandings of the overloaded state 1.3.1 Neo-Marxist systems theory in brief 1.3.2 Public choice theory in brief 1.3.3 The environmental problematic and the emergence of sustainability principles 1.3.4 Programmatic applications and institutional reform agenda
1.4.0 Theme (2): political responses in NSW to the environmental challenge 1.4.1 The corporatist response to the first phase of the environmental challenge 1.4.1.1 Results of the first phase of reform 1.4.2 The second phase of the environmental crisis and the programs of the individualist state 1.4.2.1 Results of the second phase of reform
1.5.0 Theme (3): theoretical bases of contemporary political programs 1.5.1 Neo-Marxist analysis and the corporatist phase 1.5.1.1 Neo-Marxist theory and sustainability deficits 1.5.2 Public choice theory and the individualist phase 1.5.2.1 Public choice theory and sustainability deficits
1.6.0 Conclusion: the failure of established programs 1.6.1 Thematic issues: sustainability at the global level 1.6.2 Recent theoretical developments Chapter 2 Theoretical Analysis and Political Prescriptions: the Overloaded State in the Context of Sustainability Criteria 2.1.0 Introduction: theories of the overloaded state 2.1.1.0 Neo-Marxist deficit theory 2.1.1.1 Rationality deficits 2.1.1.2 Legitimacy deficits 2.1.2.0 Public choice theory
2.2.0 Analytical theme (1): the new challenges of sustainability criteria 2.2.1 Implications for the overloaded state
2.3.0 Analytical theme (2): institutional targets of political reform 2.3.1 The state as coordinator 2.3.2 The bureaucracy as agent 2.3.3 The democratic process as legitimator
2.4.0 Fields of application theme (3): the programmatic responses to the problems of the overloaded state 2.4.1 The rise of the corporatist state 2.4.1.1 Reform agenda for the state 2.4.1.2 Reform agenda for the bureaucracy. 2.4.1.3 Reform agenda for the democratic process 2.4.2 The rise of the individualist state 2.4.2.1 Reform agenda for the individualist state 2.4.2.2 Reform agenda for the bureaucracy 2.4.2.3 Reform agenda for the democratic process
SECTION B A Regional Case Study of Toxic Chemicals Policymaking: the History of the EHCA (NSW) 1985 Chapter 3 The First Phase of the Environmental Challenge: the EHCA (NSW) 1985 in its Political and Regulatory Context 3.1.0 The first phase of the environmental challenge 3.1.1 The political context: the interventionist state in Australia 3.1.1.1 The rise of corporatism in Australia 3.1.2 The regulatory context: command and control
3.2.0 The push for reform 3.2.1 The EHCA (NSW) 1985 as landmark legislation 3.2.2 The drafting and implementation of the EHCA (NSW) 1985: the politics of corporatism 3.2.2.1 Industry and insider status 3.3.0 Results of the first phase: the EHCA (NSW) 1985 as a record of corporatist failure 3.3.1 Administrative and legitimacy deficits Chapter 4 From the Corporatist State to the Devolving State: the EHCA (NSW) 1985 and the Second Phase of the Environmental Challenge 4.1.0 The second phase of the environmental challenge 4.1 1 The political context: neo-liberalism and the heterogeneity of environmentalism 4.1.2 The regulatory context: stepping back from intervention
4.2.0 The fate of the EHCA (NSW) 1985 and the politics of neo-liberalism 4.2.1 Consolidation and restructuring measures 4.2.2 The shift to economic policy tools 4.2.3 Devolution and self-regulation measures
4.3.0 Critique of the second period of environmental reform: introduction 4.3.1 The background: federal deregulation 4.3.2 Devolution of authority and expanded state functions 4.3.3 Co-operation, bureaucratic territoriality and corporate capture 4.3.4 Considerations of equity and trust
4.4.0 Results of the second period of environmental reform 4.4.1 Administrative and legitimacy deficits
4.5.0 Conclusion
SECTION C Two Decades of Toxic Chemicals Management: Sustainability and Policy Failure Chapter 5 The Overloaded State and the Politics of Corporatism: Analysis of the Corporatist Response to the Environmental Challenge
5.1.0 The EHCA (NSW) 1985 as a corporatist response 5.1.1 The EHCA (NSW) 1985 and the corporatist program for the state 5.1.2 The EHCA (NSW) 1985 and the corporatist program for the bureaucracy 5.1.3 The EHCA (NSW) 1985 and the corporatist program for the democratic process 5.1.4 Summary: the EHCA (NSW) 1985 as corporatist policymaking
5.2.0 Corporatism and sustainability deficits 5.2.1 The interventionist, welfare state 5.2.2 Scientific risk assessment and the institutionalised bureaucracy 5.2.3 Selected interest group representation
5.3.0 Summary: sustainability and the challenges to corporatism 5.3.1 Political decentralisation 5.3.2 Integrated policy and devolved bureaucratic responsibilities 5.3.3 Institutional transparency
5.4.0 Conclusion 5.4.1 The passage to the second phase of the environmental challenge Chapter 6 The Disappearing State and the Politics of Individualism: Analysis of the Neo- Liberal Response to the Environmental Challenge
6.1.0 The second phase of the environmental challenge: the neo-liberal response 6.1.1 The EHCA (NSW) 1985, public choice principles and the individualist program for the state 6.1.2 The EHCA (NSW) 1985, public choice principles and the minimal bureaucracy 6.1.3 The EHCA (NSW) 1985, public choice principles and the democratic process
6.2.0 Neo-liberal political prescriptions and sustainability 6.2.1 Public choice principles, the individualist state and sustainability 6.2.2 Public choice principles, restructuring and sustainability 6.2.3 Public choice principles, the political market place and sustainability 6.2.4 Other political prescriptions and sustainability
6.3.0 Summary: sustainability and the challenges for neo-liberalism 6.3.1 Re-regulation 6.3.2 Devolved bureaucratic power 6.3.3 Environmental citizenship
6.4.0 Conclusion
Chapter 7 The EHCA: A Regional Case of a Global Problem 7.1.0 Introduction 7.1.1 Summary of the NSW case
7.2.0 Sustainability in the global context 7.2.1 The challenge for the nation-state 7.2.2 The challenge for bureaucratic administration 7.2.3 The challenge for the democratic process 7.2.4 The thematic challenge of the environment
7.3.0 Selected theoretical developments 7.3.1 Luhmann’s systems theory 7.3.2 Postmodern theory 7.3.3 Risk theory 7.3.4 Ecofeminism 7.3.5 Recent reconceptualisations of democracy 7.3.6 Summary
7.4.0 Conclusion of the study Bibliography
Glossary
Appendix A Flow charts of the EHCA (NSW) 1985
Appendix B Item 1 Composition of the HCAC Item 2 List of invited submissions to the EHCB
Appendix C Item 1 Minister’s foreword to the POEO Bill Item 2 Objects of the POEO Bill Item 3 Minister’s opening address to the Pollution Perspectives Conference, Sydney, 20 March 1997 SECTION A
THEORETICAL UNDERSTANDINGS OF THE OVERLOADED STATE Chapter 1 Introduction: The Environmental Challenge to the Nation-State and the Global Order Two trends coalesced in the 1980s-the internationalisation of the world economy in which success became the survival of the fittest; and the gradual but inexorable weakening of Australia’s ‘imperial’ links with its two patrons, Britain and America. The message was manifest- Australia must stand on its own ability. Australians, in fact, had waited longer than most nations to address the true definition of nationhood- the acceptance of responsibility for their own fate (Kelly 1992, p. 13). 1.1.0 Introduction: the environmental challenge and the Australian state
As the barriers between Fortress Australia and the world began to crumble in the late 1970s and the early 1980s, this ‘ new’ nation-state faced many challenges.1 Arguably the most persistent, and far-reaching in its impact across ethical, social, political and economic arenas, is the issue of the environment. The environmental challenge in Australia emerged against a local background shaped by the concerns of a strong and interventionist state, a new vulnerability to global pressures and the historic priorities of a resource-based economy. As a highly urbanised nation with a tradition of environmentally destructive agricultural practices, based on an economy exploitative of fuel and other resources, Australia’s socio-economic and political history is marked by particularly strong ties between state planning authorities and corporate interests (Papadakis 1993, pp. 2-6). Although Australian politics demonstrates the influence of diverse beliefs, the ideology of a ‘pragmatic, utilitarian and materialist’ strain of liberalism has been dominant enough to allow ‘labour and land to be more easily treated as commodities’ (Pusey 1988, p. 28). 2 Environmental activism in many countries has led to a questioning of the validity of growth and the development model so prominent in Australia. This social and political movement has challenged the hegemony of the bureaucratic-industrial complex, forged
1 Kelly identifies White Australia, Industry Protection, Wage Arbitration, State Paternalism and Imperial Benevolence as long-established political traditions discarded by Australia in the 1980s (Kelly 1992, pp. 1- 16). 2 Although the ideology of liberalism embraces a variety of beliefs, ideas and attitudes, its basic values can be taken to be individualism, freedom, choice and the linking of the operations of the liberal democracy to the principles of the free market and economic competition (Jaensch 1992, pp. 31-33; Self 1985). The normative liberal perspective on democracy is that it allows the ‘aggregation of individual preferences into a collective action in as fair and efficient a way as possible’ (Miller 1993, p. 75).
1 by the overlapping needs of the capitalist state and industry. Environmentalists early demonstrated a resistance to traditional patterns of co-option and patronage (Goodin 1992, p. 12) and ‘green’ organisations, although numerous, and of diverse emphasis and origins, have generally proved themselves loathe to compromise (Eckersley 1996, p. 74). The sudden emergence of a new set of values espoused by the ecology movement has posed unprecedented threats to the whole industrial order, but in a country with a short history of Europeanisation marked by the conquest of nature and the politics of development, management of the upsurge of environmentalism has created a daunting task for the state. Indeed, the tradition of state interventionism has itself resulted in environmental disputes in Australia taking a strong anti-state emphasis (Papadakis 1993). The birth of environmental politics in Australia was signified by the dramatic events of 1971-1975, when Green Bans were placed on development sites by the Builders Labourers Federation in defence of local interests (Roddewig 1978). From a base of 50,000 in 1970, by 1990 the environment movement in this country had broadened and increased to 500,000 members (Christoff 1994, pp. 354-356).3 By 1997, opinion polls showed 47% of Australians as very interested in environmental pollution, compared to 22% who said they were very interested in politics and 33% who said they were very interested in sport (Delvecchio and Peatling 1997, p. 3).4 Australia now faces an environmental challenge the extent of which has recently been recognised by the highest level of state authority, the Governor-General of Australia, Sir William Deane: We Australians bear an extraordinarily heavy burden of obligation to ourselves, our country and future generations to protect and preserve the environment of our continent (quoted in Woodford 1997). According to the Federal Minister for the Environment, the social and economic damage caused by water pollution, for instance, is now a major issue for government (Phelan 1997). Recent examples in New South Wales (NSW) include acute outbreaks of illness due to oyster consumption in 1996 and 1997, the reported contamination of sediments
3 The UK election of 1989 saw an unprecedented vote of 15% go to the Greens (McAllister and Bean, p. 172). 4 The term ‘pollution’ has varying interpretations. Weale’s definition, while not exclusively anthropocentric, reflects the extent of the problems that pollution implies for society: ‘pollution is the introduction into the environment of substances or emissions that either damage, or carry the risk of damaging, human health or well-being, the built environment or the natural environment’ (Weale 1992, p. 3).
2 and organisms and the high to very high concentrations of chlorinated organics in Sydney’s urban estuaries (NSW Environment Protection Agency (EPA) 1997a, pp. 255- 257). Environmental management also has implications for international trade, with Australia’s poor record in pesticide risk reduction causing it to come under pressure to reduce pesticide reliance (NSW Agriculture 1998). The challenge to governance at the nation-state level is compounded by global manifestations of crisis. Although the origins of environmental problems remain rooted in the socio-economic development and political practices within nation-states, ‘nature’s limits’ are beginning to impose themselves at a global level and to have effect on the integrated global economy (Brown 1995, p. 4). Recent evidence of industrial pollution in China, for instance, indicate that the Western development model is unviable not only in that country, but, in the long-term, for the Western industrialised nations themselves (Brown 1998a, pp. 11-20). Supra-national authorities may be required to counter moves by nation-states to weaken environmental standards in order to benefit their domestic economies (Global Environmental Change Program 1998, p. 5). Hence the need for global cooperation in the design of environmental policy is increasing. 1.2.0 The purpose of the study This study analyses the challenge to the liberal democratic state5 represented by the emergence of the ecological crisis, as instanced in the history of a piece of ‘landmark’ environmental legislation in NSW, the Environmentally Hazardous Chemicals Act (EHCA) (NSW)) 1985 (Appendix A). For the purposes of this study, the first phase of the environmental challenge in relation to toxic chemicals is taken as beginning in the late 1970s. Although environmentalism arose as a social and political movement in the late 1960s in Australia, toxic chemicals did not emerge as a political issue here until the late 1970s. The Pesticides Act (NSW) was passed in 1978. Consultations concerning the need to control industrial chemicals commenced in the early 1980s and the EHCA (NSW) was passed in 1985. As the global crisis intensified in the late 1980s, and as the shortcomings of the first wave of environmental reforms became obvious, the events of
5 The term ‘liberal democratic’ is understood as a conjunction, that is, as expressing the variety of traditions and meanings possible for both liberal and democracy, and of the tension between them (Held 1993, pp. 13-14).
3 the case study reflect the conditions of the second phase of the environmental problematic and the ‘new politics of pollution’ (Weale 1992, p. 32). 1.2.1 The argument This regional historical analysis shows that consecutive political programs associated with the corporatist and individualist state have failed to meet sustainability criteria in relation to the environmental management of toxic chemicals. Sustainability deficits associated with the reform agenda of these programs for the state, the bureaucracy and the democratic process are identified from the case study and highlight the institutional restructuring required for sustainability. The thesis argues that the policy failures indicate the ecological limitations of both the neo-Marxist, corporatist interpretations of the structural requirements of late capitalism and the public choice analysis and other schools of thought underpinning the concept of the individualist state. The case study demonstrates the inability of these essentially anthropocentric, materialist and reductionist theoretical interpretations of the late capitalist state to incorporate sustainability criteria. Similar issues of governance emerge in relationship to the global environmental crisis. The environmental problematic thus reflects the emergence of thematic socio-political issues requiring new developments in the theory of the institutional arrangements of the democratic state. 1.2.2 A case study of the EHCA (NSW) 1985 Empirical material for the thesis was obtained from a case study of the EHCA (NSW) 1985.6 The EHCA (NSW) 1985 was aimed at controlling the introduction, use and disposal of environmentally hazardous chemicals in NSW (Appendix A). Its introduction in 1985 was to allow, for the first time, control of the total life cycle, from introduction to disposal, of a contaminant. Under the Act, the State Pollution Control Commission (SPCC) 7, the specialised pollution control agency for NSW at the time, was given the power to control specific activities associated with chemicals and chemical wastes. These prescribed activities are the manufacturing, processing, keeping, distributing, conveying,
6 The empirical material was obtained from files held at the State Pollution Control Commission (SPCC) and at the NSW EPA concerning the events leading up to the formulation of the EHCA (NSW) 1985, examined under the rights of the Freedom of Information Act; from personal interviews and written communications with industry and government representatives; from government reports and other relevant public documents, and from media and environmental newsletter reports. 7 The SPCC was legislated for by the SPCC Act 1970.
4 using, selling, and disposing of chemicals or chemical wastes, and related activities.8 Chemical wastes are those substances declared to be so under section 10 of the Act. The Act refers to both listed and unlisted chemicals, depending on whether or not they are included on an inventory of existing chemicals, responsibility for which is vested in the Commonwealth Government of Australia. It provides for the mandatory notification of unlisted chemicals, with the procedure for handling unlisted chemicals to follow that developed by the Organisation for Economic Co-operation and Development (OECD). When passed in 1985, the situation was that although controls were envisaged as being determined at the State level, mandatory notification and assessment of new chemicals was to be established by the Commonwealth under a national scheme. The sections (9 and 12) of the EHCA (NSW) 1985 relevant to the national scheme were not proclaimed because national legislation was not yet in place. The National Industrial Chemicals Notification and Assessment Scheme (NICNAS) was legislated for by the Industrial Chemicals (Notification and Assessment) Act of 1989, (Cwlth), allowing ss. 9 and 12 of the EHCA (NSW) 1985 to be proclaimed and thus enabling the control of new, as well as existing, chemicals in NSW. This Scheme requires that the National Occupational Health and Safety Commission (NOHSC) be notified of the manufacture or importing of new industrial chemicals to Australia and that data be submitted allowing the assessment of their projected effect on the health and safety of humans and the environment. The distinction between new and existing chemicals was to be made by reference to the Australian Inventory of Chemical Substances. The Act provided for fines to be set for breaches of its provisions and, at the discretion of the SPCC, a chemical control order can be made either prohibiting or licensing various activities.9 Further powers are ascribed to the SPCC, such as the issuing of directions requiring remedial action if certain activities have contaminated premises or land.10 This new system of assessing and controlling chemicals was to be administered by the SPCC, assisted by the Hazardous Chemicals Advisory Committee
8 s3 (1) 9 Division 5. 10 s34, s35.
5 (HCAC).11 The HCAC was composed of officers from various government departments, and representatives from manufacturers and chemicals users, the trade unions, local government, consumer groups and professional experts (Appendix B, Item 1). Its role was to investigate, carry out research into, report to and advise the Commission of any matter concerning chemicals and the environment.12 1.3.0 Theme (1): theoretical understandings of the overloaded state The thesis argues that successive political programs over the last twenty years in NSW have failed in their attempts to manage toxic chemicals according to the standards set by sustainability criteria. This failed policymaking reflects the inability of the leading contemporary political theories to incorporate the environmental challenge into their reform agenda. The thesis points out that the leading contemporary approaches to state theory emerged in response to the perceived issues of the ‘overloaded’ state. These developments, in the form of neo-Marxist systems theory and public choice theory, were concerned with the increasingly complex demands made of the democratic state as a result of technological, social and economic developments in post-World War 2 capitalist society. Although these new approaches to the state and the political economy made significant revisions to both traditional liberal and Marxist thought (Head and Bell 1994), basically anthropocentric assumptions at the core of these theories precluded them from taking the considerations of sustainability into account. By the mid-1960s, the new political problematic taking centre stage in both conservative and social democratic camps was characterised by ‘the growing sense of failure of the instrumental-purposive type of rationality’ and the need to ‘rationalise’ the polity according to some new design (Offe 1985, p. 231). By the mid-1970s, the academic and non-academic discourse of both Right and Left political factions had developed a critique of the welfare state. The theoretical shift, on both sides of the political spectrum, was away from idealistic perceptions of the state, towards a more critical analysis of its role and importance. Variations of Marxism emerged which argued that state ‘overload’ is due to the state needing to support and maintain capitalism (O’Connor 1973). Although not
11 s6, s7, Sch. 1. 12 Summary information on the EHCA (NSW) obtained from the brochure Protecting the Environment from Chemicals, the Environmentally Hazardous Chemicals Act, 1985, prepared by the SPCC, 1985.
6 prescriptive for corporatism, such neo-Marxist theory provided a functional explanation for the rise of the corporatist state and contributed to the development of corporatist theory in the late 1970s and early 1980s (Newman 1981; Williamson 1989). From the Right, the critique focussed on social ‘facts’ such as the growth of bureaucracy and the inability of the state to deal with the proliferation of demands and the call was for the restoration of order and the abolition of state interventionism (Crozier, Huntington and Watanuki 1975a). Marking invasion of political theory by economists, theoretical support for the individualist state was largely provided by public choice theorists (Self 1985, p. 49). In turn, public choice theory provides the analytical framework for economic liberalism, an influential prescriptive theory of state-economy relations and a leading element of the New Right or neo-liberal electoral coalition which came to prominence in a number of countries, including Australia, during the mid to late 1980s (Head and Bell 1994, p. 37). Chapter 2 explicates the neo-Marxist thesis of the overloaded state, the principles underlying public choice interpretations of the observed problems, the major propositions of sustainability and the issues it presents for these theories. Chapter 2 also specifies the meaning of terms including corporatism, neo-corporatism, economic liberalism, neo- Marxism and neo-conservatism as they are to be applied throughout this work. 1.3.1 Neo-Marxist systems theory in brief Since the mid-1970s doubts about the efficiency of the state have dominated the political as well as the social-scientific scene. These doubts can be explained by a series of social, political, and theoretical changes which have taken place both in Western Europe and beyond it in all the OECD countries (Offe 1996, p. 105). The initial response to the perception of government ‘overload’ was the revival of Marxism in the form of theories that set out to explain the extra demands being placed on the state in conditions of late capitalism. 13 For all their elaborations, Marxist theorists naturally continue their historic mission of explaining the growth of government in terms of its utility for capitalism, and its failures in terms of capitalist contradictions (Self 1985, p. 18).
13 According to the neo-Marxists, ‘late capitalism’ denotes a period in capitalist history when social developments are still passing through ‘contradictions’ or ‘crises’ (Habermas 1989b, p. 266).
7 Distinctive concepts of this body of neo-Marxist theory are the legitimation and steering system crisis arguments of Habermas, Offe and O’Connor, the well known heirs to the critical theory school (Habermas 1968; Habermas 1976; Habermas 1971; Habermas 1989b; O’Connor 1973; O’Connor 1984; O’Connor 1984b; Offe 1975a; Offe 1975b;; Offe 1983; Offe 1984a; Offe 1984b).14 Habermas and Offe, for instance, theorise state failure in terms of rationality and legitimacy deficits where rationality deficits result from administrative failures due to the contradictory imperatives characteristic of the late capitalist state and legitimacy deficits from the inevitable and progressive bureaucratisation of everyday life (Pusey 1987, pp. 92-98). Legitimacy deficits build up so that ‘a legitimation crisis threatens at the point where an ideologically secured and pseudo-legitimate social consensus is revealed as naked power’ (Pusey 1987, p. 96). Historically, this neo-Marxist body of theory arose before the recognition of the importance of the environmental problematic. Thus the categories that make up the basic theoretical framework remain drawn from Marxist economics and do not take nature into consideration (O’Connor 1973, pp. 1-10). Such complex policy issues as environmental problems are taken to be generic to the interventionist state and environmental issues are not specifically incorporated into the analysis. From this systems perspective, failure to manage environmental problems is a social issue, rooted in some particular relationship between the state and society and is related to the way in which components of the social system adapt or fail to adapt to each other (Pusey 1991 p. 17; Weale 1992, p. 47). The approach taken to environmental issues is the same as :is taken to other issues causing state ‘overload’: …welfare states are rapidly ceasing to be a viable solution to the socio- political problems generated by late capitalist societies because the systems of economic and social life are not in harmony with the requirements of the administrative-political system (Keane 1984, p. 14).
14 Held gives a ‘negative’ definition of critical theory and its theorists: ‘against Hegel’s claim that history is the process of reason (Vernunft) coming to be in self-consciousness- that reason unfolds in practice reconciling thought and object, freedom and necessity- they sought to show the extent to which human reason is still ‘unreasonable’; that is, tied to material conditions and practices often only dimly reflected in human consciousness’ (Held 1980, p. 24). The major figures writing on the themes encompassed by ‘critical theory’ included Adorno, Marcuse and Horkheimer (Geuss 1981; Held 1980; Piccone 1978).
8 1.3.2 Public choice theory in brief The basic concepts of public choice theory developed in response to the observed problems of the ‘overloaded state’ and as a reaction to the neo-Marxist analysis. Public choice theory is equally critical of the operations of the interventionist state, although opposing in principles to the neo-Marxist analysis. Like other theories that explicate the nature of the individualist state, the basic assumption is of political individualism (Self 1985). Hence there are some similarities to classical liberalism, with its emphasis on the need for the rights of the individual to be defended against the state; on individual responsibility and belief in the value of the market rather than equality (Jaensch 1992, p. 33). However, public choice theory remains the most directly influential of the individualist state theories. Political programs showing its influence have developed in prominence in Australia since the mid-1980s, at both federal and State levels (Bell 1997; Head and Bell 1994; Kelly 1992). Public choice theory is the leading example of the theory type that applies the principles of economics to political theory (Brennan and Lomasky 1989; Buchanan 1989; Buchanan and Tulloch 1962). Hence it is the main carrier of the ‘modern invasion of political science by economists in the neoclassical tradition’, which emphasises the value of the fully competitive market in obtaining maximum ‘all-round satisfaction’ (Self 1985, p. 49). By viewing the political system as the interaction of self-regarding egoists, the public choice theorists apply market logic to political behaviour. The aim is to achieve open competition by freely acting individuals in both the political and economic arena. Public policies are seen as being formed and acted upon according to their value to the individual voter. According to these assumptions, the ‘overburdened’ state comes about because the ‘selfish’ voter will always vote for an increase in public goods. Hence policy failures relate to such causes as the lack of provision of selective incentives to the individual, or from the determination of bureaucrats to maximise their own interests. As with neo-Marxist theory, the environment is not integrated into any normative element of the theory. Resistance and inefficiencies in relation to environmental reform, as with other problems of the ‘overloaded state’, are perceived as reflecting the selfish motives which dictate the actions of politician, bureaucrat and individual voter.
9 Public choice theory incorporates the basic behavioural hypothesis that persons in political and administrative positions of decision-making power are not, in themselves, much different from the rest of us. They tend to be personal-utility maximisers, and they will be influenced directly by the reward-punishment structure that describes their position in the institutional hierarchy (Buchanan and Wagner 1977, p. 118). 1.3.3 The environmental problematic and the emergence of sustainability principles The disputation between the neo-Marxist and the public choice theorists centres on the different interpretations of the role of the state and of the status of the individual. The position taken in this thesis is that the neo-Marxist perspective offers a robust form of analysis of society prior to the development of the environmental problematic. However, the fundamentals of neo-Marxist theory, and of the public choice alternative, are antagonistic to the solutions offered by sustainability concepts to environmental issues. The environmental challenge raises new demands that cannot be resolved through the application of theories drawn from an understanding of state failure, and an assumption of the instrumental value of nature. The publication of the Brundtland Report of 1987 lent credibility to the concept of sustainable development on the grounds of both intergenerational and intragenerational equity: Sustainable development is development that meets the needs of the present without compromising the ability of the future generations to meet their own needs. It contains within it two key concepts: the concept of ‘needs’, in particular the essential needs of the world’s poor, to which overriding priority should be given; and the idea of limitations imposed by the state of technology and social organisation on the environment’s ability to meet present and future needs (World Commission on Environment and Development 1987, p. 43). The concept of sustainable development did not originate with the Brundtland Report, having previously been used in the discourse of renewable resource management (Dryzek
1997, p. 124). However, since this Report, the challenge posed by the environmental problematic has been framed politically in terms of sustainability principles. In Australia, the government responded to the emergence of the discourse of sustainable development with the National Strategy for Ecologically Sustainable
10 Development (Commonwealth of Australia 1992). Objectives and principles of ecologically sustainable development now recognised in Australia by both government and environment groups include: integration of economic and environmental goals; intergenerational equity; conservation of biodiversity and ecological integrity; recognising the global dimension; the precautionary principle; appropriate valuation of environmental assets and community participation (Harding 1998, pp. 27-29). The Brundtland Report came more than a decade after the formulation of the neo- Marxist crisis theories of the state and of public choice theory. However, the development of sustainability principles gives key criteria by which to measure the success of political programs in environmental management, both before and after Brundtland. The key criteria for assessing policy development, which capture the main elements of sustainability, are: a) intergenerational and intragenerational equity b) community participation in environmental decision-making c) the appropriate valuation of the environment. The thesis examines the sustainable development debate in the context of the emergence of a ‘new politics’ of the environment in NSW. As in other parts of the developed world, this ‘new’ political arena is largely concerned with pollution policy prescriptions (Weale 1992, p. 33). At a time in history when a battle is pitched between state and market for the ‘commanding heights’ (Yergin and Stanislaw 1998), this ‘new’ politics challenges the accepted polarisation of the political spectrum along the lines of state or market steering capacity. Questions are now raised on both the ‘Left’ and ‘Right’ sides of the political spectrum about the issue of the environment versus development (Jaensch 1992, p. 35). Rather than the materialist and reductionist themes derived from the neo-Marxist and public choice frameworks, this ‘new politics’ of the environment is informed, to a varying degree (Harding 1998, pp. 61-81), by a more ecocentric and holistic framework for analysis (Pearce at al 1993, pp. 18-19). Hence it looks to the establishment of institutional frameworks that are more suitable for holistic considerations in decision- making and less inclined to problem-displacement across national borders or between generations. Such questions have not been theorised in the classical political theories and thus not incorporated into the political programs developed in response to the problems of the interventionist state.
11 1.3.4 Programmatic applications and institutional reform agenda Chapter 2 goes on to nominate the analytical tools used to trace and analyse the historical material of the thesis. These are the key co-ordinating institutions of the liberal democratic state: the state, the bureaucracy and the democratic process. Finally, Chapter 2 draws out the association between neo-Marxist theorising and corporatism and examines the application of public choice theory in the political prescriptions of economic liberalism, in relation to these institutions. The neo-Marxist understandings of power relations and policy formation have not been applied through a specific political program. However, the neo-Marxist critique of the contradictions associated with the operations of the late capitalist state contributed to the corporatist theory that grew to prominence in the discourse of political and social science from the 1970s onwards (Newman 1981; Scholten 1987; Williamson 1989). On this view, the corporatist state is a product of the requirements of advanced capitalism and acts as a ‘defensive shield for capitalist interests, which can take a more moderate or extreme form’ (Self 1985, p. 123). The corporatist reform agenda was adopted to a varying degree by various social democratic governments during the 1970s and early 1980s (Schmitter 1983, p. 896; Williamson 1989, p. 150). Although criticised by both Habermas and Offe, corporatism is seen by neo-Marxists as a temporary, but inevitable, stage in the evolution of the capitalist state (Newman 1981, p. 231; Schmitter 1983, p. 904). In its ‘societal’ version, characteristic of the recent Australian experience, corporatism comes about in society when ‘it is time for realistic political incorporation of the subordinate classes’; it relies on ‘ideological consent and persuasion’ and ‘emphasises rather than represses workers industrial organisation’ (Newman 1981, p. 46).15 On this view, it develops as a rationale of checks and balances against the perceived dysfunctional characteristics of the bureaucracy and as a way to ensure both legitimation and accumulation. The corporatist program is geared to maintain capitalist accumulation while affirming the guiding role of an interventionist state through the establishment of selected and controlled consultative structures, to allow the reaching of
15 State corporatism is autocratic and elitist and has been allied with fascism because it involves the exercising of direct state domination (Newman 1981, p. 46).
12 a pre-determined consensus between potentially conflicting interest groups. Parliamentary coordination is thus shortcircuited. In contrast to the systems-based approaches of corporatist and neo-Marxist theory, public choice theory is individualist and action-based. Its assumptions and predictions are evident in economic liberalism (sometimes termed economic rationalism), the leading prescriptive element of the electoral coalition that has been termed the New Right (Head and Bell 1994, p. 37), or by others, neo-liberalism (Bell 1997; Giddens 1998). This ‘constellation of ideologies’, including neo-conservatives, libertarians and economic nationalists or economic liberals, which emerged in the UK and America in the 1970s, and in the 1980s in Australia, is generally associated with a belief in small government and free enterprise (Jaensch 1992, pp. 35). Thus the neo-Marxist, corporatist analysis and the individualist perspective on the causes of state ‘overload’ involved fundamentally different concepts for the role of the state, the bureaucracy and the democratic process. Each of these approaches responded to the perceived inadequacies of the welfare state with characteristic policy targets for the institutions that coordinated the relationship between the state, the economy and society. Therefore, in a particular historical instance, the results of a particular political program can be observed in its effects on the target institutions. The historical material of the EHCA (NSW) 1985 episode is analysed by using these analytical categories in later chapters. 1.4.0 Theme (2): political responses in NSW to the environmental challenge The thesis traces the environmental problematic by means of a regional historical analysis of environmental policy concerning toxic chemicals. In Section B, Chapters 3 and 4, the case study of the EHCA (NSW) 1985 is used as a ‘stalking-horse’ to trace the policy response to the challenges of the first and second environmental phases in Australia, over a period from the late 1970s until the end of 1997. Chapters 3 and 4 site the events of the case study in a period during which both major political parties in Australia have undergone ideological redefinition. As Australia has matured into a more independent nation, both the Liberal Party of Australia and the Australian Labor Party (ALP) have repositioned themselves on the political spectrum. By the late 1970s, the ‘technocratic’ federal government of Gough Whitlam of 1972-75 had already transformed the ethos of the ALP (Kelly 1992, p. 21), shifting it
13 away from its ‘labourist’ roots towards the sympathies of the educated middle-class (Jaensch 1992, pp. 231 and 247).16 The ALP survived Whitlam’s dismissal and the defeats of the 1975 and 1977 federal elections. The post-Whitlam feeling in the ALP was that his economic management failure must be reversed. The policy response to the first phase of toxic chemicals politics was initiated by the successful Labor government of Neville Wran in NSW in the late 1970s and early 1980s. Wran’s success in the linking of business and state interests, while maintaining a strong grip on the leadership of a political party structurally linked to the union movement, was instrumental in the return of the ALP to power in Canberra in 1983, under the leadership of Bob Hawke (Jaensch 1992, p. 246; Kelly p. 22). The policies of the Hawke government reflected the embracing by the ALP of democratic socialism/ social democracy. 17 However, as was common in Western Europe (Williamson 1989, p. 150), this was social democracy in a corporatist guise (Head and Bell 1994, p. 55). Under Hawke as Prime Minister and Paul Keating as Treasurer, the ALP emerged as a party now primarily concerned with economic management, its priority being the steering of the economy. It replicated an international movement ‘which saw Labour parties around the world admit that the power of the state to deliver prosperity and justice to its citizens was failing’ (Kelly 1992, p. 31). Strong and stable partnerships between business, state and the unions were seen as the answer. Through the influence of Hawke’s factional support and electoral successes, this corporatist perspective was able to influence policymaking at federal and State levels until the late 1980s (Jaensch 1992, p. 236). The centralist policies of Labor, and of the corporatist Hawke government in particular, also influenced environmental policymaking over this period. Even though the Australian Constitution does not mention the environment, which is commonly accepted as a residual power to be left to the States, the Hawke government chose to use
16 Jaensch traces the gradual qualification in the Labor Objective since the late 1890s, as it moved from ‘nationalisation’ to ‘socialisation’ to ‘democratic socialisation’ (Jaensch 1992, p. 231). 17 According to Jaensch, ‘democratic socialists accept a mixed economy and a Welfare State as a move in the right direction; social democrats seek greater economic and social security and equality as the final aim’ (Jaensch 1992, p. 32).
14 Commonwealth powers on behalf of the environment through judicial interpretation of s51 of the Constitution (Kelly 1992, p. 528).18 The challenges for policymaking associated with the second phase of the environmental problematic emerged contemporaneously with a new political force in Australia. In the late 1980s, Nick Greiner became Liberal Premier of NSW, on an economic rationalist platform for administrative reform (albeit a ‘warm’ one 19). Greiner represented a new version of the Liberal Party, refashioned under the influence of the ‘New Right’ and the policies of Ronald Reagan in the USA and Margaret Thatcher in the United Kingdom (Jaensch 1992, p. 275; Kelly 1992, pp. 252-270). The new federal Opposition Leader after the 1990 elections was John Hewson, who immediately began work on Fightback, an ‘economic rationalist’ manifesto, proposing taxation and employment reform (Davis et al 1993, p. 133). The policies of Hewson and Greiner, characterised by a commitment to small government and market forces, reflected a Liberal Party that was more ideologically programmatic than ever before in its history (Jaensch 1992, p. 281). Thus the early 1990s saw the ascendancy of free market economics and the denial of class politics in Australia (Kelly 1992, p. 685). Neo-liberal policies have been influential across the political spectrum and at both federal and State levels (Bell and Head 1994). At the time of writing, in the late 1990s, John Howard, a neo-conservative who has long stood for small government, traditional values, individualism and free enterprise, is installed in Canberra as the Liberal Prime Minister. Federalism, rather than centralism, is now the ideology underpinning the division of power between States and the Commonwealth, with implications for the States in terms of environmental responsibility. In NSW, after a period when independents held the balance of power over the governing coalition, the Labor Party was returned in 1992 under Bob Carr, and remains in power. While this Labor government has attempted to reconcile new forms of
18 Specified powers included under s51 were used, such as the corporations power. For example, in 1983 the Hawke government challenged the authority of the Tasmanian Hydro-Electric Commission (deemed a corporation) to build the Franklin Dam in Tasmania. The dam did not go ahead (Harding 1998, p. 227). 19 As Greiner put it: ‘in our understandable enthusiasm for economic rationalism, let us not forget that the one and only purpose of all this political activity is people’ (Greiner 1985, cited in Jaensch 1992). Greiner’s philosophy reflected the economic liberal, rather than the neo-conservative, aspect of the ‘New Right’ (Laffin and Painter 1995, p. 6).
15 interventionism with market efficiencies, both parties now come from an ideological position which is sceptical of government solutions to social and economic problems and other policy issues, including the environment (Davis et al 1993, p. 253). In analysing the two periods of reform, Chapters 3 and 4 examine the events leading up to the formulation of the EHCA (NSW) 1985, and the bureaucratic and democratic processes impacting on the construction of the legislation and its implementation. The EHCA (NSW) 1985, once described as an evolutionary piece of environmental legislation, is shown to be a policy failure in ecological and democratic terms. 1.4.1 The corporatist response to the first phase of the environmental challenge The first World Conference on the Environment in 1972 marks the recognition of environmentalism as a significant social movement (Harding 1994). By the late 1970s, a newly politicised environmentalism had shifted its attention from concerns with resources and ecology to a new focus on pollution and toxic chemicals. Intense public attention was paid to incidents concerning toxic materials and wastes. Evidence of pollution and environmental degradation as a result of post-World War 11 growth, technological developments and state failure, became obvious to the scientific community and the wider public (Bates 1987; Eckersley 1996; Weale 1992). Legitimacy became an issue, with public suspicion mounting that these incidents reflected not only the irresponsible attitude of industry, but administrative mismanagement by the state
(Weale 1992). Hence the political response marked the need to address the externalities of pollution in terms of both legitimacy and accumulation requirements. The EHCA (NSW) 1985 emerged along with this first wave of the environmental response. In the context of the environmental policy of the last two decades in NSW, the EHCA (NSW) 1985 is notable in several ways. It was the inaugural attempt at the ‘umbrella’ concept of chemical control for Australia, allowing the regulation of chemicals from the ‘cradle to the grave’, and thus marked an attempt to make the transition from the era of prohibition to that of prevention. Secondly, responsibility for all stages of the licensing of pollution due to chemicals could now be located with one centralised state authority. Hence the EHCA (NSW) represented the first attempt at
16 integrated permitting of chemicals pollution, as distinct from a regulatory tradition where various government departments issued licences according to sectorial legislative mandates. Thirdly, the terms of the legislation were arrived at through a process of ‘public consultation’, thus marking an emerging rhetoric of public participation in environmental policy-making (Hansard 1985d, p. 4094). The consultation process was directed by the SPCC, placing the state in the role of selecting the interest group representation. Too, peak bodies representing labour and the chemicals industry played a formalised role in policymaking in both the negotiations leading up to the formulation of the legislation and in its implementation. Finally, the chemicals notification and assessment scheme associated with the EHCA (NSW) 1985 was reliant upon internationally set levels of chemicals controls, OECD measures designed, not only to assist in the assessment of chemicals, but to facilitate the lowering of trade barriers. Thus the adoption of the scheme signified the impact of the system of globalising capitalism upon Australian public policy, as the economic decisions of 1983 ‘harnessed the Australian economy to the international marketplace’ (Kelly 1992, p. 76).20 Chapter 3 goes on to show that this response in NSW to the first period of the environmental challenge reflected a political agenda determined through a mix of functional interest group representation, labour incorporation and scientific risk management. Such priorities were accommodated readily into the policy preferences of the ‘command and control’ regime of pollution management, the most usual regulatory response to the environmental issues of this period.21 1.4.1.1 Results of the first phase of reform As landmark policy, the EHCA (NSW) 1985 was to allow the reform and rationalisation of the large and overlapping existing legislation on toxic chemicals, and was thus to be ‘one of the most significant and comprehensive pieces of pollution control policy yet introduced in Australia’ (Hansard 1984, pp. 3374-3379). Instead, its history shows it as little used and unwieldy, and as having failed to confront an ‘entrenched system of
20 The dramatic events of 1983, when Australia saw a deregulation of its exchange rate, of banking capital and of the financial system, transformed the economics and politics of Australia, signalled the ‘demise of the old Australia-regulated, protected, introspective’ (Kelly 1992, p. 76). 21 ‘Command and control’ generally involves setting ‘acceptable discharge levels’ and establishing systems to ensure compliance (Ramsey and Rowe 1995, p. 523).
17 control of toxic chemicals resistant to rationalisation and reform’ (Benn 1996, p. 476; Benn 1997). Analysis of the policy formation processes and of the terms of the legislation leads to the conclusion that the values and commitments embedded in the legislation reflect the needs of the late capitalist system for accumulation and legitimation, rather than addressing the growing need to protect the environment from the effects of toxic chemicals. This policy response to the environmental problematic is elucidated in terms of the policy process and structural forms of corporatist governance. Underlying the steering, centralising approach taken by the state lay the strong commitment of corporatism both to economic growth and to the diminishing of state ‘overload’ by reducing complexity through limiting political choice. Effective and innovative environmental policymaking by the corporatist state is shown to have been compromised by its role of ensuring the consensus between business and labour interests (Jaensch 1992, p. 347). 1.4.2 The second phase of the environmental crisis and the programs of the individualist state Chapter 4 traces the history of the EHCA (NSW) 1985 as it reflects the response to the second period of the environmental challenge in NSW. The conditions of this period are characterised by global manifestations of environmental crisis, an increasingly institutionalised environmentalism at the global and regional levels (Harding 1998, p. 240), and a shift towards incentives-based strategies to encourage reduction of pollution (Ramsey and Rowe 1995, pp. 523-524). The fiscal pressures from the internalising of environmental costs are increasing, as the degree to which natural capital can be drawn down must inevitably decrease. Considerations of the global nature of environmental problems and their balancing against the autonomous expression of local interests has led to a reassessment of the role of the state in environmental management. The issue of global pollution highlights the essentially open-access nature of global resources and demonstrates the difficulties to be faced by the state as the local, mechanical regulator of pollution control programs (Pearce et al, 1989, p. 12). The state has been challenged by its tenuous position in a global economy dominated by trans-national companies. With toxic chemicals as with other environmental impacts, discrete policy formation and
18 policy closure has become an increasingly difficult task in the face of the ‘seamless web’ of interrelated environmental problems.22 In this second phase, government policymakers have been influenced by the rhetoric of sustainable development and industry by the requirements of corporate environmental management. There has been a new emphasis on the minimising of the potentially costly harm from commercial activities, an acceptance that risk management overlaps with environmental management, and recognition of the need for broad, integrated planning at both national and global levels (Matten 1996a; Matten 1996b).23 These changes in the rhetoric of environmental management have been associated with an increased use of price incentive modification as a policy instrument, with less emphasis being placed on state-led regulation (Common 1995, p. 158). This policy shift has been general across the developed world, with all OECD countries now having accepted the principle of ‘polluter-pays’ (Beder 1996, p. 100). Such changes in environmental policy parallel the encroachment made by the market into the realm of the state over the last decade, as these two steering mechanisms of society have engaged in the battle for the ‘commanding heights’ (Yergin and Stanislaw 1998) In Chapter 4, policymaking on toxic chemicals is shown to reflect these developments, as they have been incorporated into the broad electoral program of the individualist state. The EHCA (NSW) 1985 has been marginalised and its functions absorbed by reforms largely featuring the new policy priorities of deregulation, privatisation and devolution. These have been spelt out by legislative initiatives in NSW such as the Protection of the Environment Administration Act 1992 (PROTEA), the Waste Management and Minimisation Act 1995 (WMMA), the Integrated Development Assessment (IDA) Act 1997, the Local Government Amendment (ESD) Act 1997, the Protection of the Environment Operations Act (POEOA) 1997, the Contaminated Lands Management Act 1997, and the Load-Based Licensing Amendment to the Pollution Control Act 1997.
22 In an example of problems with discrete policy formation concerning chemicals, farming procedures implemented to alleviate erosion are very dependent on the use of herbicides (Bosso 1987, pp. 236-237). 23 The term ‘integrated’ is used in several ways in environmental management. It can be taken to mean integration of environmental policy into other policy-making areas. In another usage, Weale contrasts integrated pollution control, where all receiving media are considered in their interrelationships, with the uniform approach where the focus of control is on specific media (Weale 1992, p. 111).
19 1.4.2.1 Results of the second phase of reform Chapter 4 goes on to show the relationship between the deregulation and devolution of state authority measures, characterising the second era of pollution management, with the reform agenda of the individualist state. It traces the changes in political alliances as the bond between the corporatist state, labour and business is overshadowed by the more powerful union between neo-conservative elements in society and resource and development interests. ‘Polluter-pays’, privatisation and self-regulation by industry are the driving principles of the new regime of economic liberalism and reflect the agenda, prescribed by each of the various elements making up the New Right constellation, to limit the role of the politico-administrative system. In this new platform, public participation in decision-making is now enabled through the devolution of responsibility to local government and the community, and new partnerships with industry, rather than the selected interest group representation of the first period. The reforming policies of the individualist state are shown to have failed to address the environmental problematic. Administration deficits are identified in relation to the new demands placed on an unprepared community, industry and the local government sector. The complex tasks of assessing environmental value in the implementation of polluter pays are also stretching the administrative capacity of the devolved state. Fragmentation and corporate capture associated with the bureaucracy continues to limit the integration of policy concerning toxic chemicals into the other realms of policymaking. Legitimacy deficits are shown to have appeared, associated with attempts to lessen legislated rights to public participation, to depoliticise environmental decision-making and to introduce efficiency measures that threaten environmentally sensitive areas. 1.5.0 Theme (3): theoretical bases of contemporary political programs In Section C, Chapters 5 and 6, the successive periods of environmental policymaking concerning toxic chemicals in NSW are analysed in detail by examining the implications for the key coordinating institutions which have been targeted for policy reform. The discussion traces the incompatibility between the reform agenda of programs informed by corporatist and public choice political theory in respect of: a) the state
20 b) the bureaucracy c) the democratic process
d) sustainability criteria. 1.5.1 Neo-Marxist analysis and the corporatist phase Chapter 5 shows that the political context of corporatism ensured social stability and resolved conflicting demands upon the state over this period. It allowed the ‘exercise of public authority by organised group interests’, involving organised groups in more disciplined and co-operative behaviour than pluralism, and thus excluded dissenting groups (Self 1985, p. 114). Hence the events of the case study are in accordance with a political platform functioning to ensure the achieving of a predetermined consensus of sustained economic growth. The argument in this chapter shows how the major initiatives of this response to problems of state ‘overload’ can be analysed according to neo-Marxist propositions concerning the contradictory role of the advanced capitalist state. Corporatist structures and processes ameliorate the crisis conditions of capitalism through structural reforms such as the incorporation of labour and an emphasis on technical and instrumental planning in order to achieve the required economic growth (Jaensch 1992, p. 32).24 Thus both legitimacy and accumulation functions of the state were to be addressed. 1.5.1.1 Neo-Marxist theory and sustainability deficits Again using the key co-ordinating institutions as a tool, the neo-Marxist explanations underpinning the corporatist response to the overloaded state are analysed in relation to their inability to incorporate sustainability principles. Sustainability deficits are identified in relation to the coordinating institutions characteristic of corporatism: the centralised decision-making processes of the corporatist interventionist state; the institutionalised bureaucracy and the processes of selected interest group representation. These identified deficits highlight the need for structures enabling political decentralisation, integrated policymaking and institutional transparency, if sustainability criteria are to be achieved.
24 Neo-Marxist theories are ‘structurally-based’, in that they emphasise the importance of surrounding factors on government behaviour. In contrast, pluralist theories of political behaviour are action-based in that they focus on the policy process itself. Some political programs, such as corporatist, involve both considerations (Self 1985, p. 47).
21 1.5.2 Public choice theory and the individualist phase In Chapter 6, analysis of the second phase of the policy response in NSW in terms of the reforms of the state, the bureaucracy and the democratic process explicates the neo- liberal response. The history of the EHCA (NSW) 1985 since the late 1980s is shown to reflect the strong influence of public choice principles, acting through the prescriptive theory of economic liberalism, an element contributing to the broad political philosophy of the New Right. The Act has been subsumed and marginalised by legislation reflecting the priorities of public choice. In other words, it has been sidelined by policies promoting devolution of the state, deregulation, economic efficiency and individual choice, and facilitating the transactions of the political market place. Thus the centralised regulatory approach characterising the first period of reform has been discarded and control of the total life cycle of a contaminant has been no longer seen as a priority. This perspective has its chief intellectual source in principles of public choice theory such as the ideologies of freedom and individualism and the belief in the influence of the rational, self-interested, individual voter on the political system. The fortunes of the Act in this second period are shown to reflect the broader neo-liberal agenda to reduce the scope and power of the state, and to re-allocate steering responsibility to the markets. The implication for environmental policy is that it should leave environmental issues largely to the markets to resolve. Chapter 6 goes on to show that issues of trust and legitimacy have arisen as, in accordance with public choice principles, the bureaucratic apparatus standing between the state and the public has been dismantled and new social partnerships have emerged as the method of environmental management. Utilisation of the contractarian principles of public choice by policymakers is shown to have resulted in parliamentary initiatives to lessen legislated public participation in return for industry compliance with self- regulatory measures. Information dissemination has become a political priority as the management of the environment has become individualised. The chapter shows, however, that not all aspects of the sustainability deficit associated with this second period of reform can be attributed to the influence of public choice theory. The persistent agency capture reflects the ongoing relationship in this
22 country between bureaucratic and industry elites in the chemicals sector. Other elements of the neo-liberal agenda, not informed by public choice principles, also contributed to this failed period of reform. They include policies that can be sourced in the ideas of conservative social populism and of neoclassical economics. Other policies are shown to have been informed by Lockean principles of property rights and the political philosophy of ‘free market environmentalism’. 1.5.2.1 The theory of the individualist state and sustainability deficits The case analysis indicates that the rhetoric of sustainable development has not been accompanied by the institutional change required for any progression beyond a situation of ultra weak sustainability. Chapter 6 concludes that the success of environmental management in this second phase must also be questioned, with areas of democratic decision-making and administrative capacity left unaddressed. While a more rigorous application of public choice could have broken the ties between industry and the bureaucracy which continue to inhibit true reform, in many ways its underlying principles are in contradiction to the essential requirements of sustainability. Examination of other principles underlying the normative concept of the individualist state highlights the incompatibility between a devolved state and fragmented administration, the political market place and sustainability criteria. It underscores the need for structures enabling re-regulation, for devolved bureaucratic power and for environmental citizenship. This is a program that the neo-liberal philosophy cannot prescribe for, as the essential element linking its component ideologies is the limiting of the state. 1.6.0 Conclusion: the failure of established programs Chapter 7 concludes that the leading political theories of the last two decades, as they have been played out in reform agenda for the three major coordinating institutions of the liberal democratic state, have not provided for the management of the environment. They have failed to prescribe for the sustainability principles that have been identified as key criteria for environmental management. 1.6.1 Thematic issues: sustainability deficits at the global level Chapter 7 rounds out the discussion by placing this regional study in the context of the benchmarks set for global environmental governance by sustainability criteria. It concludes that the global environmental challenge throws up thematic issues that pose
23 major problems for established systems of governance. These include integrated policymaking to address ecological interconnectedness by global and local decision- making structures and the redistribution of wealth from the North to the South, all in the context of intragenerational and intragenerational equity. 1.6.2 Recent theoretical developments Since the fundamental elements of sustainability are not addressed by the application of normative theories on the long-accepted themes of the state and the market (Eckersley 1996, p. 79; Weale 1992, pp. 37-65), some theoretical developments offering another perspective on the role of the state and bureaucracy, on democratic processes and on the relationship between nature and culture are examined in terms of their suggestions for institutional change. This section of the thesis examines a selection of theory ranging from a right-wing version of systems theory (Luhmann 1982; Luhmann 1989), to post- structuralist critiques of modernism and of the dominance of male values (Lyotard 1984; Salleh 1997), to an analysis of the global risk society (Beck 1998; Beck 1995; Beck 1992), and to new understandings of democracy (Dryzek 1990; Miller 1993). The chapter concludes that new perspectives on democratic processes have the potential to foster the more inclusive decision-making required for sustainability. Aside from such suggestions, the shortcomings of these theories highlight the value of this study. On the whole they do little to inform programmatic change in the direction of sustainability. In contrast, through an examination of the challenges that the environmental problematic has posed to liberal democratic institutions, this study illuminates some of the specific structural changes required if sustainability is to be achieved.
24 Chapter 2 Theoretical Analysis and Political Prescriptions: the Overloaded State in the Context of Sustainability Criteria All knowledge of cultural reality, as may be seen, is always knowledge from a particular point of view (Weber 1949, p. 57). 2.1.0 Introduction: theories of the overloaded state This chapter examines the major political theories and associated political programs that evolved in response to the observed problems of the overloaded state. Having described the dominant theoretical developments of the post-Keynesian, post-1960 era, the environmental problematic is introduced in terms of the challenges offered by the theoretical principles of sustainability to the conventional theories. The chapter goes on to show how the environmental crisis has altered the criteria for good political theory. The conclusion is then drawn that applications of the traditional political theories must now incorporate sustainability criteria into their functions if they are not to incur fresh operating deficits. The key coordinating institutions of the democratic state are justified as a means by which to analyse the historical material in later chapters and the chapter concludes with the reform agenda for these institutions as prescribed by the doctrines associated with corporatism and with the individualist state. The evolution of political ideas concerning the operations of the liberal democratic state since 1945 has shown an increasing influence of economic thought upon politics. As well, in line with a move away from an idealistic theory of politics, there has been a shift from a benevolent to a malevolent perspective on the state (Self 1985, pp. 17-20). The depression of the 1930’s led to the development of economic theories critical of the markets. Thus Keynes and the welfare economists who followed him related involuntary unemployment and externalities such as pollution to failures in the operations of the markets. Economic theory was used to justify the benevolent welfare state, the implementation of political programs based on state interventionism and the assumption of social responsibility by the state (Self 1985, pp. 20-21). Liberal theory also lent support to the increasing overlap between economic and political theories. The economic freedoms associated with the welfare state, which combines capitalist freedoms and inequalities with various egalitarian welfare policies, can be associated with the liberal concept of equality.
25 …the same principle that tells liberals to allow market freedom-i.e. that it holds people responsible for their choices-also tells them to limit the market where it penalises people for reasons other than their choices (Kymlicka 1990, p. 85). But by the middle to late 1970s, the welfare state and its underpinning theory was in trouble. A huge growth in spending, and increasingly complex demands upon the state, indicated that the Western democracies were facing the problem of government ‘overload’ (Self 1985, p. 43).1 Significantly, the fact that the institutional commitments of ‘mainstream’ political theory of liberalism did not keep up with its theoretical commitments (Kymlicka 1990, pp. 85-87; Pierson 1993, pp. 179-181) resulted in the growth of two more radical and polar opposite streams of political thought. Thus radicalisation from the Left saw the renaissance of critical theory in the form of various neo-Marxist schools 2; and from the Right, the expanded influence of public choice theory and a substantial reassertion of liberal theory. 2.1.1.0 Neo-Marxist deficit theory The revitalising of Marxist thought in the early 1970s was ‘a striking phenomenon’ (Self 1985, p. 18), and until the late 1970s and early 1980s, it remained as the most widely discussed framework for analysing the developments of the modern relations between government, economy and society. Although these theorists were diverse in their interests, its leading exponents, such as Offe, Habermas and O’Connor, were committed to the major principles of critical theory. Critical theory, standing in the line of ‘development, reaction and counter- reaction’ to the philosophy of Hegel and Marx and aimed towards a ‘maximally enlightened self-awareness’, proffers an emphasis on both theory and practice (Geuss 1981, p. ix and p. 353).3 The dominant critique is of the positivist endorsement of an
1 The cost of government, due to social, technological and economic changes, grew much more than the national economies. Hence for six Western countries the average annual growth in public expenditure between 1951 and 1980 was 6.9%, whereas the increase in take-home pay available for private consumption was only 3.1% (Rose quoted in Self 1985, p. 43). 2 Neo-Marxism is a term loosely applied to theories or methods of analysis which draw on Marxist concepts but which amend them by drawing on other intellectual traditions (Marshall 1998). 3 Piccone argues that the first phase of critical theory can be thought of as a ‘code-name’ for Marxism in general; the second phase of critical Marxism, explicated in the theory of the Frankfurt School, can be distinguished by a shift from economic determinism and a new emphasis on political sociology and cultural theory (Piccone 1978, pp. 3-9). The leading theorists of the Frankfurt School are Adorno, Horkheimer, Marcuse, and Habermas (Held 1980, pp. 378-399).
26 ‘objectifying’ cognition, which is seen to prevent emancipation and enlightenment through its denial of ‘reflection’ (Geuss 1981, p. 2). Positivist approaches result in a ‘constricted concept of rationality’ as they entail ‘the loss of a concept of the unity of the socio-historical subject which could reflect on the social totality’ (Kortian 1980, p. 59). Critical theory developed with the aim of exposing ‘non-cognitive beliefs (eg. value judgments) which are masquerading as cognitive’ (Geuss 1981, p. 28). This was to be achieved because of the ‘self-referential’ nature of critical theory: ‘a critical theory is itself always a part of the object-domain which it describes; critical theories are always in part about themselves’ (Geuss 1981, p. 55). Critical theorists of the Frankfurt School united around this perceived need for a rejection of the positivist understanding of science (Held 1980).4 Criticisms of technological determinism are also evident, most strongly expressed in the work of Marcuse as he argues against ‘technical and scientific overdevelopment’ (Marcuse 1969, p. 15). Another major theme developed by critical theory concerned the Weberian normative understanding of the bureaucratic administration of law and justice. For Weber, as acceptance by society of a governing God or nature recedes, the state becomes ‘a relation of men dominating men, a relation supported by means of legal violence’ (Weber 1984, p. 33). The fundamental contention is that conditions of capitalism are inevitably associated with a tension between the democratic state and its organisational forms. However, critical theory departed from Weber’s perception that law and justice can remedy problems with legitimacy due to the erosion of traditional hereditary and hierarchical forms of domination. It argued that the bureaucratic processes of rationalisation lead inevitably to chaotic and threatening aspects for society (Giddens 1972, p. 3; Held 1980, p. 66). The preoccupation of the critical theorists with the process of self-emancipation prevented the subsequent development of theories that could be applied in any well- defined political program or set of programmatic demands (Held 1980). However, the
4 This critique focuses on the positivist argument that an empiricist account of natural science is adequate, and that all cognition must have the same cognitive structure as natural science (Geuss 1981, p. 2). Recent work in the philosophy and sociology of science questions the empiricist account of science, with implications for the anti-positivist argument that the methods of the natural sciences should not be applied to the social sciences (Marshall 1998).
27 resurgence of critical theory in the powerful neo-Marxist theories of the 1970s marked a major theoretical reaction to the observed social facts of a welfare state, which was clearly in difficulty. Although the work of Offe, Habermas and O’Connor built on the fundamental philosophical concerns developed by critical theory, 5 the empirical concerns of all three theorists are clustered around a series of themes concerning the evident problems of the ‘overloaded,’ late capitalist state. They argued that the increasingly complex demands of welfare and administration of an industrial democracy had produced a situation where the interventionist state was unable effectively or efficiently to deal with the number and type of demands for economic assistance, welfare and cultural resources, and democratic involvement. Its first phase (in the development of industrial democracies) consists in the cumulative acquisition by the state of responsibilities for comprehensive and long-term provision, driven forward by competition between national political parties. They include, in particular, responsibilities for full employment, growth, exchange rate stability, an external trade balance, and comprehensive social security (Offe 1996, p. 106). These neo-Marxist interpreters, following in the critical theory tradition, diagnosed the origins of these problems as a crisis pertaining to the entire Western world in the capitalist economy. Their analysis of society rests on the Marxist tenets of commodification and crisis: the abstract exchange of commodities; the fetishisation of the products of human labour, and the propensity towards contradiction and crisis, where ‘contradiction’ is understood as the tendency, inherent in a specific mode of production, to destroy the conditions it depends on (O’Connor 1984, p. 6). Thus, O’Connor, in his study of public finance, one of the earliest and most seminal of these writings, argues that the conditions of the increasing socialisation of costs and the continued private appropriation of profits in the welfare state result in a structural gap. In other words, they cause a fiscal crisis, as the state is forced into spending more than its earning capacity (O’Connor 1973, p. 9). Hence, from this perspective, policy problems of the interventionist state came to be understood through the generic explanation that contradictory imperatives from the system of advanced capitalism bring about such economic, social and political crises
5 For instance, Habermas’ powerful concept of the masking or legitimating of arbitrary power by ideology is a development of critical theory (Pusey 1987, p. 26).
28 (Held 1980, p. 41). Pollution is regarded as an externality, or an unplanned and social aspect of capitalist expansion. The expansion of welfare (including environmental policy) is seen to be structurally induced; that is, by the social effects of politically uncontrolled economic growth and capitalist accumulation (Offe quoted in O’Connor 1984, p. 221). The functional understanding is that, on the one hand, the state is forced into the position of setting up structures, in the form of programs and organisations, to alleviate historical economic crisis situations. On the other, these structures themselves foster the tendency to crisis (O’Connor 1984, p. 67). On the one hand, although it cannot order and control production, the state is expected to accumulate, or promote the expansion of the forces of production. On the other, it has the function of legitimisation (O’Connor 1973, p. 6): The occupant of a power position in a capitalist state is powerless unless the volume of the accumulation process allows that individual to derive the material resources (through taxation) necessary to promote any political ends (Offe and Ronge 1983, p. 249). Thus if the fundamental purpose of the capitalist state is taken to be the universalising of the commodity form, there are implications for the role which the state must play in legitimation and social control. 6 More than mere compliance is required: …the interpenetration of economy, society, and parliament and state subverts traditional exchange criteria and normative structures of action hence create the need for new forms of consent and /or legitimation. In other words, the growth of political capitalism means that production and exchange processes lose their exchange-like quality. The subsequent threat of over-politicisation of the economy requires new forms of legitimation and social control. Moreover, the need for consent and/ or legitimation is reinforced when social democratic (and Labor) parties transform themselves from political instruments of the working class into national ruling parties (O’Connor 1984, p. 195). A series of systematic contradictions on the level of state activity itself prevents the state from dealing successfully with the contradictions of the capitalist mode of production and results in the state being forced to wage a continual struggle for legitimacy (Offe 1984c).
6 There are important differences among the neo-Marxists in the meaning of ‘legitimation’. The dissension relates to whether legitimation can be taken as a purely political concept or merely as compliance or support (Mayntz 1975, p. 275). Generally, the neo-Marxist interpretation concentrates on political
29 In this general explication, crisis tendencies of the advanced capitalist state result firstly, from the state having to intervene in the growing functional gaps in the market, and secondly, from increased bureaucratisation. The state has the role of outputting administrative decisions as a sovereign power, but it needs an input of mass loyalty to earn this power and to justify this role. In the first direction the tendency is for an efficiency crisis; in the other direction the tendency is for a legitimation crisis (Habermas 1989b, p. 274). Habermas, in addition, sees motivation and hence socialisation, as an issue. In explaining the effect of increased bureaucratisation on conditions and forms of democracy, he emphasises the interlinked crisis theorems of legitimation and motivation. 2.1.1.1 Rationality deficits Offe argues that the problems with the planning capability of the interventionist state need to be analysed from a structuralist perspective. The question of why the capacity of late capitalist societies for political regulation is so slight and their capacity for ‘planned social change’ so defective is either not asked or implicitly dismissed by conceiving the well-known limitations of state regulation as due to factors of a contingent nature which may in future be brought under control through improved administration and budgetary management (Offe 1984a, p. 35). Offe claims that the policymaking of the interventionist state faces inevitable and ongoing threats. They relate to problems within the market economy, but also to bureaucratic dysfunctioning. Although the bureaucracy is charged with both allocative and productive activities, structurally it is much more suited to the allocative (Offe 1975a, pp. 128-134).7 Offe concludes that such structure/ function discrepancies and contradictions doom the regulatory strategies of late capitalist systems to failure (Offe 1975a, p. 132). It is not only efficiency that such theory places in question. This limit upon planning is compounded by the lack of coordination between the state bureaucracies and by the inability of the administrative branches of the state to secure
legitimation. According to Offe, in Mayntz’s definition, even factors such as material benefits could legitimise (Offe 1975b, p. 257). 7 Allocative activity ‘creates and maintains the conditions of accumulation in a purely authoritative way’ (Offe 1975a, p. 128), whereas productive activity, an expression of weakness in the accumulation process, uses state-owned resources to generate a ‘product’, or an output, from inputs determined by state-generated decision rules (Offe 1975a, p. 134), the so-called ‘state enterprises sector’.
30 their independence from ‘the rules and outcomes of representative democratic institutions and party competition’ (Keane 1984, p. 21). The issue of an inherent dysfunctionality within the bureaucracy is compounded by the threat of bureaucratic domination, with neither private property and market relations nor democratic processes of representation necessarily preventing its occurrence (Offe 1984b, p. 265). In its perception of the influence of bureaucratisation, this variant of neo-Marxist theory takes from critical theory. As previously pointed out, critical theory takes from Weber’s formulation of the dangers for society that derive from the progressively bureaucratised, rationalised division of labour in the democratic state. Habermas and Offe both use social systems theory, in combination with the formulations on the contradictory logics of the welfare state, to explain the difficulty the state has in effectively and efficiently dealing with the demands placed upon it. Both theorists establish structural models of three major sub-systems that progressively differentiate into quasi-autonomously operating, yet interdependent sub-systems. Working from the major tenet of systems theory that a fully operating sub-system causes problems for the operations of others, Offe argues that the political sub-system cannot achieve a ‘balance’ in the functions it performs without endangering its own existence or the existence of its ‘flanking’ sub-systems, the capitalist economy and the legitimation system (Offe 1984b). Thus attempting to balance the contradictory logics of accumulation and legitimisation leads to a failure in administration or a system rationality deficit (Offe 1984b, p. 256). Offe and Habermas both contributed to the development of the concept of rationality deficits: Rationality crises and rationality deficits signal limits to the administrative production of rational decisions: they signal the failure of formal rationality (in the strictly Weberian sense) as a tool of social organisation and they mark the fraying edges of a rationalisation process that has run into limits beyond those that accrue simply from the overloading of the state’s decision-making capacities (Pusey 1987, p. 95). 2.1.1.2 Legitimacy deficits The neo-Marxists also applied their theory to the symbolic arena, and to an understanding of the social contestation and perceived crisis tendencies in democratic governance of the interventionist state. Social controversy is seen to represent boundary disputes between the interdependent but differently organised sub-systems of society.
31 Political values, for instance, are structured by the politico-administrative system into those of technical rationality, causing disputes between this system and the socio-cultural system. Habermas, however, also sets a distinction between the system and lifeworld and contributed to a further understanding of legitimacy problems. The lifeworld is a key concept Habermas uses to describe the ‘background consensus’ of ‘context-forming’ horizon to our social action and consciousness (Pusey 1987, pp. 58-59). Habermas uses his notion of lifeworld to explain the progressive development of society. The functionally differentiated systems emerge from the lifeworld through the processes of rationalisation, including universalisation of beliefs and the differentiation of the value and knowledge spheres (Seidman 1989, pp. 18-19). The lifeworld which is at first coextensive with a scarcely differentiated social system, gets cut down more and more to one subsystem among others. In the process, system mechanisms get further and further detached from the social structures through which social integration takes place (Habermas 1989a, p. 189). Habermas elaborates on the opposing processes of bureaucratisation, or ‘colonisation’, of the lifeworld and the rationalisation of the lifeworld. The effect is the development of legitimacy deficits (Figure 1). Underpinning the legitimacy crisis is an increase in state interventionism occurring as a result of the masses being entitled to political participation. With the reproductive capacities of private capital increasingly threatened by domestic and global competition, a situation has evolved that favours the manipulation of society by privately organised interests, and thus the need for a strong state. An enlarged role for the state politicises new dimensions of everyday life previously either left to tradition or to the self-regulating forces of nature. The more these socio-cultural realms are politicised, and invaded by the steering principles of the economic sub-system and of power (in the form of bureaucratic organisation), the more vulnerable the state is to legitimation problems. With increased bureaucratisation of this system, and as previously taken-for-granted meanings are thematised, ‘meaning’ becomes a resource in high demand. A motivation crisis is the result (Habermas 1989b, pp. 274-283).
32
Legitimation deficits arise because of the recognition that the social structure of society remains tied to the exploitation of one class by another. Habermas argues that the development of the democratic welfare state can be understood as the ‘institutionalising in legal form of a social power relation anchored in class structure’ (Habermas 1984, p. 361). As he sees it, the more the welfare state goes beyond pacifying class conflict and sets about bureaucratising and monetarising the lifeworld, the more it will see ‘pathological side-effects’ (Habermas 1984, p. 364). Pusey describes Habermas’ concept of the ‘legitimation crisis’ which is reached as a major manifestation of the ‘limits to state action, political authority, and ultimately to capitalism itself that are encountered at the seam between the state and the socio-cultural order’: A legitimation crisis threatens at the point where an ideologically secured and pseudolegitimate social consensus is revealed as naked power. It is also, among other things, the point at which the masking effect of the technocratic consciousness fails (Pusey 1987, pp. 96-97). Legitimation problems for the welfare state arise as a result of the ambivalent nature of the processes of bureaucratisation and juridification. 8 Habermas argues that the welfare state represents the last wave of juridification whereby freedoms are given (in terms of assurances concerning welfare-net guarantees) but are also taken away, because of the ‘restructuring interventions in the lifeworlds of those who are so entitled’ (Habermas 1984, p. 362). Habermas uses the problems of the overloaded state to illustrate the pressures that arise from juridification. His general thesis is of ‘internal colonisation’, by which he means that the ‘symbolic reproduction of the lifeworld’ is increasingly colonised by the subsystems of the state and the economy as they become more and more complex as a result of capitalist growth (Habermas 1984, p. 367). The protection of the environment, in his view, is one of the areas, like data production and nuclear reactor security, where there will be tension stemming from the opposition between the mechanisms of system integration and those of social integration as a result of pressure arising from capitalist growth. Environmentalism is one of those areas where: …the traditionalist padding of capitalist modernisation has worn through and central areas of cultural reproduction, social integration,
8 Juridification is defined generally by Habermas as the ‘tendency toward an increase in formal (or positive, written) law that can be observed in modern societies' (Habermas 1984, p. 357). By the current wave of juridification, Habermas is referring to the shifting of aspects of the socio-cultural realm into the technical realm of legal and administrative processes of the welfare state (Pusey 1987, p. 54).
34 and socialisation have been openly drawn into the vortex of economic growth and therefore of juridification (Habermas 1984, p. 367). Social integration, the social relationship between speaking and acting subjects, is a process that takes place in the lifeworld. Whatever is made explicit between subjects is drawn up from the unconscious or ‘background’ of the lifeworld. Thus Habermas sees that society is progressively developing the potential for conscious communicative action, which in turn can bring about change (Pusey 1987, p. 84). Habermas’ major normative contribution is contained in his theory of discourse ethics, and he gives guidelines for the ideal speech situation which is characterised by equality and reciprocity of information (Habermas 1984, pp. 121-129). By contrast, system integration is concerned with the specific steering performances of the self-regulated system and with the ever-increasing complexity and differentiation of society by more and more administration and planning, the integrating media being power and money. These steering activities are driven by an instrumental rationality, without heed to the values developed in the socio-cultural system. In summary, the theoretical framework developed by the neo-Marxist systems theorists in explanation of the social situation observed in connection with the ‘overloaded state’, is elucidated in terms of deficits, emphasising system rationality and legitimation. It looks to the failure of administration because of contradictory logics, and the recurring threats to legitimacy, because of the bureaucratisation of everyday life, or the colonisation of system by the lifeworld. 2.1.2.0 Public choice theory The theoretical response from the Right marked the alternative position on ‘malevolent’ aspects of government (Self 1985, p. 17). Largely based in the notions of consumer sovereignty and trust in competitive markets underpinning rational choice and public choice theory9, it has increasingly taken the theoretical stage concerning the relations of the democratic state (Figure 2).
9 Friedman explains that while the terms ‘public choice’ and ‘rational choice’ are often used synonymously, public choice has a ‘thick’ connotation, referring to the alleged propensity of political actors to follow their material self-interests, while rational choice has the ‘thinner’ connotation that actors, no matter what ends they are pursuing, behave strategically and rationally (Friedman 1996, p. 2).
35 Figure 2 Rational choice articles published in American Political Science Review (taken from Green and Shapiro 1994, p. 3).
This theoretical development found support in the influential Trilateral Commission Report of 1975 which judged Western political systems as having an ‘increasing difficulty in mastering the very complexity which is the natural result of their economic growth and political development’ (Crozier, Huntington and Watanuki 1975a, p. 8). Rather than ‘overload’, however, problems were seen as due to ‘weakness’ and to the inability of its leaders to ‘reject the demands made upon them by numerically and functionally important groups in their society’ (Crozier, Huntington and Watanuki 1975b, p. 164). It was the exaltation of democratic ideals themselves in the form of perceived rights to participation that caused both an overload of demands on the state and the fragmentation of political parties. The effect was of a ‘dysfunctional’ and ‘anomic’ democracy (Crozier, Huntington and Watanuki 1975b, p. 161). Such ‘findings’ illuminate the invasion of political science by neoclassical economic theory under the label of public choice theory (Self 1985, p. 49). The public choice theorists ‘read up’ the behavioural models of the neo-classical economists into the
36 political realm.10 Such models are posed at the level of the individual household or firm and assume perfect information, freedom of movement, individual choice, and optimising and rational decision-making (Marshall 1998). The theory of neo-classical economics posits that under these conditions, at equilibrium point, ‘the marginal ‘utilities’ of all participants in the economic game would be equalised and harmonised’ (Self 1985, p. 49). In other words, conditions of free market competition would ensure that maximum all-round satisfaction would be obtained. But public choice theory departed from the assumptions of neoclassical economics in that it also incorporated the libertarian assumption that behaviour is driven by egoism. Thus the idealistic perception of the individual of liberal democratic ideology is replaced by the ‘realistic’ view of the self regarding egoist. Public choice examines the behaviour of persons as they take on varying roles as ‘public choosers’, as actual or potential votes, as organisers or members of pressure groups, as party leaders, as aspiring or elected politicians, as bureaucrats (Buchanan 1986, p. 256). As with the liberal interpretations of the individualist state, public choice theory promotes liberty and freedom. However, it is non-idealist, in the sense that it does not depend on the motivation of the individual actors, but on the well-developed concept of the internally conceived or subjective nature of the private or public good.11 Since the political system is seen as the product of the action of rational, egotistical, self-regarding individuals, political choice is taken as a demand for public goods rather than particular policies or some abstraction or ideal such as the ‘public interest’ (Buchanan 1986, p. 62). When the neo-classical economics model of perfect competition, with a full and open supply of information, is applied to political theory: Voters can be likened to consumers; political parties become entrepreneurs who offer competing packages of services in exchange for votes; political propaganda equates with commercial advertising; government agencies are public firms dependent upon receiving or drumming up adequate support to cover their costs; and interest groups are cooperative associations of consumers or producers of public goods. Moreover, the whole political system can be viewed as a
10 For instance, Buchanan and Tulloch, two of the most influential thinkers of this school, are usually referred to as public choice economists, rather than as political scientists (Self 1985). 11 Public choice theory draws on the Pareto principle, which is that the satisfactions of individuals cannot be compared. This is a major doctrine of modern neo-classical economics, taken to support other concepts such as the position that welfare cannot be measured but only ranked on an ascending scale, and that there is no goal beyond the maximisation of individual utilities (Self 1985, p. 76).
37 gigantic market for the demand and supply of public goods, meaning all outputs supplied through a political instead of a market process (Self 1993, p. 3). Thus: In a democracy, political competition is not unlike market competition. Politicians compete among themselves for the support of the electorate and they do so by offering policies and programs which they feel can get them elected or reelected (Buchanan and Wagner 1978, pp. 87-88). In order to equate economic man to political man, several fundamental assumptions for economic and political decision-making are made about the behaviour of individuals (or of organisations): that individuals behave rationally (consistently and according to adequate information) and that these individuals are ‘utility maximisers’ (Self 1985, p. 6). That is, they can be regarded as having similar selfish and rational motivations. Hence public choice theorists do not agree with the Weberian ideal-type of bureaucratic efficiency and accountability, on the grounds that ‘rational bureaucrats’, acting as would be expected under the tenets of rational self-interest, would attempt to carry out strategies to give their agency high status and agreeable work tasks (Ham and Hill 1993, p. 55). As a result of the self-interest of bureaucrats, along with that of politicians and interest groups, public goods become oversupplied and thus the growth of government is perceived to be a result of the machinations of self regarding actors (Brennan and Lomasky 1989, p. 57). As well, particular spending programs act as self- seeking ‘individuals’: …an expansion in overall budget size is reflected in increases in particular spending programs, each one of which will quickly come to develop its own beneficiary constituency, within both the bureaucracy itself and the clientele groups being served. To justify its continued existence, the particular bureaucracy of each spending program must increase the apparent ‘needs’ for the services it supplies. Too often these activities by bureaucrats take the form of increasingly costly intrusions into the lives of ordinary citizens, and especially in their capacities as business decision-makers (Buchanan and Wagner 1977, pp. 70-71). The problem with bureaucratic decision-making is seen to work in two directions: not only does the decision-maker whose rewards are only a proportion of what he may gain under full ownership take more risks, but the situation of bureaucratic choice is less sensitive to signals of needed change (Buchanan 1969, p. 101).
38 One of the most crucial concerns of public choice theory lies with an issue very relevant to environmental policymaking: the dilemma of non-market choice. According to Buchanan, non-market choice cannot be made to duplicate market choice ‘until and unless the ownership-responsibility pattern in the former fully matches that in the latter, an achievement requiring institutional reform’ (Buchanan 1969, p. 100). The public choice critique of the economic organisation of the welfare-socialist state focusses on the point that the manager of the socialist enterprise must be ‘assumed to act solely on the basis of non-individualistic criteria’ and must therefore choose as if ‘his position in the community must be treated as if it were the same as that of any other member’. That is, the ‘subjective valuation that must inform every choice is neglected’ (Buchanan 1969, p. 97). Thus the problem with majoritarian decision-making is seen to be that collective goods are not purchased individually. Each person cannot adjust his own desired purchases; all must accept the same outcome (Buchanan 1969, p. 56). From this perspective, if value is solely located in individuals and if there is no differentiation between individuals, politics becomes the establishment of contracts to ensure that mutually beneficial arrangements can be made (Brennan and Buchanan 1985, p. 25).12 Protection for the environment becomes an aspect of the market for the demand and supply of public goods, where these can be interpreted as services (such as health) or regulatory activities (such as pollution control).13 Agency theory is a strand of public choice theory which draws from these concepts in relation to the public sector. It suggests that appropriate relations between principals and agents (in terms of efficiency and accountability) can only be maintained by either structural (increased information) or contractual strategies (Davis 1996, pp. 306-307).
In summary, the theory of public choice can be readily traced to its origin in attempts to understand the ‘post-Keynesian fiscal record’ (Buchanan and Wagner 1977,
12 Public choice theorists revert to social contract theory to overcome the perceived problem of coercion by the majority. Social contract theory explains how people can be born free and equal yet can come to be governed. It postulates that people would cede some of their liberties to the government in return for some ensured provision of public goods (Kymlicka 1990, p. 61; Self 1985, p. 71). 13 Buchanan, one of the leading protagonists of the public choice model, points out that the orthodox neo- classical model of the market process is based on predictions of humans behaving ‘as if’ they are economic units. It is not based on the assumption that they ‘should be economic units’, thus there is no concept of motivation. But, he argues, cost and choice can only be related if, most importantly, cost is borne by the decision-maker (Buchanan 1969, p. 43).
39 p. 8)14, and forms an intellectually coherent political theory that can be strongly contrasted to the neo-Marxist position. The model of homo economicus is useful to summate the issues raised by these theorists because of the associated presumption of conflict amongst interacting agents. The essential element of public choice is that:
…it cannot be presumed that discretionary power possessed by agents under a particular institutional regime will be exercised in others’ interests, unless there are constraints embedded in the institutional structure which ensure that effect (Brennan and Buchanan 1985, p. 65). 2.2.0 Analytical theme (1): the new challenges of sustainability criteria The demonstrated global and irreversible effects of continued economic development characterising the second phase of the environmental challenge saw an inter- governmental response. The principles of sustainability espoused by the internationally co-ordinated Brundltand Report were underpinned by new concepts of the inter- relationship between the environment and the economy. New principles of equity seemed to offer environmentalists, government, and industry alike the chance to contribute positively to a transformation of society at a regional and global level. In the decade since the publishing of the Brundtland Report, processes aimed at sustainable development have infiltrated the mainstream policymaking rhetoric of the developed nations. The United Nations Environment and Development Conference (UNCED) (the Earth Conference) held at Rio de Janeiro in 1992, lent international approval to sustainable development conceived as human quality of life. The stated priority was to adjust policymaking to ‘ensure humans have a healthy and productive life in harmony with nature’ (UNCED 1992, quoted in Beder 1996, p. 6). Australia, along with 179 other governments, embraced these concepts when it signed the Rio Declaration on Environment and Development and Agenda 21. The guiding principles of sustainability accepted by the Commonwealth of Australia are concerned with the institutionalisation of caution; the recognition of the global dimension of the environmental problematic; the need for community involvement; the recognition of long and short term equity considerations, and the need for cost effective and flexible policy instruments such as improved valuation, pricing and incentive mechanisms
14 Public choice theorists divided fiscal principles and practice into pre-and post-Keynesian periods, the former being characterised by frugality, the latter by profligacy. The legacy of Keynes was seen to be deficit spending, inflation and the growth of government (Buchanan and Wagner 1977, p. 22).
40 (Commonwealth of Australia 1992, p. 8). Processes established in Australia to achieve this overall goal include the Intergovernmental Agreement on the Environment (IGAE), the National Greenhouse Response Strategy and the National Forest Policy Statement (Commonwealth of Australia 1992, p. 15). The Rio Conference also set the stage for international acceptance of the fact that: ‘economy-environment interconnections, albeit under the sustainable development rubric, were, and would remain, firmly on the world’s political agenda’ (Common 1995, p. 313). The economic system is now accepted to include the environment and sustainable development thus given a broad-based appeal. However, in Australia, as elsewhere, the linking of principles of equity and economic development into a single concept of sustainability has left the discourse vulnerable to politicisation (Dryzek 1997, pp. 124-125). Major differences in the interpretation of intragenerational and intergenerational equity and the substitutability of natural capital have emerged. In order to attain intragenerational equity, sustainable development, as defined in the Brundtland Report, requires the rich countries, such as Australia, to be more ‘efficient’ in terms if their material and energy intensive activities (Common 1995, p. 3; World Commission on Environment and Development 1987, p. 51). The Business Council for Sustainable Development sees the answer to the requirements of sustainability in growth and the markets: Open prospering markets are a powerful force for creating equity of opportunity among nations and people. Yet for there to be equal opportunity, there must also be opportunity itself. Open, competitive markets create the most opportunities for the most people. It is often the nations where markets most closely approach the ideal of ‘free’ and competitive that have the least poverty and the greatest opportunity to escape from that poverty (Schmidheiny 1992, p. 9). Although interpretations by business and government appear to overlap, there are major and increasing differences in relation to biodiversity and the earth’s limits (Beder 1993, pp. 4-8). The increasingly significant area of contestation is the maintenance of biodiversity and the minimisation of the depletion of the earth’s natural resources.15 As in other developed countries, environmentalist associations in Australia argue
15 As Lester Brown of the Worldwatch Institute has recently pointed out, with 37% of the world’s fish species at risk, for instance, environmental trends are accelerating in a direction away from a solution to despeciation (Brown quoted in Frankel 1997, p. 31).
41 biodiversity is essential by for the maintenance of the ecosystem, and that an emphasis should be placed on nature’s limits rather than on the human-centred need (Common 1995, pp. 107-110; Harding 1998, pp. 27-29). An emphasis in terms of the earth’s natural limits shows resonance with the values of the Limits to Growth model (Common 1995, pp. 44-46). This perspective argues that the possibilities of substitution for environmental services are restricted and that economic growth cannot continue indefinitely. Hence there is no chance of solving the environment problem without facing up to a drastic reduction in GNP and living standards (Trainer 1994). In contrast to the sustainable development of the Brundtland Report, with this model there is an implicit premise that there be a redistribution from the rich to the poor nations. In another version of ‘sustainability’, which also links the economic and cultural systems, the need is seen to be a shift towards the ‘steady-state economics’, where development is achieved without an ‘expansion in the ecological scale of economic activity’ (Daly 1973, quoted in Young 1992, p. 6) Over the decade of the ongoing debate on sustainability since the Brundtland Report, the issues for contestation have been framed by the differing perceptions of economists and ecologists on the meaning of development and on the equitable distribution of risk. Economists have mainly been concerned to emphasise the question of what is the maximum level of consumption (and hence human well-being) that an economy can sustain forever, while ecologists have identified sustainability with ‘ecosystem resilience- the ability of the ecosystems to maintain their physical and biological functioning after disturbance’ (Wills 1997, p. 53). However, recent theoretical developments have argued economic patterns for development can shift to more appropriately encompass the ecological system, if more emphasis is placed on ‘process and structural change rather than equilibria or defined states of the environment’ (Ring 1997, p. 244).16 The differing interpretations in the sustainability debate can be understood as between differing environmental ideologies. Categories of ‘deep green’, ‘shallow green’ and ‘dry green’ can be associated with characteristic environmental philosophies,
16 Hence the ‘new economics’ advocates the use of the ‘index of sustainable economic welfare (ISEW)’. The ISEW corrects GDP with factors such as loss of natural capital, longterm and present environmental damage and income inequality (Jackson et al 1997, p. 30).
42 environmental management strategies, green movement characteristics, political structures and social movements (Harding 1998, pp. 68-74). Sustainability perspectives can be grouped as either cornucopist or ecocentric, with the various approaches differing according to the attitude to the substitutability of natural capital for human and the extent to which the environment can be decoupled from the economy. The ecocentric position is that economic activity must be reduced, not only in terms of materials and energy throughput but in terms of economic growth (in terms of GNP) itself. Degree of sustainability can measured along a spectrum of ‘very weak’ to ‘very strong’ sustainability, in relation to the degree of resource preservation or exploitation, the type of economy, management strategies and ethics (Pearce et al 1993, pp. 18-19).17 2.2.1 Implications for the overloaded state Despite the variety of interpretations, sustainability is underpinned by some distinctive values and concepts, with implications for appropriate policy responses from government (Beder 1992, p. 56; Common 1995, pp. 4-5; Pearce et al 1993, pp. 188-122; Young 1992, pp. 151-170). These include new considerations of interconnectedness, which involves the time-space distanctiation in the transfer of risk; community integration and participation, and the concept of the complex/ cause effect patterns of the holistic biosphere. Another challenge is the redistribution of wealth, including North-South and regional redistribution; reducing the environmental impact of the rich to make environmental room for the poor, and full environmental costings. Current policy may have a long lag time before it, in indeterminable ways, may adversely effect the biosphere. The interconnectedness and interdependence of sustainability principles has implications for their translation into practice at any governmental level. As well, the concept of a sustainable future is underpinned by the need for political, social and economic adaptation to the changing and unpredictable nature of the environmental problematic, where: …it is not the acute or localised environmental problem that is the major issue, but a situation of incremental environmental damage, leading to severe quantitative changes or even the system’s collapse, that finally creates the negative feedback (Ring 1997, p. 239).
17 Hinterberger at al argue that the constant natural capital criterion of strong sustainability should be replaced, on ecological and economic grounds, by ‘material flows’ or inputs. They argue this gives a better perspective on the ecological resources that should be sustained (Hinterberger et al 1997).
43 Hence sustainability calls for institutional change at global and regional levels. As Common puts it: Sustainability is a global problem. This has three dimensions. First, there is the matter of inequality between nations. Second, many of the problems originating g in economy-environment interconnections do not respect national boundaries. Third, action by one nation to protect the natural environment may have implications for its trade with other nations (Common 1995, p. 221). In the following chapters, the policy responses in NSW concerning toxic chemicals are examined in terms of their consistency with sustainability criteria. Although sustainability principles were not yet detailed in the first period of the environmental challenge, they give formal criteria with which to benchmark historically the adequacy of the environmental response. The argument in this thesis places most emphasis on the policy requirements for attaining the sustainability criteria of intergenerational equity, the appropriate valuation of environmental assets and community participation in environmental decision-making. However, given the interconnectedness of the principles of sustainability; it is accepted that ‘the principles have to be considered as part of a package; no one principle should be applied to the exclusion of consideration of other principles’ (Harding et al 1996, p. 6). Intergenerational equity raises questions for the state concerning the balancing of short and long term equity requirements and is related to the policy objectives of environmental asset protection and resource preservation. As discussed, this policy objective cannot be defined specifically, for it depends on the ethical judgment of what is a critical environmental asset (Common 1995, p. 222). Pearce et al thus distinguish between the resource preservationist position of strong sustainability; the resource conservationist and managerial position of weak sustainability, and the resource exploitative and growth-oriented position of very weak sustainability (Pearce et al 1993, pp. 18-19). Hence there are very different ways that this obligation can be viewed. There is the perspective that future generations should have the same ability to create wealth as we have, implying that knowledge and skills capital can compensate for resource depletion (Beder 1996, p. 146). Importantly for considerations of pollution and chemicals policy is the change in assimilative capacity. The alternative perspective on
44 equity between the generations is that monetary and knowledge concerns cannot replace the natural worth of the biosphere. Two operational rules can be used to ascertain strong sustainability: Each generation should maintain the resource base it inherits and leave the next generation with a per capita stock that is no less than it inherited and the total stock of conditionally-renewable resources, resource diversity and assimilative capacity should be maintained through time (Young 1992, p. 41). Hence for a strong sustainability position to be achieved, investment is still required for development, but development that does not deplete resource stocks, in terms of sinks as well as other public goods. Investment is thus decoupled from environmental degradation. Policies are aimed at increasing the efficiency (both technical and otherwise) of resource use and fostering the technological and social development that reduce material throughput per person. Examples of appropriate policies include monitoring rates of emissions and flow and a restriction on the subsidising of resources (Young 1992, pp. 53-56). The following table sets out some of the policies and social, economic and participatory conditions associated with the various stages of sustainability.
45 Table 1: A Possible Map of the Sustainability Transition (from Pearce et al 1993, p. 186)
Sustainability Policy Economy Society Discourse Ultra weak Lip service to Minor tinkering Dim awareness Corporatist policy with economic and little media discussion integration instruments coverage groups; consultation exercises Weak Formal policy Substantial Wider public Round tables; integration and restructuring of education for stakeholder deliverable microeconomic future visions groups; targets incentives Parliamentary surveillance Strong Binding policy Full economic Curriculum Community integration and valuation; integration; involvement; strong green accounts local initiatives twinning of international at business and as part of initiatives in agreements national level; community the developed green taxes growth and developing world
As indicated in Table 1, any interpretation of sustainability principles must grapple with the policy objective of the attaching of economic values to environmental goods or the costings of environmental externalities. Only then can it be assessed whether the capital stock (natural or natural-plus-human) is declining (Pearce et al 1989, p. 48; Yearley 1996, p. 133). Polluter-pays regulations or pollution taxes and charges can force the internalisation of costs (Young 1992, p. 57), as can education and awareness programs geared to changing public attitude towards public goods (Harding et al 1996b, p. 17). However, valuation of the environment raises ethical and equity concerns which challenge democratic decision-making, with difficulties including the presumption of our descendants’ preferences. Charging for ‘public goods’ is regressive unless the existing unequal distribution of wealth is taken into account. Methods of establishing value such as contingent valuation and cost-benefit analysis raise complex and little understood
46 issues unsuited to these methodologies (Department of Environment, Sport and Territories 1996).18 The requirement for local or community involvement in environmental decision- making raises questions concerning the comparative benefit of democratic governance by representation or by participation. There is an obligation that resources be valued by those who use them, a point which particularly applies in the rights of traditional owners of the land (Young 1992, p. 57). This obligation requires policy objectives to be set enabling improvements to social institutions for debate about policy options (Common 1995, p. 223) and to enhance the potential for local and individual stewardship for the environment. Hence curriculum integration and local initiatives as part of community growth are key aspects of the transition to strong sustainability (Pearce et al 1993, p. 186), enabling the interests of the collective to take precedence over those of the individual (Pearce et al 1993, pp. 18-19). Effective participation by the community requires access to information communicated in appropriate and accessible language and tools that monitor and report on the environment. Sustainability theory has thus produced a formal statement for environmental policy development, which can be further qualified along an axis of very strong to very weak sustainability. Later chapters examine the progress made along these axes by successive political programs concerning toxic chemicals in NSW. 2.3.0 Analytical theme (2): institutional targets of political reform The problems associated with the interventionist state can be traced empirically in their manifestations in key institutions which coordinate between society and the capitalist economy. The institutions selected here as analytical themes are the state, the bureaucracy and the democratic process. Political theories can be distinguished according to their reform agenda for these institutions. The following chapters use the state, the bureaucracy and the democratic process as categories to distinguish between the effects, as demonstrated in the case study, of the programmatic applications of neo- corporatist and public choice theory in relation to sustainability.
18 While some benefits may be able to be expressed in monetary terms, others such as the measurement of intrinsic worth are more difficult to quantify (Harding 1998, p. 146).
47 2.3.1 The state as coordinator A discussion of the state as an institution must be qualified by the uncertainty associated with its meaning. Debate on the meaning and importance of the state is currently resurfacing in social theory. Thus Eckersley describes the ‘state’ as the ‘sovereign and supreme legal power of the nation’ (Eckersley 1996, p. 75). For Pusey, the concept of the ‘state’ is the only one that ‘satisfactorily gathers up the military, the police, the constitution, and more importantly, the government, the bureaucracy and the legislature, and joins them all into a single entity’ (Pusey 1988, p. 23). Self takes the term to mean the political institutions of the nation and its governmental system, including the bureaucracy (Self 1985, p. 16). Both neo-Marxist and public choice theorists offer critiques of the state. As well, the state is assailed by the detraditionalisation and fragmentation of postmodernity (Giddens 1990; Lyotard 1984)19; by the development of a ‘supra-state framework of norms, rights, and institutions’, and by the forces of the global economy (Emy and James 1996, p. 9). However, this thesis takes the state to function usefully as a term for the complex of highest level coordinating institutions in a democracy by virtue of their powers of representation, decision-making capacity evident in the making of legislation and in the forming of policy, steering role for the politico-administrative system and mobilisation of fiscal resources towards generalisable interests. The functioning of the contemporary liberal democratic and interventionist state can be best understood from its structural relationship to its citizens: Citizens are collectively the sovereign creators of state authority, they are potentially threatened by state-organised force and coercion, and they are dependent on the services and provisions organised by the state (Offe 1996, p. 147). 2.3.2 The bureaucracy as agent The bureaucracy, with its responsibility for the implementation of state policy, is another key coordinating mechanism between society and the capitalist economy. The Weberian
19 Postmodernity has been characterised by authors such as Lyotard as a social condition where traditional social orders or institutions and referential categories such as the state, social class, religion, and authority of all forms, are disintegrating (Marshall 1998).
48 perspective of the bureaucratic specialisation of tasks resulting from the rationalisation of conduct characteristic of modernity has been generally taken as the fundamental feature of the capitalist state (Giddens 1972, p. 35). Differing interpretations of the structure and meaning of the bureaucracy by political programs can be compared according to this Weberian framework, which takes true power as deriving from the administrative practices of bureaucratic organisations: In a modern state the actual ruler is necessarily and unavoidably the bureaucracy, since power is exercised neither through parliamentary speeches, nor monarchical enunciations, but through the routines of administration (Weber 1968, p. 1393). This tradition envisages a bureaucratised administration, characterised by instrumental action, with a hierarchical structure. Hence, in this view, the bureaucratic capitalist state operates like a machine, bureaucracy being the ‘most rational system of harnessing energies to the fulfilment of specified tasks’ (Giddens 1972, p. 47). The critical theorists signal a break in this general acceptance of the Weberian model (Held 1980, p. 68). By focussing on individualism as an ‘ideological veil masking the new atomisation and functionalisation of concrete individuals’, critical theory aims to expose the delusion of objective rationality and harmony that develops as a result of the continued specialisation of both private and public bureaucracies (Piccone 1978, p. 10). As indicated previously, the ‘fiscal crisis’ associated with the ‘overloaded state’ is a concept developed under the influence of critical theory in response to the expansion of the public sector. Much recent theory, influenced by these developments and by liberal or libertarian political philosophy and the principles of neoclassical economics, also stands in opposition to the Weberian perspective on the coordinating role of the bureaucratic, but at the other end of the political spectrum to critical theory (Buchanan and Wagner 1977, pp. 70-71). As Friedman argues: By systematically examining whether political actors are primarily motivated by selfish ends, public choice theory has raised crucial questions about the advisability of previously accepted policies, institutions, and political systems (Friedman 1996, p. 2). And: …it impels normative scholars to ask if any given substitution of political for market processes depends unrealistically on selfish voters, legislators, or bureaucrats (Friedman 1996, p. 2).
49 As a result of this two-sided attack on the bureaucracy, the major difficulty in the contemporary analysis of bureaucratic norms has become how to: …downplay the alternative between regulation and deregulation, nationalisation and privatisation and make institutional arrangements which strengthen the capacity of individual and collective actors in civil society to coordinate with one another by means other than that of market-strategic action (Offe 1996, p. 86). 2.3.3 The democratic process as legitimator As a coordinating mechanism, the processes of representative democracy are intended to allow citizens to act with autonomy and yet together. Here lies the principal source of legitimation. If the core meaning of democracy is taken as ‘the popular control of collective decision-making by equal citizens’, then the key value in terms of which it can be promoted and justified is that of autonomy or self-determination, both of the people collectively and of citizens in so far as they share in the exercise of that control (Beetham 1993, p. 61). Given this broad function, questions can be raised concerning how the state uses democratic processes to legitimate or achieve this power and in whose interest it is used. The dominating form of democracy in the modern capitalist state remains representative democracy, where ‘the acts of government are usually performed not directly by the citizens but indirectly by representatives whom they elect on a free and equal basis’ (Lijphart 1984, p. 1). Representative democracy has been idealised as the ‘most perfect polity’, but as only suitable to a people whose society shows a degree of ‘general advancement’ (Mill 1910, p. 218). Thus democracy has been historically linked to developments in social structure associated with the industrial revolution, rather than to developments in political reason. Representative democracy aims to allow the liberal concerns for reason, law, and freedom of choice to be upheld, along with maintaining the public interest. It also looks to the aggregation of interests and the protection of citizens from despotic power. The free vote and the free market are seen as essential to its success, with state intervention perceived as a secondary strategy if laissez-faire fails to achieve the ideal of ‘the greatest happiness for the greatest numbers’ (Held 1993, pp. 19-20).
50 Arguably, the liberal concept of democracy is itself a threat to the democratic state. Underpinning liberal democratic theory is the notion that the role of the modern state must exclude the possibility that any part of its population has either the capacity or the right to act for itself. Hence the ‘modern constitutional representative democracy is democracy made safe for the modern state, at the same time making the modern state distinctly safer for the capitalist economy’ (Dunn 1992, pp. 247-250). The distinctive aspect of participatory democracy, the major alternative to representative democracy, is the participation of the whole citizen body in voting on political decisions (Budge 1993, p. 137). 20 Its origins lie in the Athenian city-state, where democracy manifested in the lack of distinction between state and society, highlighting the importance of autonomy and self-determination. With the development of larger and more complex societies the argument justifying participation has shifted. Recent years have seen participatory democracy justified by arguments concerning the freeing of civil society from state domination (Held 1993, p. 23), and for the educative effects of debate and decision-making (Beetham 1993, p. 61; Budge 1993, p. 138). Offe postulates relationships between the democratic and welfare components of the modern capitalist state (Figure 3). He argues that for reasons such as the ‘collective interest of wage earners in a welfare state’ (and other reasons as set out in Cell 1, Figure3), mainstream post-war social democratic theory has perceived that capitalist democracies will generate political forces supporting expansion of welfare provisions. These mainstream theorists have argued that these political forces (Cell 1) will generate the positive repercussions for democratic institutions for the reasons set out in Cell 3 (except if economic crisis or authoritarian interference occurs). However, Offe disagrees with these optimistic ideas. He argues that developments such as the rise of ‘new forms of non-institutional political conflict’, such as the environmental question (Cell 4), are absent from the welfare state’s agenda and have resulted in democratic processes no longer necessarily supporting the welfare state.
20 In Ancient Greece, the decision-making assembly was attended by all the citizens, and the council selected by lot. The Athenian version of direct democracy gave the citizens equality of right, and the claim of the community to an equality of obligation. However, citizens did not include women or slaves (Dunn 1979, pp. 15-17).
51 Figure 3 Conceptualisations of the interaction between political democracy (PD) and the welfare state (WS) (taken from Offe 1996, p. 154). causal link supportive antagonistic PD WS Cell 1 Cell 2 universal franchise strengthens political welfare backlash; power of wage-dependent majority of individualism; authoritarian citizens; collective interests of wage anti-welfare state populism; earners in welfare state; electoral power new particularistic of numbers outbalances economic tendencies (tax revolt, etc) power of property WS PD Cell 3 Cell 4 convergent pattern of party competition; corporatist deformation of reduction of intensity of political PD; marginalisation of conflict; political integration of entire groups, interests and electorate; ‘end of ideology’; structural cleavages not served by vanishing of political radicalism, which WS; rise of new forms of might lead to antidemocratic challenges noninstitutional political conflict
Another source of disappointment for defenders of the ‘natural’ union between the welfare state and democracy has been highlighted by Habermas’ analysis of the contradictions between state power and the lifeworld, or between ‘the welfare state’s method and its goal’ (Offe 1996, p. 159). As Offe says: What all this amounts to is the prediction that the neoconservative denunciations of the welfare state are likely to fall on fertile ground, thereby setting in motion a political mechanism of self-fulfilling predictions and interpretations (Offe 1996, p. 179). 2.4.0 Fields of application theme (3): the programmatic responses to the problems of the overloaded state Until the setbacks of the 1970s, the welfare social democratic state seemed as though it would inevitably expand, ‘matching economic development with ever-fuller implementation of social rights’ (Giddens 1998, p. 10). But social democracy encountered its own crisis (Giddens 1994, pp 51-77) and was challenged by theoretical developments from the Left, in the form of the neo-Marxist analysis of the ‘overloaded state’. As pointed out, challenges also emerged from the Right, in the form of the various free market philosophies, most systematically expressed in the tenets of public choice theory.
52 As discussed, neo-Marxist social systems analysis was based in critical theory and did not directly manifest in a programmatic response. However, the neo-Marxist understanding of ‘state overload’ was carried by leading members of the German New Left into the ‘corporatism’ debate, which came to dominate political discourse in Europe in the late 1970s and early 1980s (Newman 1981, pp. 126-127 and 136-137; Williamson 1989, p. xiii). These neo-Marxists explained the rise of the corporatist state through their concepts of the functional requirements of late capitalism, perceiving it as a ‘transient phenomenon to be resolved with the advent of the Socialist State’ (Newman 1981, p. 137). According to Keane’s introduction to one of Offe’s major works, Offe’s analysis and explanation of welfare state failure indirectly offers a normative criticism of the welfare state, promoting an awareness of the need for more adequate and desirable decision-making structures (Keane 1984, p.1). According to Newman: Both Habermas as well as Offe, by far the leading lights in this field, perceive all forms of state intervention- and in this corporatism was by no means unique-as inevitable seeds for intensified political regeneration rather than the reverse (Newman 1981, p. 231). On the alternative Right perception of the causes of ‘state overload’, the perceived need was to restore the market and to liberate individual self-interests from state-based constraints. This ‘ungovernability thesis’ (Crozier 1975) was taken up in the broad political program generically described as the New Right (Jaensch 1992, p. p. 33; Kymlicka p. 155), or sometimes neo-liberalism (Giddens 1994, p. 23). 21 As Giddens points out: From being widely seen as an eccentric, the ideas of Friedrich von Hayek, the leading advocate of free markets, and other free market critics of socialism suddenly became a force to be reckoned with (Giddens 1998, p. 5). Of these ‘free market critics’, public choice theorists offered a theory which had its origins in neoclassical economics and thus a ‘tighter logical structure’ (Self 1985, p. 50). Its influence has been most marked in the development of the
21 Marshall defines neo-liberalism as a loosely-knit body of ideas which slightly rethinks and strongly reasserts classical liberalism, the most prominent libertarians being Hayek, Friedman and Nozick (Marshall 1998). However, the boundaries between these theories are very fuzzy. For instance, this thesis takes Friedman to be a public choice theorist and, as pointed out, accepts Giddens point that neo-liberalism is more correctly called the New Right, and that it includes the libertarians (Giddens 1998).
53 strongly prescriptive theory of economic liberalism (sometimes called economic rationalism or market liberalism) (Head and Bell 1994, p. 37). During the 1980s, the libertarians, the economic liberals and the liberal or neo- conservatives combined in uneasy union under the banner of the New Right (Giddens 1998, p. 11-14; Head and Bell 1994, p. 37; Jaensch 1992, p. 35).22 These theoretical developments together contributed to the rise of the individualist state as a form of government in the UK, USA and New Zealand, Australia, and to some extent Europe, during the 1980s. Thus over this period and into the 1990s, there has been a rise in importance of the theory of the individualist state and its apparent supremacy over the neo-Marxist analysis of state failure and the associated theory of the corporatist state.
2.4.1 The rise of the corporatist state In its ‘societal’ version, corporatism can be taken to mean a type of society where groups of people acting jointly in their interest are involved in the political, social and economic decision-making process (Marshall 1998).23 Corporatism is ‘an elastic concept, and has both descriptive and theoretical connotations (Williamson 1989, p. 7). In a general way, the corporatist focus on the behaviour of organised interests and the state as the leading public actor allows it to be distinguished from the pluralist focus on ‘a competitive market system of pressure group activity’ which influences ‘government’ as the main public actor (Williamson 1989, p. 74). However, these are ideal models, based on theoretical interpretations of observed phenomena. More realistically, corporatist literature synthesises elements from the established theoretical traditions of pluralism, Marxism and elitism (Head and Bell 1994, p. 57;Williamson 1989, p.20).).24 The argument pursued in this thesis is that corporatism, elitism and pluralism can co-exist and that corporatism exists in a number of forms and as a matter of degree
22 Giddens points out that neither of the terms ‘New Right’ or ‘neo-liberal’ means the same in the USA as in Europe (Giddens 1994, p. 23). 23 This version of corporatist theory is sometimes called ‘neo-corporatism’ to distinguish it from the normative theory of the corporate state espoused earlier this century by the Roman Catholic Church and by various Fascist leaders (Marshall 1998). 24 For instance, corporatism is not the only way that intermediation between ‘interest organisations and authoritative interlocutors can be institutionalised’ (Schmitter 1983, p. 897). Pluralism also offers intermediation as a political form. However, representation or input in corporatism can be taken as largely characterised (and thus differentiated from pluralism) by the ‘differentiated domains’ of the members, and the ‘structured incorporation’ of the interlocuters (Schmitter 1983, p. 897).
54 (Williamson 1989, p. 11), p. 20). It takes the point that the methodology and assumptions of pluralist theory fail to recognise that power does not only reside within the political system and that the state is not neutral. Similarly, elite theory, emphasising the importance of business and government elites in policymaking, cannot alone provide a framework for studying the power relationships between the state and economic institutions (Head and Bell 1994, p. 64). As the polarised perspectives of Right and Left concerning the causes of state ‘overload’ became evident in the 1970s, and as some countries seemed less torn between the extremes of state and market than others, empirical and theoretical interest in corporatism expanded. On the Left, social democrats saw the need for new forms of state intervention requiring ‘new arrangements over orderly cooperation and relatively conflict-free modes of interest representation’ (Offe 1985a, p. 231). By the mid-1970s, neo-corporatism, meaning the ‘regular and close involvement of organised interests with the public bureaucracy and ministers in the formulation of policy’, was a term gaining in currency in Europe (Williamson, 1989, p. 9). Corporatist writers began to explore intermediation, both as a new way of looking at things and as a new set of things to look at (Williamson 1989, p. 7). The view emerged that a crucial characteristic of corporatism is the ‘multi-level integration of state, society and economy (in contrast to the pluralist fire trenches between them)’ and that these sorts of interactions can take place in many forums and at many levels (Scholten 1987, p. 22). Thus developed a focus on ‘meso-level’ corporatism, where rather than national level, or necessarily formalised tripartite policymaking, corporatism refers to interest group associations performing a public role (McEachern 1993, p. 174; Williamson 1989, p. 18). Claus Offe is regarded as extremely influential on the development of this concept, with his work using the public or politics status to describe the degree of corporatisation (Schmitter 1985; Offe 1985a; Williamson 1989). Another position on corporatism also developed where it is seen to apply to policy communities, where problems are corporatised, as some groups are given privileged or ‘insider’ status over other groups (McEachern 1993). Head and Bell define this version as ‘corporate pluralism’: Unlike classical pluralism, with its emphasis on an open, fluid, ad-hoc lobbying style of relationship between interest groups and the state,
55 corporate pluralism depicts a more structured and formal relationship between certain insider interest groups and the state (Head and Bell 1994, p. 29). In other words, corporatism has moved theoretically to a broader perspective, but yet retains the concept of an integrated and structured relationship between interest groups and the state. Also in contrast to pluralist accounts, corporatism emphasises the ‘internal discipline and control functions of group elites (Head and Bell 1994, p. 57).25 2.4.1.1 Reform agenda for the state One of the primary concerns of corporatist analysis, at all levels, whether at macro, meso, or policy community, is to explain the occurrence of a strong and assertive state (Head and Bell 1994, p. 57; McEachern 1993, p. 177). This is in accord with the normative aspects of corporatism, which lie in the development of stable societies (Williamson 1989, p. 16). The corporatist solution to the ‘overloaded state’ was to delegate authority for decision-making and policy implementation to ‘social groups with special interests’; in this sense, organised interests are made subservient to general interests by state control, via specialised structures or formalised procedures (Streeck and Schmitter 1985, p. 16). In other words, in the corporatist order, interest organisations get to share in the state’s authority to make and enforce decisions (Streeck and Schmitter 1985, p. 20). The social democratic programs that adopted the corporatist model used the corporatist model of power relations to contain the increase in complexity, accepted as the inevitable result of any post-industrial society (Jaensch 1992, p. 347). In this reform agenda, all issues are purged of politicisation (Newman 1981, pp. 55-56). The neo-Marxist perspective on the corporatist response to the overloaded state is that the demands of the capitalist political economy for stable and predictable social relations derive largely from its need to foster accumulation. The corporatist arrangement is seen to address the neo-Marxist conviction of contradiction at the ideological level, in the normative and moral infrastructure of late capitalist society. Capitalism is seen as depending on the doctrine of possessive individualism becoming normative, but this doctrine is undermined by the perceptible increased involvement of
25 The fact that contemporary writers such as Giddens assess ‘old-style social democracy’ generically as a corporatist form of government is a comment on the broad understanding of corporatism now prevalent in the literature (Giddens 1998, p. 11).
56 the political and administrative system in the facilitation of accumulation and exchange, as opposed to individual effort (Offe and Ronge 1983, p. 256). Thus, informed by the perspective that ‘contradictions are dynamic properties of socioeconomic systems that foster change in them’, the state attempts, using the corporatist model, to resolve the opposing pressures (Yeager 1991, p. 40). Yet, at the same time, it works on the assumption that the contradictory steering imperatives of the advanced capitalist state will inevitably limit its rationality and create instability (Keane 1984, pp. 28-30). The corporatist model addresses these functionalist perspectives by fostering economic development and stability through consensus at a political or social level. In a situation of modernity, where the increasing complexity results in increasing environmental, social, political and economic risk, ‘private government’ through the establishment of corporatist structures or bargained interest accommodation, becomes the solution for stability and the achievement of a strong state (Streeck and Schmitter 1985, pp. 14-15). The problems of the welfare state are redesigned in the corporatist solution, the shift being from ‘policy output and economic demand management to the shaping of political input and economic supply’ (Offe 1985a, p. 226). The shaping of political input is achieved by freezing out of the power equation any groups who do not agree with the overriding aim to achieve consensus around the economic growth necessary to maintain the capitalist system. Streeck and Schmitter argue that this is the natural result of the legitimate existence of a fourth institutional basis of order in advanced industrialist/ capitalist societies, which they label the ‘association’, as distinct from the ‘market, the community and the state’ (Streeck and Schmitter 1985, p. 2). In contrast to the appeals to individual self-interest of the market and the ‘neo-communitarian appeal to group altruism’, the association appeals to the ‘collective self-interest of social groups to create and maintain an acceptable social order, and it is based on the assumptions of organisations as transforming agents of individual interests’ (Streeck and Schmitter 1985, p. 16). Furthermore, although the corporatist state is constrained by the various major economic interest groups, its command over various resources (such as legal, fiscal and organisational) gives it extensive autonomy. The role of the state is an active one, designing, monitoring and keeping in check the links between the various associations and between them and society (Streeck and Schmitter 1985, p.26). This allows the state
57 to avoid directional change, and to maintain a status quo. Thus, in sum, the corporatist state aims to depoliticise then adjust consensus decisions so as to favour the capitalist system of accumulation.
2.4.1.2 Reform agenda for the bureaucracy From the neo-Marxist perspective, the contradictory role of the capitalist state has implications for its administrative arms: Because of the dual and contradictory character of the capitalist state; nearly every state agency is involved in the accumulation and legitimisation functions, and nearly every state expenditure has this twofold character (O’Connor 1973, p. 7). Thus the corporatist ‘private government’ solves problems with the legitimation of state intervention by allowing for bureaucratic agencies to provide a ‘close institutionalised interface between public authorities and specific groups in civil society’ (Streeck and Schmitter 1985, p. 22). Whilst the diverse nature of corporatist forms of state organisation make any particular interpretation difficult to capture, its emergence in a particular state is generally dependent upon the centralisation of administrative services and the training and expertise of the civil servants (Schmitter 1983, p. 905). Technical criteria of success and management are primary (Newman 1981, p. 55). The critical theorists’ concern for the wielding of arbitrary power is applied in the reform agenda, as legitimacy aims are pursued by sharing power out to the functional bureaucracies, private organisations or peak representative bodies. Although a key aspect is the sharing of power according to a hierarchical perspective on administration and co-ordination (Schmitter 1983, p. 900), in accordance with neo-Marxist understandings the collective remains valued above the individual (Pusey 1987, p. 16). The administrative arm of the state is thus required to be ‘strong’ rather than ‘weak’ (Self 1985, p. 109). Its role is to keep under surveillance the various elements of capitalist society, such as the large business or industry organisations, and other social elements which may attempt to operate outside ‘popular scrutiny or control’ (Schmitter 1983, p. 893). This perspective on the corporatist agenda for the bureaucracy is consistent with the neo-Marxist understanding that the expansion of the bureaucracy is a result of the imperatives of capitalism. That is, the growth of consumerism has caused the expansion
58 of various state services and institutions such as education, medical assistance and welfare agencies. These reforms of the welfare state provide enough material support to allow the development of new social movements. The further expansion of the welfare bureaucracies in order to contain these movements for social change in turn has resulted in an increased demand for goods (O’Connor 1973, p. 220).26 Thus the structural requirements of capitalism justify the partnership between the bureaucratic representations of state interests and the economic interests described in the corporatist model. The aim of corporatism is to pursue economic growth, but in a context which would exclude diversionary interests. 2.4.1.3 Reform agenda for the democratic process The issue of individualism versus the collective is the major theme in neo-Marxist socio- political theory (O’Connor 1984, p. 23). Hence this perspective can explain the commitment displayed in the corporatist model to economic growth based in the stability of consensus. The democratic reform process of the corporatist state aims at reducing the rationality and legitimacy deficits which occur when the collective needs are not satisfied as a result of arbitrary exercises of power. The reform agenda is based in the recognition that the state only gets its strength in terms of its ‘steering capacity’ through continual self-justification or legitimation (Pusey 1987, p. 16). From the neo-Marxist perspective, the effect of the ‘routine anarchy’ and ‘ineffectiveness’ of the management systems of the advanced capitalist state is a dependence on powerful organised social interests. Hence the emergence of the corporatist form of democratic decision-making allows cooperative regulation of conflict and crisis (Keane 1984, pp. 11-34 at p. 22). This version of democracy works to preempt conflict and secure legitimacy because ‘procedural status is attributed to groups whose resistance could become critical to the implementation of policies’ (Offe 1985a, p. 238). Offe explains why corporatist forms appear successful as a cooperative venture: …a hypothesised need for the depoliticisation of conflict that its structure apparently brings, that is, in restricting both the scope of the participants in conflict and the scope of strategies and tactics that are permitted in the pursuit of conflicting interests (Offe 1985a, p. 238).
26 This explanation for the containment of social change accords with the broad stance of critical theory. The critical theorists were preoccupied with finding reasons why revolution had not occurred in the West (Held 1980, p. 399).
59 Thus corporatism functions to relieve the tension between the demands of accumulation and the need for legitimation; in other words, the government overload, in light of the exhaustion of political alternatives, is resolved through corporatism. 27 As it was seen by neo-Marxist theorists of the 1970s, corporatism represented an inevitable stage in capitalism. With this version of corporatism, the agenda was tripartite corporate bargaining linked to a strong labour party. In tripartite bodies, juridification, in the form of the process whereby conflict based on organisation is gradually transformed into conflict based on legal entitlement to participation, can resolve problems for the capitalist state by favouring one powerful interest group over the other (Offe 1985b, p. 179).28 With the later interpretations of corporatism, operating at either the ‘meso’ or policy community level, juridification can still give insider status to selected groups and ensure a non-competitive basis to policymaking. The ‘concentration of organisational power’ also allows new or dissenting interests to be excluded (Self 1985, p. 125). From the neo-Marxist perspective, populist political behaviour such as the development of environmental protest is concerned with resolving the tension between the instrumental rationality of the economic and political/ administrative systems and the development of legitimation and motivation. It is interpreted as reflecting public concern at the distribution of risk, and is taken as an aspect of the wider question of the distribution of justice (Eckersley 1996, pp. 74-108). Hence the reform agenda for the corporatist theorist, working from the neo-Marxist interpretation of legitimation deficits, is to ‘pad’ areas of conflict between social and systems integration. It aims to do this by the systematic organisation of interests, both ‘public and private’ (Self 1985, p. 125).29
27 This understanding is underpinned by the Marxist interpretation that the guiding principles of corporatism remain those of capitalism; corporatism cannot be considered as a distinctive economic system. (Ham and Hill 1993, p. 44) 28 The union is disadvantaged compared to the industry association because ‘capital has at its command three different forms of collective action to define and defend its interests: the firm itself, informal cooperation, and the employers or business association, whereas labour has only one’. Juridification causes the dissociation of ‘representation and struggle’: the traditionally ‘dialogical’ pattern of collective action that gives the union its potency as an interest group (Offe 1985b, p. 179).
60 Bureaucracy
State Intervention
Voters Consumers STATE Market Workers Legitimisation Function Accumulation Function
Corporatist Decision Making
Direction of Reform Stasis
Figure 4 Overburdened State Model – Neo-Marxist Interpretation 2.4.2 The rise of the individualist state A traditional liberal notion is that autonomous action is the central principle of democracy (Pennock 1989, pp. 15-21). As Kymlicka interprets the broad liberal perspective: It is the right and prerogative of each person, once they have reached the maturity of their years, to interpret for themselves the meaning and value of their experiences (Kymlicka 1990, p. 200). By the late 1970s, a variant of this classical liberalism had emerged in Britain and the US that equated the principle of individual liberty with a dismantling of state authority (Giddens 1998, pp. 11-14; Jaensch 1992, p. 35). In the 1980s in Australia, a similar coalition of ideologies came to prominence as the New Right (Jaensch 1992, pp. 33 and 35). This loose body of ideas has its origins in an assortment of ideologies and political philosophies. These include the libertarian concepts of the defence of individual rights against the coercive state (Marshall 1998); the public choice analysis and economic liberalism, the prescriptive theory based on the tenets of public choice (Head and Bell
61 1994, pp. 33-37), as well as neo- or liberal-conservative notions of economic liberty and social authority (Jaensch 1992, p. 35).30 Arguably, the development from the Right reflects struggles at the boundary between the public and private spheres hidden in the conjunction ‘liberal democracy’ (Beetham 1993, pp. 56-57).31 This has reflected tendencies deep within the liberal tradition (though not shared by all liberals) of prioritising the activities and relationships of civil society, especially the market, and of regarding politics as a necessary evil to be limited to those problems the market cannot solve on its own; or else of treating politics as an arena for the exercise of leadership by the superior few, who merit protection from interference at the hands of the masses (Beetham 1993, p. 60). Hence, within this group of ideologies, there is division on the exact position of the boundary between state and civil, or between private and public (Smith 1998, p. 51). Economic liberalism, the most directly prescriptive theoretical element of the New Right, is underpinned by an agenda to implement the public choice analysis and therefore applies the assumptions of neo-classical economics. Hence the assumptions of economic liberalism include the value of the market in relation to productivity, the jeopardising of individual liberty by state-led regulations and controls, and the symmetry between the existence of a free market economy and a free market in political ideas (Head and Bell 1994, p.38). The libertarians are joined to the cause of the free market through the associations they draw between the free market, liberty, and property rights. From this perspective, government intervention in the market is morally wrong because it violates the rights of individuals; each individual must have the right to self-determination in every way. The principle of free exchange depends on the existence of property rights. Hence a typical libertarian point of view is that ‘people’s property entitlements are such as to preclude a liberal redistributive scheme’ (Kymlicka 1990, p. 98).
30 However, there is much overlap between these terms. As pointed out, Giddens argues the New Right are better described as neo-liberalism, rather than neo-conservatism, since ‘economic markets play such a large role in them’ (Giddens 1994, p. 33). 31 Beetham argues that some components of classical liberalism, such as the securing of individual rights; the separation of private and public spheres; an institutional separation of powers among executive, legislature and judiciary; the institution of representative assembly; and the right of the collective to determine the public good, can be taken as natural elements of democracy (Beetham 1993, pp. 56-57).
62 The neo-conservative or liberal-conservative element in this constellation found its ‘evidence’ in the Trilateral Commission Report of 1975. The Trilateral Commission analysis traced governability problems in democratic countries to the social disruptions of the late 1960s, and took them as reflecting the conjunction of three types of problems: contextual challenges (such as inflation which is external to democratic operations but still of influence); the active attempts at delegitimation of established institutions by ‘adversary intellectuals’ and ‘privatistic youth’, and challenges intrinsic to democratic institutions such as ‘an overload of demands on government, exceeding its capacity to respond’ (Crozier, Huntington and Watanuki 1975a, p. 8). The neo-conservative response questioned the role of the politico-administrative system and prescribed decentralised decision-making systems and innovative flexible models in order to maintain the growth levels of previous years without the associated social disruption and inflation (Crozier 1975, p. 42 and pp. 54-57). The diverse theoretical roots put the New Right as an ‘uneasy’ alliance, with one source of tension the neo-conservative element concern at the effects of deregulation on the moral code and at the dominance of economic liberalism (Giddens 1998, p. 15; Smith 1998). Their concerns include the: …loss of community, the collapse of the ‘small platoons’ (voluntary associations’ which mediated between the state and the family and the decline of moral standards as acquisitiveness came to replace the sense of duty and responsibility (Smith 1998, p. 58). 2.4.2.1 Reform agenda for the individualist state As a group, the elements of the New Right support the shift from centralised state decision-making in reaction to the growth in size of the public sector associated with Left prescriptions concerning the role of the state (Head and Bell 1994, p. 37). All aspects of neo-liberalism agree with Friedman’s argument that the welfare state is inefficient, ineffective and wasteful (Head and Bell 1994, p. 50) and accord with the individualistic market conceptions derived from the neo-classical approaches of economic theory. That is, they contend that the state should be restricted in its activities to a few key functions such as ensuring law and order, and fair trading (Bell and Head 1994, p. 2). Institutionally, the influence of this broad understanding is reflected in reform measures which are seen to be characteristic of this program (Bell 1997).
63 These include privatisation, commercialisation, contracting out, user pays, the creation of markets for welfare goods and services and the wholesale importation of private sector management practices into public administration (Bell 1997, p. 354). However, as pointed out, there are various positions on state intervention contributing to the concept of the individualist state (Head and Bell 1994, p. 37).32 They range from arguments against any state intervention, held by those favouring the ‘thick rational’ Homo economicus ideal type (Friedman 1994, p. 23), to the liberal individualist who supports some state intervention to harmonise the living conditions of society. In another interpretation of differences between the New Right elements, the more ‘liberal’ prescription is to demolish ‘protectionist enclaves’ while neo-conservatives see the origins of the ‘ungovernability’ crisis in the democratic process leading to over- politicisation and overstretching of claims, and thus emphasise privatisation (Offe 1984d p. 66),33 However, neo-conservatives are most clearly distinguished from other ideological elements of the Right by their conviction that the state has suppressed and sabotaged the ‘little platoons’ of civil society, undermining the virtues associated with the civic realm, such as self-discipline, patriotism, reverence etc (Giddens 1998, p. 12). A minimal but strong state is seen as essential to ensure law and order and to limit the ongoing ‘revolution’ associated with unfettered market forces if necessary. 34. Conservative thinking on the environment highlights the split in the ranks of the Right concerning the rationale for state devolvement. Gray, for instance, in arguing on behalf of a congruence between ecological and conservative thought, places emphasis on prudence, on the importance of all forms of life and on the need for the development of ‘small-scale localised economies and societies based on past practices which could exist in some harmony with the ecosystems they inhabit’; on this view, the concept of the autonomous chooser should be abandoned in favour of the recognition that a better life
32 Moreover, many environmentalists from the left have called for the use of markets, user pays and various other ways of ascribing value to the environment (Dryzek 1997, p. 103). 33 Offe points out the structural similarities between the neo-conservative position and the socialist critique of late-capitalist social forms (Offe 1984d, p. 65.). 34 The main exponents of neo-conservatism are from Germany and the USA. They are united by their emphasis on moral and spiritual renewal and by their distrust of state intervention (Giddens 1994, p. 33).
64 for human and other forms of life presupposes an ‘embeddedness in communities’ (Gray quoted in Smith 1998, p. 60). The libertarians also differ from other members of the New Right group, in the extent to which they oppose any form of retributive taxation and to which they support liberalisation of all legislation. A major plank in the libertarian perspective on reform is the ‘social contract’. That is, if the state does not have intrinsic rights, even to increase efficiency, then the only monitoring can be contracts established between free individuals (Kymlicka 1990, p. 96). Thus while the public choice theorists promote strongly the value of efficiency, libertarians place the strongest emphasis on ‘life, liberty and property’ (Marshall 1990). For libertarians, the concept of the ‘contract device of mutual advantage’ is of paramount importance because of their antagonism to the coercive state: For them, there are no natural duties or self-originating moral claims. There is no moral equality underneath our natural physical inequality. The modern world-view, they say, rules out the traditional idea that people and actions have any inherent moral status. What people take to be objective moral values are just the subjective preferences of individuals (Kymlicka 1990, pp. 126-127). The libertarian influence is apparent in the reform agenda proposed by the ‘free market environmentalists’, who advocate the management of the environment by means of the assigning of property-rights, with little government intervention (Anderson and Leal 19910. As the aspect of the New Right most directly influenced by public choice principles, the overall position within economic liberalism is that the state is expected to yield on demand in order to support the market; the reforming political agenda is targeted at the dismantling of the welfare state (Ham and Hill 1993, pp. 28-30; Self 1985, pp. 77- 78). The welfare state is singled out for attention ahead of the socialist state, whose collective ownership and operation of productive enterprise is seen as easier to dismantle under the ‘obvious’ efficiency advantages of private against public enterprise (Buchanan 1986, p. 179).35 The agenda is based on the simple public-choice analysis of political behaviour.
35 Buchanan defines the welfare state as a state which imposes a set of collectively determined coercive income and wealth transfers upon the operation of a private-ownership, market directed economy (Buchanan 1986, p. 179).
65 Constituents enjoy receiving the benefits from public outlays and they deplore the payment of taxes. Elected politicians attempt to satisfy constituents (Buchanan 1986, p. 192). With economic liberalism, the ultimate model of politics, taken as a process whereby individuals interact for the purpose of ‘securing individually valued benefits of cooperative effort’, is also contractarian (Buchanan 1986, p. 192), although not to such a radical degree as with the libertarians. The role of the state may include such functions as that of law-enforcement, but this does not involve democratic decision-making responsibilities. To allow a designated plurality, or majority, of all citizens to decide whether a single citizen or a group has or has not broken the law would almost directly imply that the ‘law’ does not exist independently. Such an institutional arrangement would indeed allow for tyrannisation by the designated plurality or majority. It seems evident that these arrangements could never emerge from any contractual agreement that persons enter voluntarily (Buchanan 1986, p. 242). Hence the contractarian perspective looks to limiting the role of the state or its agents by law, by rules or by the constitution, with the aim of establishing a constitutional democracy. The basic aim is to protect the assets and the rights of the individual against the intrusion of the state or of collective action. In a concrete example of contractarianism, the public choice theorist might surmise that a democracy would work according to a basic constitution which ensures each individual certain rights, but in return for them accepting some coercion in terms of rules over the distribution of public goods (Self 1985, p. 71). Thus the economic liberal reform agenda for the state has its source in economic theory. Constitutional democracy as reform is supported by the principle of the spontaneous coordination of the market, for it suggests that the economy can operate to allow individual interests to be sorted amicably without political intervention. Markets free the individual and liberty is the priority (Buchanan 1986, p. 5). Political choices are made within the context of individuals making their own choices to further their own objectives, interacting with other individuals, all acting within the constraints of a set of rules, or political institutions (Brennan and Buchanan 1985, p. 15). The market is the direction of reform, with the rules being adjusted so as to allow its optimum operating conditions.
66 2.4.2.2 Reform agenda for the bureaucracy Since economic liberals assume that the free market is the most efficient way to allocate and manage resources, their overall agenda is to obtain better economic planning at the expense of the bureaucracy and the democratic process (Head and Bell 1994, p. 38). While, broadly speaking, this stance does not quarrel with that of the social democrat- corporatist, it is achieved by attacking two problems seen as fundamental by public choice theorists in the operations of the democratic state: that of the relations between representation and expertise, and that of those between implementation and public administration (Self 1985). This is a prescription which is underpinned by both an anti- state perspective and a presumption that the more centralised and the stronger the administration system, the less responsive it is. Since any organisation is seen as an unstable arrangement of individuals, even with a stronger leadership the role of the state should be diminished. Hence, other perceived limits to the state relate to its administrative arm and to a prescribed unwillingness to regulate. Such limits again derive their meaning from value being ascribed to the individual as opposed to the collective. The logic is to redesign structurally so that there is less need to require (by regulation, say) that individuals, whose ‘interests are overruled in collective decisions’, must acquiesce so long as they possess rights of participation (Buchanan 1986, p. 253). The reform agenda for the administrative systems of the state is spelt out by Buchanan in his defense of the central and ‘untouchable’ principle of classical political economy: The principle demonstrates that the separate actions of individuals may be coordinated through a structure of interrelated markets contained within a legal-governmental system that enforces property rights and contracts. The implications of this principle for social philosophy are straightforward. To the extent that individual actions can be coordinated by decentralised organisation of emergent markets, the necessity for political coordination and/ or reconciliation is reduced. To the extent that markets work, there is no need for the state. Markets allow persons to interact, one with another, in a regime that combines freedom and order, provided only that the state supply the protective legal umbrella (Buchanan 1986, pp. 267-268).
67 The state is only involved to correct the externalities and imperfections of the unfettered market. This analysis of the relationship between the market and the organisational and administrative arrangements of the state depends on two presuppositions. The units of the human species are separated in a ‘meaningful and observable sense’, and these natural individuals are the ultimate sources of value (Buchanan 1986, p. 269). Overall, bureaucratic reform is a priority of the public choice application, and relates to the perception that on the one hand the bureaucrat takes more risks because of lack of direct ownership. On the other hand, bureaucratic decision-making is less sensitive to changes in the general environment (Buchanan 1969, p. 101). Although it is the rational egoism of the bureaucrat that public choice theorists see as of most concern for the efficient operations of the markets, of government and of the individual, economic liberalism and other programs taking from public choice analysis reflect an essential lack of trust in political and administrative institutions of liberal democracy. Indeed, structures are questioned which foster group cooperation, or any group loyalties and norms beyond the ruthless and selfish. Application of the element of public choice theory which derives its meaning from economic theory and the concept of homo economicus has the program of economic liberalism placing a strong emphasis on incentives for individuals to join voluntary insurance schemes and to be responsible for major aspects of their own welfare (Head and Bell 1994, p. 39).
68 Bureaucratic Arm of State
Privatisation Overproduction Efficiency
Political Efficiency Overproduction Political System / Market System / Politicians Overproduction Efficiency Voters as Egoists
Public Participation
Direction of Reform
Figure 5 Overburdened State Model: Public Choice Interpretation A major aspect of the neo-conservative response is the attack on the bureaucratic arm of the welfare state: The bureaucratic cohesiveness they have to sustain in order to maintain their capacity to decide and implement tends to foster irresponsibility and the breakdown of consensus, which increases in turn the difficulty of their task (Crozier 1975, p. 12). Thus the neo-conservatives also place a major emphasis on reducing the bureaucratic role, but through a perception of irresponsibility, rather than of selfishness. The further perception is that the expertise and the strength of the representative polity should be increased as compared to that of the bureaucracy (Crozier, Huntington and Watanuki 1975b, pp. 177-178). Administration of public goods is a prime target for the reforms associated with the individualist state and its component ideologies entail a similar agenda. It includes a preference for the economic over the political market, and the introduction of competition into the public goods market, the use of economic incentives for the bureaucracy, and the use of financial incentives and penalties, rather than administrative controls (Self 1985, p. 72). Economic liberals assume that all public goods provided and administered by the state should be replaced by user-pays (Head and Bell 1994, p. 38), a position in line with the perspective that all regulation interferes with individual liberty.
69 The ‘free market environmentalists’ take a more radical position in that they argue for all public goods to be assigned through property rights (Anderson and Leal 1991). They argue: Market processes with consumer and producer sovereignty have a demonstrated record for improving the quality and quantity of goods produced. Expanding these processes to include natural resources and environmental amenities offers the only possibility for improving environmental quality, raising living standards, and perhaps most important, expanding individual liberty (Anderson and Leal 1991, p. 172). 2.4.2.3 Reform agenda for the democratic process In the public choice analysis, democratic decision-making is contrasted unfavourably with the decentralised decision-making of the markets. This position is informed by theory of ‘the transaction costs of collective action‘ (Mueller 1989, p. 80). The problem with voting as a means of democratically measuring the preferences of the electorate is that it separates preference from cost. Voting as such is not a choice as it does not effect an outcome (Brennan and Lomasky 1989, pp. 43-50). The normative ideas of the theorists of the individualist state concerning the democratic process divide between neo-conservative, populist and the pragmatic requirements of the free market as they are perceived by the economic liberals. Indeed, as Giddens points out, it is in reference to the operations of democracy that the uneasiness of the New Right mix of liberal freedoms, authoritarianism and fundamentalism is most obvious (Giddens 1994, p. 40). The conservative approach incorporates some aspects of the populist agenda, and appeals to the concept of society as being composed of free individuals defending themselves against an encroaching state. It is informed by the Pareto principle, by the social contract theory of the libertarian perspective, and by the distrust of majority democracy espoused by public choice theory (Self 1985, p. 70). Another remedy for the distortion of individual preferences is to bring in the elements of populism. Thus the ‘education’ of the public is favoured, and other means by which to bring the politicians and the bureaucrats under closer control of the electorate (Self 1985, p. 71). Yet this approach also implies a dependence upon social norms and legal rules accepted as legitimate, which cannot be provided by the markets. This position is expressed by Gray:
70 …‘the deepest need’ which people have is for a network of common practices and inherited traditions that confer on them the blessing of s settled identity (Gray quoted in Giddens 1994, p. 44). There is some disparity between these views and that of the economic liberals, who works from the public choice perspective that the idealised collectivity does not exist, and that persons in politics are like persons anywhere, including in the market (Buchanan 1986, p. 6). Economic liberals take a position that the free market is one of the essential conditions of liberal democracy (Head and Bell 1994, p. 37). Missing in this prescription, however, is the concept of the ‘citizen’ (Dryzek 11997, p. 112). Underpinning the rational choice approach is the concept of competition, rather than of cooperation and compliance with majority requirements. The crucial implication of the contractarian position is that public goods may be assigned by the state but not necessarily under majority rule. As Buchanan argues: …the rule that emerges from contractual agreement reflects the results of cost-benefit calculations on the part of the contractors. Because differing sorts of potential collective actions embody differing predicted cost and benefit patterns, there may be scope for the co- existence of several collective decision-rules (Buchanan 1986, p. 243). Either qualified majorities, or single agents or agencies may also be required for ‘positive collective action’ (Buchanan 1986, p. 243). The emphasis is on political equality but from the perspective of possessing equal access to political influence over the possible range of collective choices. Since politics is evaluated normatively from the standpoint of the individual, there is an unwillingness to interpret ‘politics as the clash of competing interests’ (Buchanan 1996, p. 247). Constitutional boundaries are seen as being necessarily set around the range and scope of collective action. Effective political equality, which is the operating principle of democracy, can be meaningfully secured only if the range and scope for collective political action are constrained or limited by constitutional boundaries (Buchanan 1996, p. 248). The dilemma is the addressing of equality of opportunity if persons who are assigned powers of governance are not to be trusted because of their need to satisfy their own ‘selfish wants’. Rather than a political perspective of using the political process to resolve this problem, Buchanan, for instance, advocates the laying down of constitutional rules such as the taxation of the intergenerational transfer of assets and the provision of public education in order to correct not for ‘the distributional results of the competitive
71 market process’ but the ‘disparities in pre-market endowments and capacities’ (Buchanan 1986, p. 137). Since therefore all individuals are morally equivalent, there is a contractarian vision of collective order: Individuals will be led, by their own evaluation of alternative prospects, to establish by unanimous agreement a collectivity, or polity, charged with the performance of specific functions, including, first, the provision of the protective or minimal state, and second, the possible provision of genuinely collective consumption services (Brennan and Buchanan 1985, p. 22). The state takes the role of setting the rules of the contracts for ‘trade’ between individuals, but it does not distribute goods. This has implications for reform of the democratic process, because as rules tend to be both very general and quasi-permanent, an uncertainty is generated which ‘serves the salutary function of making agreement more rather than less likely’ (Brennan and Buchanan 1985, p. 30). In summary, the major theoretical responses to the problems of the overloaded state have seeded characteristic reform programs for the key institutions of the liberal democratic state. But sustainability criteria throw up new theoretical issues, which must now be addressed and incorporated in political programs if the environmental challenge is to be addressed. Developments in this area are reviewed in Section C. This chapter has nominated analytical categories which will be used to assess the consequences since the late 1970s of specific Australian political programs in relation to sustainability criteria. The next section of the thesis traces the events of the first and second phases of the environmental problematic as instanced by the history of the EHCA (NSW) 1985, so that later chapters can carry out this assessment.
72 SECTION B
A REGIONAL CASE-STUDY OF TOXIC CHEMICALS POLICYMAKING: THE HISTORY OF THE EHCA (NSW) 1985 Chapter 3 The First Phase of the Environmental Challenge: the EHCA (NSW) 1985 in its Political and Regulatory Context We are going to change the face of decision making in this country and the way government co-operates with important sectors of the Australian community (Bob Hawke 11 March 1983, quoted in Kelly 1992, p. 54) 3.1.0 The first phase of the environmental challenge This chapter outlines the history of the EHCA (NSW) 1985 as it traces the response to the first phase of the environmental problematic in NSW. The context to the case study is set through a description of the rise of environmentalism as a social and political movement in Australia and of the characteristic features of the Australian political landscape. The detailed history of toxic chemicals politics is drawn as events in the late 1970s and early 1980s led to a push for reform of their environmental management. The expectations for the EHCA (NSW) 1985 as landmark environmental reform in NSW are identified and conclusions drawn concerning the institutional capacity of the liberal democratic and interventionist state in relation to environmental management. The late 1960s and early 1970s saw new ecological and postmaterial values reflected in an increased public concern on environmental issues. The spilling of the 120,000 tonnes of oil from the supertanker Torrey Canyon in 1967, and many other examples of this period arising from the accelerated industrial development of the post- war decades, illustrated the growing potential for environmental crisis. A more aware public signalled their reaction to these catastrophes with demonstrations such as that of twenty million Americans on Earth Day in 1970 (Weale 1992, p. 10). The environmental policy discourse of the first phase of the environmental problematic largely focussed on pollution. The major influences came from the Limits to Growth theorists on the one hand (Meadows et al 1972), and the ‘optimistic’ regulatory science establishment arguments for the scientific assessment of limits and ceilings on the other (Nichols and Crawford 1983, p. 12). 3.1.1 The political context: the interventionist state in Australia Any rumblings of protest against the established workings of representative party politics in Australia must be set against a background of a strong interventionist and protectionist state, accepted across the political spectrum, with well-established connections to capital
73 and development. Structures established at Federation allowed the state to lead capital into development of this country through immigration, tariff protection, subsidies, tax advantages, industrial arbitration and other forms of state intervention (Pusey 1988, p. 28). While Australia shared with other Western countries the post-war boom in the economy and an expanded role for the state, it showed generally less emphasis on welfare and more on the development of resources (Brett 1994, pp. 1-8). As a consequence, in the period up till the late 1960s, environmental politics in Australia was represented in negotiations between State Departments representing sectoral interests. In effect, environmental politics was the politics of development. The first phase of the environmental problematic manifested in Australia through altered perceptions of the value of the environment and the stirrings of the new politics in the defense of local and national interests. From the late 1960s it showed up in a series of controversies challenging the long-term alliances between government and capital. In 1970, for instance, the media and various local councils publicly voiced concerns at the proposed Water Pollution Bill for NSW, suggesting that provisions licensing organisations to discharge waste into the waterways would merely serve to authorise the pollution of water. The proposed Water Pollution Bill became the Clean Waters Act of 1970. Although the change of name was supposed to indicate a stronger emphasis on pollution prevention, there were actually few revisions (Beder 1989, p. 204). The role played by the Tasmanian Hydro-Electric Commission in the dispute over the flooding of Lake Pedder in Tasmania in 1972 underlined the closeness of the links between the Australian political system, State resource development bodies and the economy. The contestation surrounding the flooding of Lake Pedder also illustrates the politicisation of environmental issues that marked this phase. The State and federal separation of powers in relation to the environment was exploited by both political parties; the Australian Conservation Foundation (ACF) was radicalised and the first Green party in the world was established by Tasmanian activists.1
1 The two major political parties in Australia have traditionally been perceived as taking up opposing sides in the State/ federal rights issue, with the ALP seen as more centralist (Jaensch 1992, p. 1992). With Lake Pedder, the Federal Liberal Party defended States rights concerning the flooding, and this locked them in on this issue for many years after (Whitlam 1985, p. 527). Although the environmentalists lost and the dam was flooded, Whitlam argues the episode was the impetus for Australia becoming the seventh party to ratify the UNESCO World Heritage convention (Whitlam 1985, p. 552).
74 The Whitlam Federal Labor government came to power in Australia in the early 1970s on a platform that marked the changing values, not only of the Australia of the time, but of much of the developed world. On his first day in office, Gough Whitlam promised a more independent stance for Australia in international affairs (Whitlam 1985, p. 19). His Government supported development but saw its duty ‘to protect not corporations but people, not to restrict foreigners but to create opportunities for Australians’ (Whitlam 1985, p. 230). Social power for women (Whitlam 1985, pp. 509- 519), and social and political power for Aboriginals (Whitlam 1985, pp. 457-484), and environmental protection (Whitlam 1985, pp. 523-551), were new areas of emphasis, reflecting the concerns of new social movements. Whitlam explains his attitude towards the undemocratic nature of development decision-making demonstrated by the Lake Pedder issue: The Tasmanian Hydro-Electric Commission is authoritarian and secretive in style. A 1929 statute gave it the sole power to generate and distribute electricity in Tasmania and the sole right to use the State’s water resources. Its skills and interests were concentrated on hydro-electric generation. It was the greatest source of jobs, contracts and consultancies in the State. It dominated the State Parliament and ruled the State Government. The submissions it prepared for Federal assistance in 1962 and 1966 were handed by the State Government to the Federal Government but were published by neither (Whitlam 1985, p. 526). The Green Bans placed by the Builders Labourers Federation (BLF) on development sites in Sydney and elsewhere in NSW between 1971 and 1975 grew out of the failure of an existing political and legal system to handle the new environmentalism and illustrated the workings of the emergent politics of the environment. The first Green Ban was led by Jack Mundey, of the BLF, and was a response to a proposal to build townhouses on the land known as Kelly’s Bush, at Hunters Hill, in Sydney. A local group, the Battlers for Kelly’s Bush, was the first to seek the help of the unions. Eventually 40 Green Bans were imposed as group after group sought their support. Challenging the political decision-makers, the trade union intervened on behalf of local interests; defending private rights against invasion by the established alliances of state and capital. However, despite having stopped $5000 million of development by withdrawing their labour, in the end the direct action tactics of the union-local interest alliance failed. The instrument of action, the BLF, was disarmed as Government action facilitated the deregulation of the union. Nor did the resolution mechanism of the Green Ban
75 movement, the Resident Action Group (RAG), achieve ‘legitimacy’ in the eyes of the wider public. Thus the local resident action groups failed in their attempt to bring effective institutional change to a highly disciplined form of government, already harnessed into the service of dominant interest groups. In essence, the episode highlights structural characteristics of the Australian state such as its fused legislative and executive functions that facilitated forceful state intervention and worked against a more open and democratic response to the challenge (Roddewig 1978, pp. 145-148). Despite this apparent failure of the citizen/ labour coalition, Whitlam’s Government was prompted to legislate with the Environment Protection (Impact of Proposals) Act of 1974, requiring environmental impact statements (EISs) before federal actions likely to affect the environment, thus marking for the first time in Australia the institutional recognition that human impact constitutes environmental risk. However, the state remained in firm control, as the public was only allowed participation by default. Ministerial discretion could be brought in to exempt an action from all EIS requirements and hence the governing political objective was assured control of policy. 2 Whitlam describes the opposition he had from the States, in line with their accepted mode of operation as development authorities: At meetings with the State Environment Ministers, Cass3 had been unable to carry my Government’s wishes for EISs to be required for all projects approved at the Loan Council. The best we could do was to provide in the Environment Protection (Impact of Proposals) Act (Whitlam 1985, p. 538). Neville Wran’s political manoeuvres in his leadership of the Labor Government in NSW between 1976 and 1986 reflect the conflicting ideologies impacting on the environmental discourses of the period. 4 As discussed, on the one hand, having inherited a depressed economy, Wran was under pressure to maintain the strong developmentalist stand of the previous Liberal-Country Party Government. On the other, his Government was identified with the concerns of the newly environmentally aware and affluent middle class, with expectations for the codifying and the institutionalising of environmental protection (Taplin 1989, p. 19). As a result of these conflicting pressures, the innovative NSW Environmental Planning and Assessment Bill
2 s. 5, Environment Protection (Impact of Proposals) Act 1974 (Whitlam 1985, pp. 93-94). 3 Moses Henry Cass was Minister for Environment and Conservation in Whitlam’s Government. 4 As Dryzek points out, environmental discourse extends to that language-based context shared by anyone dealing with environmental issues, be they environmentalist or not (Dryzek 1997, p. 9)
76 was mauled both within Cabinet and within the NSW Parliament, with some 50 amendments being made before the NSW Environmental Planning and Assessment Act (NSW EPAA) was finally passed in 1979 (Taplin 1989, p. 22). Reflecting the compromises made, not only is the NSW EPAA directly under Ministerial discretion, but the exemptions under Part V of the Act allow public agencies to give consent to their own proposals. In another reflection of the contradictory pressures, whilst the Wran Government was seen as having a ‘good record on national parks and rainforests’5, it supported overseas investment in resource and industrial development projects in the Hunter Valley, despite much local protest, and continually bypassed its own NSW EPAA (Taplin 1989, pp. 25-28). Frustration at the persistence of such evidence of the continuing alliances between state (largely in the form of State Governments) and capital, only fed the emerging environmental activism. Hence these new social movements and the growing sense of national identity came together as the major currents in Australian society in the early 1980s to create a disparate movement. Some aspects challenged the state decision- making through more direct action, with groups such as the Nomadic Action Group and the Wilderness Society using direct confrontational methods. Other groups, such as the ACF, were more active in negotiated forms of decision-making with government bodies (Bonyhady 1993, p. 53; West 1991, pp. 142- 143). Indeed, environmentalism changed its shape during this first period. The politicisation started with the earlier Lake Pedder episode took the movement away from public pressure group tactics towards setting the groundwork for the achieving of political power in its own right. The Terania Creek and Franklin Dam disputes demonstrated the increasing popularity of the movement, across wider sectors of society (West 1991, pp. 152-153). The Terania Creek blockade to prevent the logging of old- growth forest was a local initiative. Unassisted by the environment groups, local residents gained enough media involvement to force the government to push through the Rainforests Decision which set all of the forest at Terania Creek in the Nightcap
5 This observation by the Chief Judge of the Land and Environment Court, Jim McClelland, then recently retired, was accompanied by an accusation that Wran’s Government had carried out ‘many sins against our cities’ (McClelland 1988 quoted in Taplin 1989, p. 28).
77 National Park (Bonyhady 1993, p. 50).6 Two years later the Tasmanian Wilderness Society organised the Franklin Dam blockade, unprecedented in scale and in the prominence of its supporters. Previously, the environmentalists had largely conducted their protests, and the controversies had largely been settled, outside the parliamentary realm. But in this case, national media attention and the proximity of the blockade to the Federal election contributed to Labor’s victory, with the Australian Labor Party (ALP) under Bob Hawke winning six marginal seats (Bonyhady 1993, pp. 5-53). As Kelly describes the first environmental ‘test’ of the 1980s: ..Labor’s use of the external affairs power to override the Tasmanian Liberal government and prevent the Gordon-below-Franklin dam. Hawke campaigned in 1983 on this pledge, won the election, fulfilled his promise and then fought his challenge in the High Court (Kelly 1992, p. 528). Another trend was the gradual widening of the range of environmental disputes. In NSW, for instance, the environmental discourse ranged over issues from rainforest preservation to the Darling Harbour redevelopment and the proposed Monorail, with the environmentalists using tactics ranging from blockades to mass demonstrations. The controversies were settled with the assistance of interdepartmental committees and both closed and open inquiries (Taplin 1989). Thus environmentalism in Australia combined the strategies of the ‘new’, more institutionally fluid, politics with those of the old, and persisted throughout this period to challenge the nexus between state and capital and the utilitarianism of the major political parties. The spread of environmentalism across the developed world in the 1980s resulted in a new awareness of the effects of the chemicals revolution, with toxic chemicals emerging as a specific policy issue. Incidents such as the dioxin release at Seveso, the dumping of toxic wastes in Love Canal and the mercuric chloride discharge at Minamata Bay had drawn attention to the uncertain dimension of the potential toxicity of chemicals and their long-term effect on humans and the wider environment. Increasingly, institutional deficiencies were seen to be the limiting factor to their satisfactory regulation (Jasanoff 1990, p. 12). In the USA, despite the conservative tenor of the Reagan administration, the result was a remarkable expansion of the social movements concerned with the effects of toxic chemicals (Szasz 1994, p. 5).
6 Despite the attempt to deal with the issue by an inquiry, taking Justice Isaacs two years and costing $1 million to come up with a decision to recommend logging, the NSW Labor Government was forced to
78 In NSW, various public interest groups, such as the Botany Bay and Hunter Valley action groups, formed in response to local concerns with toxic chemicals and as a result of intensive industrial development. At that time in NSW there was no public body to monitor on a continuing basis dangerous activities involving chemicals. Hence the Bhopal disaster at the Union Carbide plant in India prompted calls for a more centralised control of chemicals. In one instance of the public disquiet, the Chairperson of the Botany Bay Sub-Region Advisory Committee, Hans Westerman, claimed that more dangerous activities were planned for his region, yet there were no special routes for transport of the hazardous chemicals (SMH 17 December 1984). The Pesticides Act 1978 came into question in Parliament concerning the alleged dumping of organochlorines and the weak regulation of dieldrin and aldrin (Hansard 1982a, p. 1816; Hansard 1983, p. 3523), and environmentalists blamed problems with pesticide regulation on the technical incompetence and the unwieldy structure of the NSW Departments of Agriculture, Health and Industrial Relations (SMH 21 November 1984).7
Under the Commonwealth of Australia Constitution, the Australian States have control over the allocation and development of natural resources. New arrangements for pollution control have developed parallel to the existing systems. However, policymaking has been traditionally shaped in this country by the distinctively Australian amalgam of a strong state in combination with a Federal structure (Pusey 1988, pp. 36-39). Thus environmental policy in Australia over this period also reflected the characteristic attitudes to federalism held by the opposing parties. Environmentalists attempted to exploit this separation of powers during the unsuccessful fight to save Lake Pedder in the 1970s and, as described above, used the same tactics in the later campaign to save the Gordon-below-Franklin River (Eckersley 1996, p. 87). Competition among the States, associated with the role of the State as a development authority, spilt over into the environmental policy area.8
reverse the inquiry decision (Bonyhady 1993, pp. 49). 7 The Total Environment Centre (TEC) produced studies indicating that the effects of the metabolites of heptachlor and chlordane had not been examined and sent a deputation to the responsible Minister concerning the administration of the Pesticides Act (Hansard 1982a, p. 1816). 8 NSW, for instance, boasted that the NSW EPAA, which encompassed generous consultative provisions, and was unusual in Australian legislation for its broad rights of standing, gave the most comprehensive provision for domestic forward environmental planning. NSW Labor Party representatives boasted of the ‘great changes in the environment’ since the Wran Labor Government had come to power in NSW in 1976. With ‘70% more parks now’ and legislation on lead-free petrol, it was argued in the NSW
79 The national context of the EHCA (NSW) 1985 was set by the dramatic events of the Whitlam era. The Whitlam government had embraced a policy of promoting more authority at both local government and federal levels, at the expense of the States. The establishment of the Commonwealth Department of Urban and Regional Development allowed direct cooperation between local and federal powers on environmental and planning issues, bypassing the State government (Whitlam 1985, p. 719).9 The Department of Environment and Conservation was established in 1972, becoming the Department of the Environment in 1975 (Whitlam 1985, p. 754). After an unsuccessful attempts to intervene in State policy to halt the flooding of Lake Pedder (Whitlam 1985, p. 530), and a failure to persuade the State Environment Ministers to prepare EISs for all projects, the Commonwealth Environment Protection (Impact of Proposals) Act 1974 was legislated, justifying federalist intervention in ‘matters affecting the environment’, with reference to the national interest (Whitlam 1985, p. 538). The Liberal Government of Malcolm Fraser that followed Whitlam dismantled some of the apparatus centralising power in Canberra, but, as described, the election of a federal Labor Government under Hawke in 1983 ensured the reversing of this trend. The late 1970s brought stagflation and a questioning of the principles of the welfare state to the whole Western world. Thus, for instance, the wide-ranging social and political reforms of the early 1970s in the USA were countered by the conservatism of the Reagan administration (O’Connor 1984, p. 105). In Australia, also, the neo-liberals argued against the growing dependence on the overcentralised state, its subsequent power and the perceived diminution of freedom (Kelly 1992, pp. 95-110). The most dramatic casualty was Whitlam’s strongly interventionist platform, which had included urban planning and policies to intervene in the largely pro-development programs of the Australian States. The rise in influence of the New Right justified not only privatisation and the cutting back in government spending, but opposition to controls on development and other environmental considerations (Brett 1994, pp. 1-8).
Parliament that this placed NSW at the forefront of the Australian States in environmental reform (Hansard 1985b, p. 3517). 9 Whitlam describes his government’s initiatives on behalf of local government as those which prompted most resistance and resentment from the States (Whitlam 1985, p. 719). According to Roddewig, the States perceived these initiatives as evidence of a grand design for socialist centralism (Roddewig 1978, p. 73).
80 3.1.1.1 The rise of corporatism in Australia The Labor response to the rise of the New Right, and to the poor economic performance of Australia dating from the mid-1970s (Department of Trade 1987, p. 16), was to re- establish the power of the state as an agent for social and economic reform, whilst attempting to distance itself from the overt state interventionism and nationally directed policy of Whitlam (Kelly 1992). Thus in the 1980s, the Australian Labor Party became the ‘party of economic management’ under the leadership of Bob Hawke and Paul Keating (Kelly 1992, p. 15). These leaders devised the two new tactics, which were to bring them to power at the federal level in 1983, and which were to keep them in office for four successive elections. The first tactic was co-operation between the party and the trade union movement; the second tactic was the creation of strong links with the business and the financial community. When Labor came to power at the federal level in 1983, with Bob Hawke as Prime Minister and Paul Keating as Treasurer, Australia moved closer towards corporatism, modelled in West Germany and Sweden, where organised labour and management had already been incorporated into the operations of the corporatist state. By the early 1980s, corporatism and government by consensus had emerged as a perceived means of achieving full employment and economic growth. 10 The expanding corporatist literature had, to a certain degree, hypothesised and tested the proposition that ‘corporatism acted both to temper the demands placed upon the public authorities and to improve national economic performance, thereby producing greater citizen satisfaction’ (Williamson 1989, p. 17). Stable societies were seen to be those which had ‘relatively strong institutions, often called neo-corporatist, of associational and inter- associational conflict regulation- eg Austria, Norway, Sweden, Switzerland, West Germany (Streeck and Schmitter 1985, p. 15). In Britain, the reformist socialists, such as Crossland and Marshall, had theorised new visions of socialism which offered a solution of high-level industrial democracy or corporatism (Giddens 1994, p. 72). There, the Bullock Report of 1977 had extolled worker boardroom participation in the name of order and stability, adducing the examples of West Germany and Sweden, with
10 OECD figures showed that, of a range of Northern European countries, the countries with the lowest ‘Misery Index’ (the sum of the average annual unemployment rate and the annual average increase in consumer prices) were those with the highest ‘consensus index’ (Department of Trade 1987, p. 17).
81 their ‘longstanding traditions of co-determination and exemplary patterns of productive methods and labour relations on the other’, as arguments in support (Newman 1981, pp. 83-85). In Australia, until the early 1980s, the corporatist response common in Western Europe had been confined in its influence to some sections of the Australian Labor Party (ALP) (Head and Bell 1994, p. 55). The 1980s, however, saw the ‘transformation in the organisation and objectives of Australia’s economic interest groups’, paving the way for ‘neo-corporatist policymaking arrangements’ (Matthews 1994, p. 197). So the advent of the federal Labor Government in 1983 saw increased interest in consensus as means of achieving economic growth. 11 According to Matthews: The decade also saw the emergence of a corporatist-style of policymaking under the Hawke Government. To many observers, the Hawke Labor Government’s pursuit of ‘consensus politics’, its early enthusiasm for summoning labour, business and government leaders to national summit conferences, its decision to create a number of tripartite consultative and planning bodies and, above all, its 1983 prices and incomes Accord with the ACTU were all evidence of a historic shift towards corporatist policy-making (Matthews 1994, p. 197). The objectives of the Accord included12: …cutting unemployment and increasing employment, lifting economic growth, reducing inflation, developing Australian industry, maintaining and improving living standards and improving the social wage (Department of Trade 1987, p. 16). The Australian Council of Trade Unions (ACTU)/ Trade Development Council (TDC) Mission to Europe in 1986 was designed to acquaint the Mission members with the policies followed by countries ‘where significant steps had been taken to include business and the trade union movement in macroeconomic policymaking (Department of Trade 1987, p. 1). The result was Australia Reconstructed (Department of Trade 1987), the ACTU blueprint for corporatist industry policy (Matthews 1994, p. 213). By the late 1980s in Australia this corporatist style of consensus politics in industrial policy-making
11 Financial deregulation was another aspect of the Hawke-Keating program. According to Kelly: Labor had thus adopted its own unique model, ‘an heroic fusion between the revised neo-classical economic wisdom and Labor’s Accord commitment to growth and employment’ (Kelly 1992, p. 31). 12 The Accord document, signed before the 1983 federal election, was an agreement for a partnership in office of the ALP and the trade unions in the form of the ACTU. It covered every area of domestic policy concern and prior consultation was required with the ACTU for all government decision-making (Kelly 1992, pp. 62-64).
82 was the target of the neo-liberal agenda for reform, under attack from such New Right organisations as the H.R. Nicholls Society (Matthews 1987, p. 208). The push began for the efficiency, savings and sound management reforms that were to influence the policy priorities of both of the major political parties for the next decade. According to Nick Greiner, later to be Liberal Premier of NSW: A dry wind is blowing through Australian politics. It is blowing through the Liberal Party and the National Party. It is sweeping through the Labor Party, and Australian Government will be much improved by it (Greiner 1985, cited in Thompson, Brandis and Harley, 1985, quoted in Jaensch 1992, p. 282). 3.1.2 The regulatory context: command and control The issues defining decision-making on chemicals by government and industry during the 1960s in the USA remained those of the period after World War 2; namely, ‘agriculture’ and ‘progress’ (Bosso 1987). Then, late in 1969, in the first time that a chemical was actually banned, the domestic use of DDT was effectively cancelled in the USA. 13 This marked an upsurge of public interest concerning pollution in general, which occurred across the developed world and the beginning of the institutionalisation of environmentalism (Harding 1994a, p. 243). Regulation by bureaucratic administrative agencies was the key strategy for control. The US NSW EPA, for instance, was created in 1970 to eventually become the largest bureaucracy in the country (Bosso 1987, pp. 143-144; Weale 1992, pp. 11-12). Pollution policy responses included the creation of expert councils and committees, the creation of new institutions with specific environmental responsibilities, and the development of legislation specifying more stringent controls on pollutants and toxic substances. In Australia, at the federal level, there was the Environment Protection (Impact of Proposals) Act, and in NSW, the establishment of the SPCC in 1970 and the passing of the NSW EPAA in 1979, as described. Generally these measures aimed at improving the environment through planning mechanisms incorporated in the management, development and conservation of resources. A model for integrated policy-making was set when President Nixon signed into law the National Environmental Policy Act (NEPA) of 1969:
13 Although it turned out to be a legitimating gesture for the emerging environmentalist movement, the banning of DDT represented only apparent victory. In fact, the major reason behind the banning was the huge amount of the chemical that had already been used. By 1969, already 89 species of insects were immune from its effects. (Bosso 1987, pp. 143-144).
83 With the introduction of the NEPA (1969) in the United States, environmental management was no longer seen to be limited to matters of physical resources but was extended to the effects of decisions on both the human population and the rest of the biological community. It could be said that we are in a critical stage of transformation from the period of the economic human, represented by several hundred years of industrial revolution, to the time of the ecological human (Boer 1984, p. 235). Although the NEPA represented largely symbolic action, merely requiring that federal bodies consider environmental matters before taking new actions, its innovative recommendations for the EIS made the NEPA landmark legislation, used in various public interest lawsuits mounted on behalf of the environment (Yeager 1991, pp. 116- 117). Throughout the 1970s, the chemicals revolution that had been forged in wartime was accelerated by economic imperatives and the search for new products (O’Connor 1984, p. 81-82). Despite the increased public concerns for the effects of chemicals pollution, the public was largely excluded from decision-making as the policy ‘subgovernment’ of administrative agency and expert maintained its hegemony over the ‘problem definition’ (Bosso 1987, p. 31). Although the public was also excluded from decision-making on other problems associated with the welfare state in the 1970s, such as wages and prices, unemployment and product safety, pollution most demonstrated the shift in public consciousness. To compound problems for the state, by the late 1970s, issues were already emerging as a result of these regulatory strategies. There was an acknowledged implementation deficit; cross-media transfers of pollutants were not being addressed and environmental policy was not being incorporated into broader policy considerations (Weale 1992, pp. 18-20). The NEPA had provided a model of how procedural legislation could integrate environmental concerns into the broader public policy, but it had not been followed up. Hence, by the late 1970s, and into the early 1980s, the legislators and regulators of toxic chemicals were in a crossfire situation. The emphasis on control, rather than on an integrated, preventative approach, meant increasing sums of money were being spent with little observable result (Brickman, Jasanoff and Ilgen 1985, pp. 19-21). The Australian regulatory response to the growing environmental challenge drew on the overseas experience. In the 1960s and 1970s the ‘command and control’
84 approach was used to regulate pollution, with an emphasis on the setting of fixed and acceptable levels and enforcing these levels through regulations and sanctions. Licensing systems were established which regulated discharges into air and water and required the preparation of EIS before developments (Dent 1991, pp. 215-214). Here, as in the USA, the public was distant from decision-making and the expert remained in control. In NSW, for instance, this situation was obtained through the structure and function of the SPCC and its system of expert advisory committees.14 The major statutes of NSW environmental law of the period, such as the Clean Air Act 1961 (CAA), the Clean Waters Act 1970 (CWA) and the SPCCA, effectively accepted pollution as a necessary by-product of economic development (Farrier 1988, p. 144). The implication was of an uncontested ‘licence to pollute’: All industries which produce pollution waste as a by-product of their legitimate operations are therefore ‘licensed to pollute’ up to certain maximum concentrations which are set by reference to scientific criteria, (Bates 1987, p. 211). That the environmental legislation remained so ‘symbolic’ in nature can be also attributed to a conservative legal system, which had traditionally accepted the influence of economic interests on law-making (Tomasic 1988, pp. 137-139). Thus the dilemma of the early 1980s in Australia was seen as: ‘how to maintain control in the public interest; but not so as to strike fundamentally at the source of economic activity and render it inactive’ (Barker 1984, p. 223).15 This situation saw the CAA 1961 (NSW) compared unfavourably with the CAA 1970 (USA) amendment which took the broad view that air quality was to be enhanced rather than maintained (Farrier 1988, p. 144). There was no standard-bearer of environmental policy change as had occurred in the USA with the NEPA, until the much amended NSW EPAA (NSW) was passed n 1979. Pollution law in NSW served to enshrine a policy of trading-off pollution for positive returns from the polluting activities for the consumer. By not providing encouragement for pollution prevention measures, by targeting of the regulations to specific media, and by enshrining the best practicable
14 The function of the SPCC, as regulated for by the SPCCA1970, was to develop special expertise in the area of pollution control and to be responsible for licensing and for notices to be distributed to specific companies or individuals. Various technical advisory committees advised the SPCC in carrying out its functions. 15 Barker, in describing the Clean Air Act 1961 (NSW) as not radically different from the 1876 version of the English Alkali Act, comments: ‘the Act, as noted, does not require quality targets to be set. The thrust
85 means approach with an emphasis on emissions, it leant towards reinforcing the status quo, rather than any statutory encouragement of process and change. In short, the EHCA (NSW) 1985 was set in a regulatory context where economic requirements were still seen as justification for accepting pollution as inevitable and licenses to be the means of managing all kinds of wastes. The institutional arrangements for environmental policy-making were such that, beyond the realm of public participation, and insulated from the changing tide of public opinion, ‘in-house’ decisions were made by expert committees; medical scientists and government officers, according to narrowly defined criteria. It is also apparent that the Australian health authorities of the time were permissive, rather than cautious, in protecting public health. For instance, a legislative situation unable to keep pace with the innovative capacity of the chemicals industry encouraged a reluctance to identify chemicals by statute as carcinogens. Generally, the evaluation of chemicals was based upon non-statutory processes (Cole 1984, pp. 199- 202).16 In this period, moreover, the procedural provisions of laws in Australia relating to the commencement of litigation, or the processing of complaints, were generally limited as compared to those of the USA. Restrictive rules on standing applied; that is, upon the obtaining of a review of decisions or the initiation of other proceedings such as enforcement action; in effect gaining access to a court or tribunal. Established for ‘practical reasons’, they could deny prospective litigants such as conservation groups the rights to complaint, as the normal common law criterion ‘limits legal complaint to an invasion of specified property or economic rights’ (Bates 1987, p. 273).17 Even exceptions such as the EPAA (NSW) 1979 (s. 123) and the Heritage Act 1977, which include provisions for any person to bring an action to remedy or restrain a breach of the Act, were limited compared to US statutes where more general standing
of the Act is to control emissions; indeed it contains no specific ‘pollution’ offence, and the Act is ultimately buttressed by the best practicable means approach’ (Barker 1984, p. 224). 16 Statutory declaration of carcinogens in Australia hinged on the unequivocal production of cancer in animals. Hence only one pesticide (toxaphene) in 1984 was recognised as carcinogenic and regulated accordingly in Australia. The situation can be contrasted to that in the United States, where a wide variety of substances known or suspected as being human carcinogens were statutorily recognised through such legislation as the Toxic Substances Control Act (USA) (TSCA) and the Federal Insecticide, Fungicide, and Rodenticide Act (USA) (FIFRA) (Cole 1984, pp. 199-202). 17 Unless a statute specifically sets out the rights of parties to initiate proceedings, then the common law provisions prevail (Ramsey and Rowe 1995, p. 776).
86 provisions have been included allowing citizen intervention in environmental disputes, not necessarily related to the breach of any particular Act (Boer 1984, p. 252). All in all, a conservative legal and regulatory climate on both public health and the environment, perceived as quite separate entities, prevailed in the early 1980s in Australia. However, by the early 1980s, the ideological concerns of environmentalists such as the ‘deep ecologists’ were influencing the political and legal assessment of the environment.18 From this ecocentric perspective, natural entities should be included in ethical considerations in an area of policy-making which had been long regarded as related solely to human-oriented values. Another crack in the traditional alignment of a conservative legal profession with state and economic interests was the development of a strong movement from within the legal system towards the opening up of legislative decision-making to public participation (Marsh 1984, pp. 55-72). Environmental decision-making was seen to be particularly in need of community participation: …the only way we will achieve change at the speed and magnitude necessary to come to grips with the environmental crisis is through community-based action (Carew Reid 1981, p. 246 quoted in Marsh 1984, p. 55). Whilst policies across the developed world remained dictated by expert opinion and by concerns for national economic growth, somehow to be balanced with the new demands for accountability from the public, the first phase of the environmental problematic saw the awakening of international involvement, particularly in response to chemicals regulation. The origins of the internationalisation of chemicals regulation lie in the Hasselby meeting at Stockholm in 1972, the year of Habitat, attended by sixteen industrialised countries and six international organisations. The meeting supported the notion of global responsibility for toxic chemical pollution, with the OECD as being the most appropriate officiating body. It was followed, in 1977, by the formation of the OECD Chemical Testing Programme and a Complementary Information Exchange Procedure (Marsh 1984). By the late 1970s, a global push for reform had begun to paint the corrective philosophy of the legislation of the 1960s and 1970s as fragmented, reactive and unable
18 An illustration of the law as reflecting the ethical values of our society is the argument on standing adopted by Justice Douglas in the US Supreme Court that the ‘friends of natural objects be able to represent these interests in proceedings through a guardianship role (Ramsey and Rowe 1995, p. 774). However, in a legal and regulatory sense pollution is still taken to mean ‘an impact of human activity upon
87 to address the broader considerations of controls on chemicals which are potentially hazardous or chemicals which are not necessarily designed to impact on biological systems (Nichols and Crawford 1983, p. 12). Pesticides, food additives, pharmaceuticals, and cosmetics were covered by legislation but not industrial chemicals or chemicals used in the manufacture of consumer products. Moreover, the emphasis on public health, which effectively meant simply legislating more stringent air, water and land pollution controls, had ignored such problems as the build up of chemical wastes. Characteristic features of toxic chemicals regulation were seen as justifying a shift in emphasis to the anticipation of the effects of chemicals. These included ‘notoriously entrenched’ interest groups; an ‘uncertain scientific theory base’; and shifting parameters of toxic chemical control including dose-response relationships, breakdown of products, pathway obfuscation, and food chain accumulation (Nichols and Crawford 1983, pp. 35-41). Hence the view developed that the answer to problems with toxic chemicals should be umbrella legislation, offering protection ‘from the cradle to the grave’, control of both new and existing chemicals, and international harmonisation. This shift was one of the first examples of recognition by governments of the need for international cooperation with pollution control and prevention. It emerged first with toxic chemicals because of the need for notification and assessment of the rapidly growing range of new chemicals. Countries which have adopted legislation aimed at the general control of chemicals represent the industrial world’s major chemical producers and users, including: the ten Member States of the European Communities; Canada; Japan; New Zealand; Norway; Sweden; Switzerland; and the United States. Other OECD countries are considering similar action. Notification on new chemicals is required in most. In general these laws lay down the conditions and requirements for the assessment of chemicals before entry onto the market and provide government with the authority to respond to potential or actual hazards exhibited by these substances (Nichols and Crawford 1983, p. 29). For example, both the Directive 79/831/EEC of the EC and the Toxic Substances Control Act 1976 (USA) (TSCA) espoused the control of chemicals at source. Other
the environment which exceeds a level or standard deemed by law to be permissible’ (Ramsey and Rowe 1995, p. 523).
88 legislation in this mode included the Environmental Contaminants Act (ECA) (Canada) 1975. 3.2.0 The push for reform In the late 1970s, responding to the developing public recognition that toxic chemicals represented an increasingly important and complex policy issue, the Australian Environment Council (AEC) formulated the National Action Plan on Environmentally Hazardous Chemicals, calling for the establishment of procedures necessary to assess the environmental risks of chemicals. The Plan emphasised a national register, an appropriate code of practice, and a national chemicals notification and assessment scheme to be necessary for any comprehensive control of chemicals (AEC 1984, p. 3). By the early 1980s, industry preferred to project a ‘responsible corporate image on sensitive environmental issues’, and seemed more concerned about handing over wide discretionary powers to the political policy makers, rather than about the effects of environmental legislation. 19 It appeared to be cooperating with government in order to establish a more effective system of regulation, with, for instance, industry associations cooperating with regulatory bodies to develop safety manuals and compliance programs.20 Acting upon the AEC recommendation that the code of practice for a voluntary notification scheme be developed along with industry, the voluntary Interim Notification Scheme for New Chemicals in Australia (INS) was instituted for the assessment of new chemicals and new uses of existing chemicals. In fact, very few new chemicals were notified and the INS was described a failure (House of Representatives Standing Committee on Environment and Conservation 1982).
In the first year of its operation 58 chemicals were notified and in the second year 49, but of these chemicals only 2 and 20 respectively were assessed as being new chemicals in Australia compared with an estimate, based on overseas experience, that about 50 new chemicals enter Australia each year (SPCC 1983, p. 167).
19 As discussed in an editorial in the Environment Planning and Law Journal (EPLJ), reporting on a seminar held at the University of Adelaide in May, 1984, attended by environmental lawyers and industry representatives (EPLJ 1984, pp. 209-210). 20 In 1982 the Australian Chemical Industry Council (ACIC) and the Australian Institute of Petroleum had published the Chemsafe/ Petrasafe Manual, with the aim of providing advice on the safe transportation of chemicals and petroleum products (Australian Institute of Petroleum and the ACIC 1982). In another example, the National Advisory Committee on Chemicals (NACC) and the SPCC met with the Aerosol Association to develop a compliance program for volume reduction in chlorofluorocarbons in aerosol sprays (SPCC 1983).
89 Significantly, internal communications of the SPCC complained of industry not assisting in the listing of all known chemicals according to their hazard rating (Janes 1982). The apparent cooperation of industry was patterned by its interests. The established system of regulation in NSW in the early 1980s precluded effective management of toxic chemicals, encouraging both agency capture and inter- agency competition. The fact that seventeen principal Acts in NSW alone and at least seven Commonwealth authorities were involved in the assessment and control of toxic chemicals made bureaucratic territoriality a major issue (Figure 6). Rivalry between the SPCC, the NSW Department of Agriculture, the NSW Department of Health and the NSW Department of Industrial Relations was intense. According to internal communications of the SPCC: The feeling at the SPCC was that the NSW Department of Industrial Relations shouldn’t be administering the Dangerous Goods Act (DGA) and that it should basically concern itself with working conditions and leave chemicals alone (Janes 1982, p. 9). In another inter-agency dispute, the SPCC argued that since they could regulate on both human and non-human health, pesticide registration should be moved from the NSW Department of Agriculture to the SPCC (SPCC 1984b).21 SPCC files show the SPCC lobbying for control over both new and existing chemicals, although new industrial chemicals, as a yet unregulated arena, offered it most chance of expanding its sphere of influence to the national level. The SPCC saw the answer to territorial problems as being umbrella legislation, modelled on the TSCA, which, since it would consider human and non-human health together, would site control in the SPCC.
It is frequently suggested that, as far as possible, the human and non- human environment should be considered together in legislation and administration, so there appears to be a strong argument for an Act administered by the Commission that would also cater for notification and assessment of chemicals (Janes 1982, p. 10)
21 Internal communication of the SPCC, Files on the EHCA (NSW) 1985, NSW EPA, Chatswood.
90
Work began within the SPCC on a draft form of such legislation in 1982, although both the SPCC and the NSW Government had reputedly been considering such legislation ‘over a long time’.22 However, rivalry between the bureaucratic departments continued and prompted the establishment of the Task Force into the Control of Toxic Substances (TFCTS): The SPCC found prior to and during the drafting that territoriality was a big issue, because of the large number of departments or authorities that are involved in chemicals control. There was a lot of jealousy because the NSW Department of Health did not want the SPCC to take their responsibility away from them. The purpose of the TFCTS was in fact to sort this situation out.23 Increasingly, despite the plurality of controlling bodies, there were seen to be many gaps in the existing regulatory system: Because it is a very specialised field the politicians won’t do anything about it unless they are either prodded by such a personality as ‘Crawford’, or by an accident, or by a group like the Total Environment Centre (TEC). In some areas legislative control of chemicals was well organised, but there was a large area left concerning the use, transport and disposal of industrial bulk chemicals. Pharmaceuticals, for instance, were well policed but in other areas manufacturers could do what they liked. There was increased public awareness because of fires and tanker accidents that dangerous chemicals were being transported and that chemicals were not correctly labelled.24 In June 1983, the Cabinet of the NSW Government approved new legislation, the Environmentally Hazardous Chemicals Bill (EHCB), in order to control the introduction, use and disposal of environmentally hazardous chemicals. As ‘umbrella’ legislation, it was expected to control both new and existing chemicals with provisions to be included for their notification and assessment.25 The TFCTS, a body comprising representatives from six NSW Government Departments, brought down a very critical report on the existing methods of control. It argued that the reform of the existing body of legislation in NSW should target the significant inefficiencies and deficiencies perceived in legislation, organisation and coordination. Suggested reform included the rationalisation and coordination of the large, ad-hoc and overlapping body of existing legislation, as
22 SPCC Officer B, Personal Interview, Bankstown, 28 October 1991. 23 SPCC Officer A, Personal Interview, Castle Hill, 10 January 1992. 24 SPCC Officer B, Personal Interview, Bankstown, 28 October 1991. The reference to ‘Crawford’ is to the new Director of the SPCC in 1982, Dr. Peter Crawford, who had previously been employed in the hazardous chemicals program for the OECD.
92 well as a range of measures targeted at deficiencies such as the absence of specific legislation to regulate the disposal of toxic substances on land and to prohibit the importation or manufacture or use of chemicals prior to evaluation (TFCTS 1983, pp. 5- 7 and pp. 36-37)). A key strategy to achieve this reform was the proposed new umbrella legislation of the EHCB, which would be able to override existing legislation.
The new directions prescribed by the TFCTS were underpinned by a faith in a scientific approach to risk assessment and control according to internationally set standards. It reproduced the earlier recommendations of the AEC that the harmonised approach favoured by the OECD should be adopted by Australia at the federal and State level, using internationally set standards in the assessment and control of chemicals.26 Both the ECA (Canada) 1975 and the TSCA (USA) were used as a model for the new legislation (Janes 1982). This description of the TSCA encapsulates the philosophy of such reform: The TSCA broadens the area covered by regulation. Its mechanism of control is the regulation of chemicals without regard to specific use or area of application. The Act not only seeks to control a wider range of environmental hazards, but it also seeks to control them at their source before they are dispersed into the environment, resulting in hazardous exposures and difficult if not impossible cleanup problems (Druley and Ordway 1977, p. 2). Generally, the regulatory strategy of this new mode of legislation included the provisos: (i) that chemicals should be assessed before they are marketed and used; and (ii) that governments should have the right to obtain information necessary to assessment from industry. Testing or assessment was such an integral part of this strategy that the three year Special Program of the Control of Chemicals adopted by the OECD in 1978 contained as one of its first objectives the development of internationally uniform testing standards. By 1981, the OECD countries had agreed that data generated in accordance with approved guidelines would be available to all Member States. This was achieved in 1981 by the incorporation of 52 guidelines for 'Standardised Test Guidelines and Good Laboratory Procedures' (Roberts 1982, p. 29). Thus by the period of inception of the new legislation in NSW, internationally uniform testing standards had been made available to all OECD countries.
25 SPCC Officer B, Personal Interview, Bankstown, 28 October 1991.
93 The TFCTS recognised the need for more open decision-making when it recommended that ‘a representative of environmental interests should be added to statutory and other bodies set up to advise on the control of toxic substances’ (TFCTS 1983, p. 7). In recognition of the growing demand for participation and accountability, by 1984 the Environmental Defender’s Office (EDO) had been established. By this time also, various strategies for community participation in environmental policymaking were well recognised in academic-legal discussion. 27 The SPCC supposedly followed these developments when, charged with the drawing-up of the EHCB, it conducted open forums as well as requested submissions from a wide range of interest groups, including consumer and environmentalist associations, industry and union representative groups, various government departments and local government associations (Refer Appendix A, Item 2).28 As Marsh, a lawyer researching environmental legislation in NSW at the time, saw the EHCB: ‘an important aspect of this Bill has been the opportunity for selected members of the public to discuss and make submissions on the proposed content of the EHCB’ (Marsh 1984, p. 26). In the NSW Parliament, Government Ministers boasted of it as a legislation whose measures had been arrived at by wide consultation (Hansard 1985c, p. 3750; Hansard 1985d, pp. 4094). 3.2.1 The EHCA (NSW) 1985 as landmark legislation By the early 1980s, the situation in NSW in terms of the control of toxic chemicals could be summarised as one where the body of law had been formally recognised as inefficient and as deficient; where there were obvious organisation and communication problems; and where the regulatory process was controlled by entrenched interest groups (Janes 1982; TFCTS 1983). It exemplified the major shortcomings of the regulatory approach: problem displacement across political and administrative boundaries (Weale 1992, p. 23). The approval for the development of the EHCB in 1983 saw Australia finally showing an attempt to address the deficiencies in the regulatory approach by controlling chemicals at source, as had the TSCA in 1976 in the USA. At its second reading in the NSW Parliament in 1984, it was described as one of the most significant and
26 TFCTS 1983, Appendix Z. 27 Accepted strategies of the times included community consultation; community input into statutory committees, and environmental advocacy (Boer 1984, pp. 249-252).
94 comprehensive pieces of pollution legislation yet introduced into Australia, and as ‘primarily preventative’, with a major factor taken into account in its development being ‘the limited scope of other specific purpose laws such as the Pesticides Act’ (Hansard 1984, pp. 3374-3379). Moreover, with its provisions linked to the need for the assessment of new chemicals, it was the first example in Australia of attempts at global environmental management, and illustrated the shift by the developed countries in the 1980s to a new generation of umbrella, internationally harmonised legislation. As an aspect of the process of international harmonisation; as umbrella legislation allowing pollution prevention; and as a prime example of ‘living law’, reflecting the contemporary trend for public participation in legislative decision-making, the EHCA (NSW) 1985 was promoted as landmark legislation (Marsh 1984, pp. 74-84). 3.2.2 The drafting and implementation of the EHCA (NSW) 1985: the politics of corporatism The SPCC was the agency given responsibility for the drafting of the legislation. From the outset, the determination was to involve functional groups and environmentalists in the negotiations. The unions were regarded as key participants in the consultative process. A document prepared by the SPCC in February 1984 states that: …the purpose of this document is to inform representatives of environmental groups, industry and trade unions of the main features of the legislation, as a basis for their discussions with the Commission (SPCC 1984c). Peak bodies representing labor, industry and the environmentalist movement were invited to participate in the consultation process, along with representatives of many government departments (Appendix B, Item 2). However, rather than fully open consultations, statements by SPCC personnel from that period make it clear that the process of consensus formation was steered by the state: There were two major rounds of discussion with people. The first round occurred before the memo was sent to parliamentary counsel, when the SPCC let all interested parties (industry, unions, consumer groups) know. This first consultation was in the form of a meeting attended by invitees at which a brief discussion paper was handed out and verbally commented on. Many comments addressed the same issue, whereas with other issues industry and environmental groups were diametrically opposed. Sometimes the middle ground was taken, other times one viewpoint or another …29
28 SPCC Officer B, Personal Interview , 28 October 1991 Bankstown. 29 SPCC Officer B, Personal Interview, 28 October 1991, Bankstown.
95 And: We certainly put a lot of effort into achieving the consensus, the hall at the SPCC was full of people we had invited to meetings and by this way we got consensus. The main complaint of industry was that they were not consulted enough and that the legislation was going through too quickly… 30 Labor was represented in the consultations by the Workers Health Centre and the Labor Council, the peak body for unions in NSW (Refer Appendix B, Item 2). Industry was represented by such industry associations as the Chamber of Manufactures and the Printing and Allied Trades Employers Federation. However, in 1984, in a dramatic change of events directed by the federal government, the SPCC was marginalised in relation to the notification and assessment responsibilities by a new corporatist body established at the national level, the National Occupational Health and Safety Commission (NOHSC). This initiative reflected the strong relationship between the union movement, represented by the ACTU, and the Hawke government. It demonstrated determination by the state to negotiate with the union movement in relation to the labelling and notification of new chemicals, which had emerged as one of the major issues of union concern. According to an SPCC official at the time: The SPCC attitude was that all surveillance of new chemicals should be done by the one body, then the occupational health and safety people said they have sovereignty and formed their own committee. So we were going along fine when all this occupational health and safety business erupted. This very high power committee was formed which seemed to overlap with what we were already doing. The Victorian Trades and Labour Council were represented by Dr Matthews, who was very unpleasant on the NACC and said that our two years work was a waste of time. He had a bias towards the workers, with one of his big concerns being that chemicals should be recognised under their trade names.31 Thus the expectations that the SPCC would be given the responsibility for a nation-wide assessment centre for new chemicals were dashed as a result of the establishment of corporatist structures at the federal level. 32 The incoming Federal Labor Government of Bob Hawke overrode direction at the State Government level and directed that the notification and assessment of chemicals should go to the tripartite NOHSC, under the
30 SPCC Officer A, Personal Interview, 21 January 1992, Sydney. 31 SPCC Officer B, Personal Interview, 28 October 1991, Bankstown.
96 special attention of the tripartite Chemicals Standing Committee. The NOHSC was established as an outcome of the Accord, its composition being constituted as representatives of the ACTU, the Confederation of Australian Industry, each of the State governments, and representatives of various Commonwealth and Territory departments. Under the Chemicals Standing Committee of the NOHSC, responsibility is taken for the National Industrial Chemicals Notification and Assessment Scheme (NICNAS). The situation was, as another SPCC officer put it: ‘the Commonwealth suddenly swept in under our nose, established the NOHSC, and we ended up with the dreadful NICNAS’.33 The grand vision of the SPCC for the EHCA (NSW) 1985, which included its role in the national process of chemicals notification and assessment, was swept aside in the wake of the reforming zeal of the federal corporatist government. In effect, it gave the state the opportunity to coordinate or supervise and to incorporate labour into its planning mechanisms for industry. Another structural initiative ensured that government would work with peak bodies representing industry, consumer groups and labour, in a formalised manner in the implementation of the legislation. The HCAC was established to incorporate selected representation from industry, representation from the Labor Council, consumer groups and government. It was thus an example, at a sectoral level, of the corporatist structure. Again the state was ensured control through the sheer number of government representatives (Refer Appendix B, Item 1). 3.2.2.1 Industry and insider status Suggestions that the Act evolved as a product of open consultation with a wide-range of interest groups are open to dispute. The SPCC maintained strong ownership of the construction of the legislation and evidence shows that the SPCC and the selected interest groups negotiated in a less than open manner. A draft form was available within the SPCC for at least two years before the submissions were requested in 1984. Industry associations were being consulted in at least 1983.34 Files held at the NSW EPA on the EHCA (NSW) 1985 show that interest groups other than industry were only consulted in 1984 and that many, such as the Coalition for Public Protection (CPP), (a coalition of
32 In retrospect, according to an NSW EPA Officer, these expectations were ‘unrealistic’. NSW EPA Officer C, Personal Interview, 15 May 1995, Sydney. 33 SPCC Officer B, Personal Interview, 28 October 1991, Bankstown.
97 Greenpeace, the Friends of the Earth (FOE), Australian Conservation Foundation (ACF), Australian Consumers Association, Workers Health Centre and the Total Environment Centre (TEC)), complained at not being given enough time to prepare submissions (CPP 1985a). The SPCC segregated the interest groups so they could not directly confront each other35, were secretive about meeting outcomes, and only selectively revealed information to interested parties.36 Environmentalists have complained at their treatment by the SPCC. A TEC representative in these discussions recollects: The SPCC had a committee representing environmental groups which had about half a dozen meetings. However, we wern’t taken seriously in terms of our objections. For instance, the fine was set by the SPCC at five thousand dollars for severe environmental pollution, while the TEC wanted two hundred thousand. The compromise was reached at forty thousand.37 Marsh, an activist lawyer associated with the ELA, describes her disappointed expectations of the participatory procedures at the time: The pattern of decision-making regarding the EHCB thus far reveals that while attempt was made to foster public discussion and acknowledge any new ideas, the discussion was fragmented and superficial. The ‘public’ included representatives of the unions, industry and environmental groups, but nonetheless the discussions were tokenistic because they were not open to the public and were thereby selective and exclusionary in their nature (Marsh 1984, p. 70). Bias within the SPCC towards the needs of industry is reflected in the perceptions of SPCC personnel, who saw their tertiary education in agricultural science; their scientific training and their background in the agricultural chemicals industry as allowing them ‘an understanding’ of the views of industry, whereas TEC representatives were judged as ‘whingeing’.38 Indeed, working alliances were formed between industry associations and government departments to combat possible impacts of the proposed legislation on
34 At a meeting of the National Australian Chemical Council (NACC) in 1983 the Director of the SPCC, Mr. Peter Crawford, indicated that NSW had already drafted legislation, predicated on it acting as a national unit for coordinating a national scheme (NACC 1985). 35 See: Marsh 1984, p. 70. 36 In March 1984, the SPCC conducted meetings with selected interest groups. Caroline Marsh, lawyer, and a researcher from the Macquarie University, was involved with the submissions made by the ELA. She was only allowed access to the minutes of meetings held on the 19 and 23 March. In other words, she was only permitted at meetings not attended by industry (Marsh 1984, p. 67). 37 TEC Representative A, Dr John Pollak, Telephone Interview, 8 December 1991, Sydney. 38 SPCC Officer A, Personal Interview, 21 January 1992, Sydney. This finding echoes Bosso’s conclusions on the insularity of the pesticide policy community and the persistent influence of the
98 the industry. For instance, NSW EPA records show the Agricultural and Veterinary Chemicals Association (AVCA) and the NSW Department of Agriculture and Fisheries joining forces to maintain the status quo in the control of agricultural and veterinary chemicals.39 The controversy resulted in there being at least three different versions before it was tabled in 1994 and then debated in the NSW Parliament in the autumn session of 1985. There were protests from all sides that the tabling of the legislation over the Christmas recess was tantamount to hiding it, and there was much direct lobbying of Minister Bob Carr by industry, which was said to have ‘beaten a path to the Minister’s door’.40 The SPCC also received many communications from industry associations. A typical communication from industry representatives described the Bill as ‘too draconian, too broadly worded, too unwieldy, and too expensive for industry’ (APM 1985).41 The passage of the Bill through Parliament in the second session was stormy, with the Opposition forcing several divisions, and industry making much of its dissatisfaction to the media.42 The long process of the debate concerning the legislation, the several divisions, and the intensive lobbying reflect the difficulty in getting the legislation accepted. Eventually industry was appeased by amendments passed in the second session. 43 As mentioned, the TEC nominated a fine of $200,000 as suitable for severe pollution and the SPCC $5000. The compromise reached was $40,000.44 After complaints from all sides that the HCAC ‘was overloaded with government
chemical companies in the USA, even as the era of boom in the chemicals industry waned (Bosso 1987, pp. 59 -62). 39 Evidence of this determination on the part of the AVCA and the NSW Department of Agriculture and Fisheries is the submission made by the AVCA that agricultural and veterinary chemicals should be exempt from the EHCA (NSW) 1985. The argument put was that the existing control was adequate as it was in the hands of an Advisory Committee on Pesticides to the Minister for Agriculture and Fisheries, which provided for wide representation of Government Departments as well as representatives of trade unions and environmental groups. According to SPCC Officer A, this committee had never met. See: SPCC Officer A annotation on the AVCA Submission to the SPCC concerning the EHCA (NSW) 1985 (AVCA1985) 40 SPCC Officer A, Personal Interview, 6 January 1992, Sydney. 41 Letter from APM Ltd. Industries, 16 January 1985, Files on the EHCA (NSW) 1985, NSW EPA, Chatswood (APM 1985). Other letters and submissions criticising the legislation were received from Ciba-Geigy, the ACIC, the AVCA and other industry organisations. 42 For instance, Opposition spokesperson Tim Moore made much of industry fears concerning the confidentialist provisions (Roberts 1985, p. 10; Walker 1985, p. 18). 43 Bill Freeman from the Australian Chemicals Industry Council (ACIC) stated that the ACIC had not been happy with the legislation initially, but that a lot of things had been cleared up (Walker reported in The National Times, 22 February 1985, p. 18). 44 TEC Representative B, Telephone Interview, 12 December 1991, Sydney.
99 representatives who lack technical expertise’45, the number of industry representatives was increased to include ‘a person selected by the Minister to represent major users of chemicals in NSW’ as well as ‘a member of the Chamber of Manufactures of NSW for the time being nominated by that body’ (Item 1, Appendix B).46 There was no parallel increase in environmentalist representation, nor increase in the union representation. The legislation was thus accepted by industry, but was a disappointment to the environmentalist group.47 Public interest group requests that public access to the HCAC meetings be ensured, that the HCAC functions should be spelt out more precisely and that these functions should be less technical, with the technical functions to be carried out by an advisory committee, were turned down (SPCC 1985b). Also rejected were requests that the confidentiality of the inventory procedure in s8 be removed and that more information on toxicity be available through a more readily accessed inventory (EDO 1984). The requests were based on claims that these confidentiality provisions were counter to the advice of the Commonwealth House of Representatives Standing Committee on Environment and Conservation that the ‘present assessment procedures (for chemicals) are shrouded in secrecy’ (EDO 1984). Environmentalist groups requested that systematic (chemically specific rather than common) names should be required for chemicals as essential information (Toxic and Hazardous Chemicals Committee of the TEC 1984; CPP1985a; CPP 1985b). 48 However, internal SPCC documents show that the SPCC saw confidentiality provisions essential in regard to s12 (4), to s13 (3) and to s44 (4) (SPCC 1985b). Moreover, third-party appeals were not seen as necessary with respect to licences s40, despite submissions from several environmentalist organisations (SPCC 1985b). Despite the requests from environmentalists and public interest groups, as regards ss14-17, no public involvement was allowable in the licensing of a use of a non- inventory chemical except via the HCAC (Ramsey and Rowe 1995, p. 167). The request by environmentalist organisations and local government for a chemical contingency fund or a compulsory insurance scheme to help in the clean up of contaminated sites was also
45 Both industry and environmentalist associations complained at the number of Government representatives (SPCC 1985b). 46 Ss. 6 and 7 and Schedule s 2 of the EHCA (NSW) 1985 deal with the HCAC. 47 TEC representative A, Telephone interview, 8 December 1991, Sydney; Gerard Rowe, Lecturer in the Faculty of Law, University of NSW, Personal interview, September 1992, Sydney. 48 Three submissions were made by the CPP detailing this request: 15 February, 20 February, 25 February 1985 (CPP 1985a; CPP 1985b; CPP 1985c).
100 turned down on the advice of Treasury, despite the support from the SPCC for this suggestion. 49 From the perspective of the environmentalist, the process of ‘living law’ had allowed the maintenance of secrecy provisions and generally favoured the interests of industry. The CPP had been formed in an attempt to give their faction more leverage: In spite of some consultative meetings with officers of the SPCC the input of separate organisations appears to have been illusory. Crucial points have been omitted (CPP 1985a). Despite the formation of the CPP, internal documents of the SPCC show that few requests from this faction were agreed to (SPCC 1985). Nor was the state prepared to commit financial resources itself, or to allow industry to commit resources, to prevent pollution by means of the chemicals contingency fund. It is not surprising that the environmentalist faction doubted the commitment of the SPCC: Deep concern is felt about the implications of the use of the phrase ‘the Commission may’ instead of the ‘Commission must’ through out the Bill. It renders the environment and hence the people vulnerable to the whims of those administering the Act (CPP 1985c). And: Therefore if this Bill is enacted in its present form it will make it incumbent upon groups like this Coalition to continue to be watchdogs for the environmental and therefore the public interest. One would have thought that this should not be necessary under a Labor Government (CPP 1985c). However, the SPCC saw themselves as the appropriate ‘gatekeepers’ of public access to information. SPCC personnel at the time were under the impression that s 13 (3) allowed the SPCC to withhold information on environmentally hazardous chemicals if it (the SPCC) thought there were ‘genuine’ commercial secrets at risk (Refer Appendix A, Item 3).50 SPCC documents indicate these SPCC personnel were intent on concealing chemical identity in other situations such as under s21 (2) which refers to the description of chemicals, chemical wastes or prescribed activities in regards to the notice of making a chemical control order.51
49 SPCC Officer A, Personal Interview, 6 January 1992, Sydney. NSW EPA Officer C, Personal Interview, 19 September 1993, Sydney. 50 Note on copy of the EHCA (NSW) 1985 held in the personal file on the EHCA (NSW) 1985 held by SPCC officer A. File handed over by SPCC Officer A to S.H. Benn in January 1991. 51 Note on copy of the EHCA (NSW) 1985 held in the personal file on the EHCA (NSW) 1985 by SPCC officer A. The note stated: ‘are we still going to conceal identity in some cases contrary to overseas practice’?,
101 Before the Act was finally passed, the SPCC was pressed to make concessions to the extension of public participation. Broad standing provisions, similar to the NSW EPAA (NSW) s123 were included in s57.52 Thus, for instance, in s57 (1): Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach (EHCA (NSW) 1985 (NSW) s 57 (1)). Then, in 1985, the EHCA (NSW) 1985 was proclaimed, with the exceptions of ss 9 and 12, which awaited the passing of legislation installing the NICNAS. Hence although broad standing provisions were finally included, the operations of what was apparently ‘living law’ did not ensure democratic decision-making in the formulation of the legislation. The state agency intervened in the policymaking process by the establishment of corporatist processes, which allowed fully participatory consultative processes to be shortcircuited. In other words, in its position as a ‘gatekeeper’, the SPCC selectively consulted to establish the terms of the legislation. Thus the allegiance between the SPCC and the concerns of industry permitted commercial interests to be favoured through the management of the consultative process. Furthermore, the shortfall in the rights to public participation and accountability in the terms of the legislation was another democratic deficit. The HCAC was established as an on-going measure to ensure corporatist gatekeeping, its composition being dominated by state and economic interests. Analysis of the values and commitments embedded in the legislation also reveals a corporatist agenda to secure economic growth. The doctrine of international harmonisation that fed the inception of the legislation and which underpins the concept of the notification and assessment of chemicals, was a key aspect of the aspirations for the EHCA (NSW) 1985. It was not only the danger of global transfers of chemicals that prompted OECD officials to recommend legislative change. Trade and other economic concerns were major considerations. Harmonisation was sold as a policy rationale at the time because it was seen as being able to alleviate various non-tariff barriers such as costs due to inspection fees; adaption of products; delays for customs clearance, and
52 Industry strenuously argued that the SPCC should be the ‘proper plaintiff for such proceedings’ and that the ‘Attorney General is the proper guardian of what are essentially public rights’ (Chamber of Manufactures 1985).
102 confidentiality issues that prevented international competition and market flow in the chemicals industries (Nichols and Crawford 1983, pp. 35-51). It is relevant that this doctrine emerged after a period where the agrochemical industry had seen a significant decline in the number of new chemicals on the market since the mid-seventies. A highly competitive and mature industry, its lower profits had resulted in less money for research and development (Tait, Brown and Carr 1991, p. 48). Harmonisation assisted in countering this situation by alleviating the non-tariff barriers characteristic of the chemicals sector. Moreover, to the concern of all sectors of international capitalism, the oil crisis of the 1970s had placed the whole concept of the development model under a cloud (Sachs 1993, pp. 3-21). Hence this move towards international harmonisation suited the terms of international corporate players and the search for new markets. The shifts towards umbrella legislation in the OECD countries underscored an international push to emphasise chemicals control as an aspect of worker health and safety (Marsh 1984). Thus the principles of international harmonisation, umbrella legislation and worker health and safety were installed as the key doctrines of toxic chemicals control through the influence of global economic concerns and the politics of corporatism and consensus, as well as the need to control toxic substances across international boundaries. 3.3.0 Results of the first phase: the EHCA (NSW) 1985 as a record of corporatist failure The original concept of umbrella legislation was that its provisions for ‘control of chemicals from cradle to the grave’ would facilitate the coordination of existing legislation and alleviate the communication problems between regulatory bodies. Yet the situation seven years after the passing of the EHCA (NSW) 1985 was described by the Public Interest Advocacy Centre (PIAC) in terms very similar to that used by the TFCTS in 1983.: In NSW 72 pieces of legislation and 19 Departments impinge on the regulation of toxic and hazardous chemicals. The system is piecemeal, riddled with anomalies and incomprehensibly complex. The legal maze discourages public participation and makes effective regulatory enforcement extremely difficult (PIAC 1991, (ix)). Not only has bureaucratic territoriality ensured that the system of toxic chemicals control in NSW remains unrationalised and uncoordinated, but the multiplicity of government
103 departments has continued to allow ample opportunity for corporate capture into the 1990s (PIAC 1991, (x)).53 In a prime example, the regulation of pesticides in NSW, as in the other States, has persisted as one of ‘bureaucratic stalemate’ and the responsibility for pesticide registration has remained a major area of contention. Lack of Commonwealth accountability is exacerbated by fragmentation of power between State and federal governments. State departments of agriculture jealously guard their administration of dozens of statutes and resist efforts at substantial reform, leaving the Commonwealth with powers to assess, but not control the use of, pesticides (Short 1994, p. 237). NSW is left with a regulatory structure for toxic chemicals control which still entailed overlapping (and in some cases conflicting) requirements on packaging and labelling of toxic substances; a division of responsibility between two or more authorities for the administration of legislation; and a separation of expertise from responsibility in the administration and enforcement of toxic chemicals legislation (PIAC 1991, p. 38). Thus, despite the original pronouncements of its proponents, a decade after its inception sees the EHCA (NSW) 1985 criticised by environmental regulators in NSW as an unwieldy piece of legislation, whose internal contradictions and clumsiness result in it being little used.54 The one exception over its life span appears to have been the issuing of notices concerning contaminated sites. By 1996 the application of the EHCA (NSW) 1985 had resulted in 103 notices for contaminated sites, but only six Chemical Control Orders. According to its administrators, the lack of relevance of the EHCA (NSW) 1985 to the realities of toxic chemicals management is reflected in the lack of enthusiasm amongst the members of the HCAC. As one state agency official has pointed out: ‘the HCAC has been a problem. It needs to be more active. It only has four meetings a year and one member of the Committee has never attended a meeting’.55 Hence a major piece of legislation characterising the hopes of the first period of environmental reform in NSW has been a failure.
53 As has been pointed out, files held at the NSW EPA concerning the EHCA (NSW) 1985 reveal many instances where bureaucratic territoriality was an issue between the SPCC, the NSW Department of Agriculture, the NSW Department of Industrial Relations and the NSW Department of Health. The PIAC Report is strongly critical of the NSW regulatory system for allowing the agency to grow too close to industry and thus to allow the capture of industry by the agency (PIAC 1991, (x)). 54 NSW EPA Officer D, Telephone Interview, 8 March 1995, Sydney. 55.NSW EPA Officer F, Telephone Interview,11 September 1996, sydney.
104 The two decades of inactivity have to be questioned in terms of a failure in legislative reform, particularly in light of the pace at which the chemical industry innovates and the very many new chemicals placed on the market since 1985. While s8 of the EHCA (NSW) 1985 establishes an inventory of chemicals, offences for the use of chemicals not included on the inventory are contained within s9 and provision to apply for an assessment so as to carry out an activity in relation to a chemical not on the inventory is within s12. The long transition period before the proclamation of sections 9 and 12 of the EHCA (NSW) 1985 gave industry the opportunity to notify any chemical they saw use for in the future onto the existing chemicals inventory and, as a result, these chemicals escape assessment. Once on the inventory as an existing chemical, entailing only chemical identification details, a chemical is not subject to the assessment and publishing requirements of the Industrial Chemicals (Notification and Assessment) Act 1989. By the time this legislation was passed, 35,000 chemicals had been placed on the existing chemicals list (PIAC 1991, p. 18). This situation can be sheeted home to the bureaucratic territoriality and inter-departmental disputes. Belatedly, after the ALP came to power in NSW in 1995 under Bob Carr, the NSW Environmental Protection Agency (NSW EPA) was gazetted to take over pesticide registration from the NSW Department of Agriculture, in order to remove ‘the perceived poacher/ gamekeeper conflict whereby NSW Agriculture both regulates pesticide use and advises and supports the primary users’ (NSW EPA 1995a, p. 3). However, in another humbling demonstration of failure, despite the brave proclamations and the controversy surrounding its inception, the EHCA (NSW) 1985 was not regarded as a crucially important enough piece of environmental legislation to be worth salvaging by the ‘environmental broom’ of the Carr Government, which came to power with an environmental reform agenda, including a commitment to reform pollution management.56 The contaminated sites provision of the EHCA (NSW) 1985 was to be transferred to new legislation (NSW EPA 1996a). Instead of the EHCA (NSW) 1985, seen ten years earlier to represent a new era of environmental management, the key laws to be rationalised in the name of effective pollution management were the CAA, the CWA, the Pollution Control Act 1970, the Environmental Offences and Penalties Act 1989 and the Waste Disposal Act 1970 (NSW EPA 1996e).
56 Refer, for instance, to the speech given by the Hon. Pam Allen, Minister for the Environment (Item 3, Appendix B).
105 The EHCA (NSW) 1985, as a policy measure to bring about integrated legislative reform allowing ‘cradle to grave’ protection from toxic chemicals; to initiate a regime of pollution prevention, and to allow the rationalisation of existing legislation, had failed. Corporatist priorities of consensus and economic growth, bureaucratic inertia and capture by sectoral interests had precluded reform. Its major role had been projected to be as the legal measure allowing the notification and assessment of chemicals. In the end, it became an irrelevant piece of legislation, marginalised by centralist corporatist policies of the Hawke government. 3.3.1 Administrative and legitimacy deficits The history of the EHCA (NSW) 1985, as it traces the response in NSW to the first period of the environmental challenge, demonstrates a failed attempt at environmental policy reform, in terms of both administrative and legitimacy deficits. The study shows the state pushed to instigate reform in NSW as a result of increased social contestation in the late 1970s and early 1980s on issues to do with toxic chemicals and pressures from international markets for harmonisation. By the early 1990s the legislation was described as a failure. The EHCA (NSW) 1985 did not achieve its mission as umbrella legislation for the control of toxic chemicals. In the context of the interventionist state, the reforming measures of the EHCA (NSW) 1985 were dependent upon the institutionalisation and rationalisation of regulatory science so as to cover all aspects of the usage of chemicals. However, this was prevented by lack of co-ordination and thus problem-displacement between state agencies and between State and federal political interests. The traditionally close alliances between the unions and the ALP and the political tenor of a period which had the unions and the ALP attempting to turn ‘their historical association into an institutional asset for Labor in office’ (Kelly 1992, p. 56), and attempting to alleviate the recent poor economic record of Australia (Department of Trade 1987, p. 16) had precluded a stronger stance from the union representatives. Industry was given insider status because of the traditional relationship between the state planning and regulatory authorities and industry sectors. Furthermore, the narrow, specific and competitive functioning of the bureaucracies involved, reinforced by commitments to
106 specialised areas of scientific knowledge, precluded the passage and implementation of reformist and ecologically rational legislation. 57 As well, structural characteristics of the Australian state, such as the combination of a strong state, with effectively fused executive and legislative functions, at both federal and State levels, working within a tradition of state support for agricultural and other industry concerns, ensured that the formulation of the legislation was qualified by economic interests. Given a regulatory context where economic requirements were accepted as justification for pollution, corporatist structures and processes were readily utilised to resolve the competing environmental diagnoses. Thus democracy was shortcircuited by corporatist arrangements geared towards the prearranged consensus on economic growth. Other problems of democratic representation indicated by this first period of the study include the struggle between representative and direct democracy, in the context of a public customarily distant to issues of governmental decision-making. In summary, the EHCA (NSW) 1985 offered the potential to satisfy some of the most pressing of the challenges of the first period of the environmental problematic. According to the proclamations of its proponents, it was to enable the co-ordinated control of chemicals from ‘the cradle to the grave’, and to allow the public to participate more fully in environmental risk management. Yet it has to be concluded that the EHCA (NSW) 1985 signally failed to achieve the policy aims. Firstly, aside from the provisions for contaminated sites, in its mission to rationalise and reform toxic chemical legislation in NSW it failed to impact on the existing system of regulation. Lack of coordination allowed problems to be displaced across bureaucratic departments and federal/ State boundaries. Secondly, both the process of formulation and the terms of the Act show democratic deficits concerning public participation and accountability. Despite the escalating public concern expressed at the potential risks from toxic chemicals, the values and commitments embedded in the legislation remained largely determined by the needs of stability and consensus, domestic economic growth and sectoral political expediency, rather than expressive of democratic and ecologically rational concerns. Alliances between the planning authorities, economic interests and the unions were legitimised by
57 Weale, for instance, describes startling failures of implementation with the US Clean Air Act of 1970; the United Kingdom 1974 Control of Pollution Act, and in Germany examples of bargaining compromised what were theoretically strict emission standards (Weale 1992, p. 154).
107 the move to international harmonisation and by the medicalisation of chemicals control through worker health and safety. Hence the EHCA (NSW) 1985 acts as an exemplar of its age: of the political shift to the negotiated agreement between the centralised state and selected interest group representation in support of economic concerns; of the stirrings of globalisation and of the opposing forces for community participation in environmental decision- making. Aspirations for its success derived from the ethos of the rational, technically informed decision-maker, as well as the benefits of international co-operation and the politics of consensus. In the 1990s, in the face of the new challenges of the second period of the environmental problematic, these planks of legislative reform are in doubt. Risk management is seen as dependent upon political decentralisation and international agreements, supervised by the logic of the markets. The following chapter analyses the policy response to the second phase of the environmental problematic via a continued analysis of the history of the EHCA (NSW) 1985 in its political and regulatory context.
108 Chapter 4 From the Corporatist State to the Devolving State: the EHCA (NSW) 1985 and the Second Phase of the Environmental Challenge The speed with which economic rationalism has come into vogue in this country is a matter of some satisfaction to those of us who have promoted it over the years. There is widespread agreement that those who spend the taxpayer’s dollar are accountable for it, and that the limitations on successful government intervention in the economy are greater than once believed (Greiner 1985, cited in Jaensch 1992, p. 282). 4.1.0 The second phase of the environmental challenge The regulation and control policies of the first period of the environmental response in NSW, as instanced by the history of the EHCA (NSW) 1985, revealed both administrative and legitimacy deficits. Despite increased public concern, pollution continued to be accepted as a necessary by-product of development, to be controlled within scientifically ascertained standards by a variety of regulatory instruments and government departments, under the central authority of the corporatist state. The case study of the EHCA (NSW) 1985, as described in the previous chapter, indicates the shortcomings of this period.1 This chapter examines the politics of toxic chemicals management in the second period of the environmental response, from the late 1980s until the end of 1997. As discussed in Chapter 1, this was a time when important changes were taking place in the governing alliances in Australia. In tracing the shift into the conditions of the second phase of the environmental problematic, this chapter uses the history of the NSW Act to document the change in environmental discourse as it responds to the global, complex and more uncertain problems characteristic of this phase. These include ‘ozone depletion, climate change, air quality, water quality, land degradation, the maintenance of biological diversity, public health and heritage conservation’ (NSW EPA 1996f, p. 21). As with the first phase, the political risks and challenges associated with the provision of public goods and the harnessing of collective action remain. But these
1 The inadequacy of this approach is further evidenced by data on the emission of toxic pollutants collected under the US Emergency Planning and Community Right to Know Act (SARA Title 111). It shows that despite the existence of a wide range of pollution control legislation, 4.57 billion pounds of toxic chemicals were released into the air, water and land in the USA in 1988 (Ramsey and Rowe 1995, p. 526).
109 challenges for the state are now further compounded by involvement in complex technical issues: problems whose scale often exceeds the boundaries of those living within a political system at any one time, and the difficult questions of political diplomacy required to solve pollution problems at their source rather than merely dealing with their effects (Weale 1992, p. 9). In tracing the response to these challenges in NSW, this chapter firstly sets the EHCA (NSW) 1985 in the political and regulatory context of the second phase in Australia. In this period, the policies of the interventionist and corporatist state at both federal and State levels in this country were replaced by those of a political program based in neo-liberalism. Charting the history of the EHCA (NSW) 1985 shows that, over this second period, the EHCA (NSW) 1985 is marginalised by a raft of policy changes expressing new themes of environmental management: consolidation and rationalisation, privatisation, user-pays, local government responsibility, and community right-to-know measures. Hence the fate of the EHCA (NSW) 1985 reflects a new era of policy emphasis associated with devolution of state responsibility and more reliance on market-based policy tools. A critique of these policy changes argues that the shift from the interventionist state towards policies relying upon decentralised markets is associated with new demands on the politico-administrative system and new challenges to representative democracy. New administrative, implementation and legitimacy deficits emerge. 4.1.1 The political context: neo-liberalism and the heterogeneity of environmentalism The only true wilderness lies between the ears of a Greenie (Sign hanging in the Bulahdelah Hotel, Bulahdelah, NSW, 1997). The environmental politics setting the context to the second phase of the environmental problematic in Australia is framed within several major themes. Firstly, the heterogeneous nature of the discourse of sustainable development (Dryzek 1997) and, in a broader sense, of environmentalism itself (Christoff 1994). Secondly, there is the continuing relationship between economic interests and the state, a relationship extended in recent years to include neo-conservative political lobbyists (Beder 1997; Kelly 1992).
The uncertainty of this second phase of the environmental problematic is reflected in the diversity of the environmental discourse. Further, although the policy priorities in
110 this country have been developed according to the standard lexicon of sustainable development (Commonwealth of Australia 1992), the diverse interpretations of these statements leave sustainable development vulnerable to politicisation by a ‘host of economic and development concerns’ (Dryzek 1997, p. 121), reflecting the variety of stakeholders with ‘substantive’ interests in its political interpretation (Dryzek 1997, p. 124). Accordingly, as with other countries of the developed world, the environmental policy community in Australia has expanded to involve new stakeholders and new intellectual and philosophical conceptions (Weale 1992, p. 28). Although, collectively, environmentalists have remained unpredictable and disunited in Australia, reflecting heterogeneous ideologies and diverse action strategies (Christoff 1994, pp. 354-356)2, two major groupings developed in the first phase of the environmental problematic and consolidated their separate identities in the second. One grouping is made up of the larger, better resourced organisations such as the ACF, and the other of the many local and community organisations and more radical, ‘postmaterialist’ small groups (Papadakis 1993). In the second phase, environmentalism has also moved into the mainstream political agenda, although a unique feature of the new environmentalism in Australia, arguably giving it strength and resilience, has been its appeal across party allegiances (Eckersley 1996, p. 75). Despite the fact that the leading political parties have taken up environmental responsibility as a legitimating ideology over the last decade (Eder 1996, p. 204)3, direct action has remained an effective strategy for environmentalists during this second period. In one example, the Clean Waters Campaign of 1989-90, conducted by Greenpeace, showed up some major Australian companies as polluters of the nation’s waterways.4 In the process of this campaign, the co-operative and conciliatory policy of the SPCC in NSW was exposed as complicity (Bonyhady 1993, p. 110), a reflection of the continuance of
2 For example, by1991 there were 766 environmental organisations in Australia (Ramsey and Rowe 1995, p. 102). 3 The 1990 Federal election is a good example. By then, country surrounding the Coronation Hill mine in the Northern Territory, which Labor Minister Gareth Evans had labelled ‘clapped-out buffalo country’ in 1986, was being incorporated into National Park. Labor used the green vote to marginalise the conservatives and won a close election, having received support from green preferences (Kelly 1992, pp. 538-542). 4 In 1988-89 BHP Newcastle was shown to have discharged more than 20 times as much cyanide into the Hunter River than it should have. The SPCC was quoted as saying it was not prosecuting exceedances. (Rintoul 1990, p. 3).
111 the traditional alliance between development interests and the state into this second period of the environmental challenge. The previous chapter has indicated the increasing influence of neo-liberalism in this country since the mid-1980s. It has been most overtly displayed in the Liberal Party, as the laissez-faire liberalism, which has remained as a strong thread within the Liberal Party in Australia, has radicalised in sympathetic response to departures in conservative political philosophy in the UK and US (Kelly 1992, pp. 252-253). Thus the early 1990s saw the demise of the ALP and the election of Nick Greiner as Liberal Premier of NSW, and John Hewson as Leader of the Liberal Party of Australia, both men enthusiastic supporters of economic rationalism (Jaensch 1992, pp. 281-282). However, the shift away from state intervention and towards efficiency and ‘savings’ has been largely bipartisan and associated with a ‘wave of structural reforms which consolidated the institutionalisation of economic rationalism in Canberra’ (Pusey 1991, p. 4). Thus despite changes in government, both in NSW and at the federal level, this bipartisan shift has resulted in a continuity of policy assumptions and directions. Over this period, this movement has been supported by a group of influential right-wing think tanks, including the Centre for Independent Studies, the Institute for Public Affairs and the H. R. Nicholls Society. The political aim was to further the cause of the free market and free choice in the cause of greater efficiency and responsiveness (Pusey 1991, p. 46). Over the last decade, resources and development interests have gained support from this growing political movement, which has directly opposed the upsurge of environmentalism. Kelly, for instance, asserts that the most important backer for the New Right has been the Australian leader of business and of the resources lobby: Hugh Morgan, Chairman of the large Australian multinational, Western Mining Corporation (Kelly 1992, p. 46). The think tanks have lent support to the ‘corporate activism’ opposing environmentalism by putting forward arguments, for example, against recycling and for an enhancing of the Greenhouse Effect and have published articles of the ‘greenwash’ genre attacking other environmentalist concerns (Beder 1997, pp. 82-96). Each of these themes of the diversity of environmentalism and the nexus between the neo-liberal political movement and economic interests has influenced the progress towards the obtaining of Australia’s commitment to Agenda 21. In 1992, the three tiers of Government in Australia adopted the National Strategy for Ecologically
112 Sustainable Development at a meeting of the Heads of Government of each of the jurisdictions. However, the process by which the sustainable development policy documents were produced by the nine Industry Working Groups in 1991 and 1992 was compromised by the overt conciliation of economic interests (McEachern 1993, pp. 175-180). Differences appeared between the diverse array of environmentalist organisations, with Greenpeace and the Wilderness Society boycotting the process of negotiation (Christoff 1994, pp. 354-356). Only the ACF and the World Wildlife Fund stayed in the process to argue the sustainable development deliberations (McEachern 1993, p. 177). As a result, the ESD Recommendations offer general suggestions for manufacturing to ‘review’ environmental management principles (ESD Steering Committee 1992, p. 49); and to ‘encourage moves by industry to develop self-regulatory codes of practice’ (ESD Steering Committee 1992, p. 43). Five hundred or so such recommendations were handed to thirty-seven committees. Rather than the concrete action plans proposed by the environmentalist groups, the recommendations were later watered down into high-level national strategies for sustainable development and greenhouse response (Hamilton 1996b). 4.1.2 The regulatory context: stepping back from intervention The regulatory context is thus set by a political agenda aimed at protecting business interests from intrusion in the name of environmental management, a stance largely endorsed by organised labour (Rosewarne 1993, p. 57). Hence the mining industry has consistently influenced even the application of market-based policies such as polluter pays (Beder 1993, p. 101). Both the farming and mining lobbies have managed to convince the Federal Government that Australia’s export-and commodity based economy makes it difficult for environmental protection to be affordable to the nation (Booth 1996, p. 35). Yet the embracing by Australia of Agenda 21 acknowledges the shortcomings of a regulatory approach that is not geared to anticipatory or precautionary environmental policy. The successful application of anticipatory or precautionary environmental policy requires ‘structural changes in the existing political and administrative system because it must cover a scope broader than the conventional, media-specific policy’ (Simonis 1993, p. 44). However, the hegemonic political agenda of the New Right in Australia, expressed variously is the discourse of economic rationalism, economic
113 liberalism or neo-conservatism (Dryzek 1997, p. 102; Head and Bell 1994, p. 37), dictates that these challenges must be met by stepping back from state intervention. The accepted policy rhetoric of sustainable development places a new emphasis on pollution prevention through the inclusion of environmental considerations into the broad range of policy, intended to find positive-sum solutions to the contradiction between economic growth and environmental protection, and on changing attitudes as well as setting out regulations (Weale 1992, pp. 26-27). In Australia, such rhetoric has been harnessed to the range of policy provisions associated with the perceived advantages of the decentralised market, rather than the combination of ‘proactive structural change in the economy’ and a ‘preventative environmental strategy’ required to make a real change in environmental impact (Simonis 1994, p. 53). Thus the second period of the environmental response has seen a growing emphasis on market-based policy tools at both State and federal levels. Sustainable development is the declared broad goal, but in association with a reliance on the managed market, through the use of economic incentives to allocate public goods, rather than on the state intervention and administrative rationality associated with the first period of the environmental challenge. Policies using market-based or economic instruments have been taken up in particular by agencies formulating resource policies, such as the Australian Bureau of Agricultural and Resource Economics (ABARE). They have also had a demonstrated influence on the environmental discourse of Commonwealth Government Departments such as Treasury and the Economic Planning Advisory Council (Rosewarne 1993. p. 57). A major plank to support the efficient operation of a market-based environmental strategy has been the rationalisation of existing procedures and the establishment of new governmental structures geared to coordinated decision-making. The signing by the Commonwealth and the Australian States and Territories of the Intergovernmental Agreement on the Environment (IGAE) was such a strategy. It was initiated in reaction to the disputes of the 1970s and 1980s, such as over the Franklin Dam, that had seen environmentalists exploiting the division of authority between State and Federal tiers of authority (Harding 1998, pp. 329-336). Hence the federal policy response to the challenges of the second phase of the environmental problematic moved away from centralism and is focussed on the delegation of State responsibility, and on national co-ordination and on efficiency. The backbone of this initiative is the IGAE,
114 which confirmed that, in terms of the Australian constitution, the major responsibility for environmental issues lies with the States and Territories.5 The major means for implementing this coordinated State/ Commonwealth approach has been the establishment of the National Environmental Protection Council (NEPC) and the National Environment Protection Measures (NEPMs).6 The NEPMs comprise of standards, goals, guidelines or protocols, to be put into effect by State Environment Protection Policies (SEPPs). The precautionary guiding principles of IGAE have been the basis of changes in pollution laws across Australia, including PROTEA 1991 (NSW), POEOA 1997 (NSW), the Environment Protection Act 1993 (SA); the Environment Protection Act 1994 (QLD), and the Environmental Management and Pollution Control Act 1994 (TAS). Devolution has been accompanied by some Federal measures initiating community-right-to-know. Underpinned by the principle that community expectations can provide a very strong impetus to reduce or prevent pollution at source, a National Pollution Inventory (NPI) has been established. The aim of the NPI is to provide information to the community on pollutants of over 90 substances discharged into the environment, in the form of emissions to the land, water or air.
5 According to Senator Parer, Minister for Resources and Energy, the Federal Government is working towards ‘a Commonwealth-State environmental regime which confirms prime responsibility lies with the State and Territories’ (Senator Parer quoted in ACF 1997, p. 7). This policy has been progressed in 1997- 1998 by proposed Commonwealth legislation. The Environment Protection and Biodiversity Conservation Bill has caused a storm of protest (Environmental Manager 235, 1999). The proposed legislation extends Commonwealth accreditation to State environmental processes and decisions. Much of the Commonwealth responsibility is to be collapsed into three Acts: an Environment Protection Act, a Biodiversity Conservation Act, and new heritage legislation. Non-environmental triggers for Commonwealth intervention are removed. The EDO and other environmental organisations argue that the legislation is being rushed through the Senate; that handing over so much environmental responsibility to the States prevents the Commonwealth ruling on matters of national environmental significance, and that the degree of ministerial discretion allowed means that the Minister for the Environment could tailor EISs to particular proposals, avoiding public participation and minimum information requirements. On the other hand industry is concerned that the Bill takes us back to ‘command and control’ days. Industry would prefer more ‘co-operative’ measures (Environment Business 1999; Environment Business 1998; Horstman 1998, p. 21). 6 The NEPC stems from the Special Premier’s conference held in 1990 and is a statutory body with law- making powers. Members of the Council are Ministers (not necessarily environment Ministers) appointed by first Ministers from each participating jurisdiction (Commonwealth, State and Territory Governments). The NEPM is intended to be a means whereby the Australia’s most disparate and fragmented systems of environmental management are to be standardised by such measures as national air goals and a hazardous waste tracking system (Environmental Manager 1996c; Harding 1998, p. 233).
115 4.2.0 The fate of the EHCA (NSW) 1985 and the politics of neo-liberalism As at the federal level, the environmental policy responses of the second phase in NSW have been underpinned by the core aims of the neo-liberal program: to diminish the role of the state in environmental decision-making and to increase efficiency and responsiveness by increasing social choice and by the establishment of policies giving priority to the principles of the competitive market. Echoing a national shift to the politics of neo-liberalism, the major trends in environmental policymaking over the last decade are the consolidation and rationalisation of state structures and processes, the introduction of economic policy tools, self-regulation and privatisation, and devolution of responsibility for action to local government and to the community. Two further policy elements supporting the transfer of responsibility away from the state in NSW have been the promotion of corporate environmental management and of environmental education. Attitudinal change through education has been promoted as necessary because ‘the fundamental causes of environmental problems cannot be solved simply by applying technological or ‘command and control’ solutions’ (NSW EPA 1996f, p. 1). The history of the EHCA (NSW) 1985, as it is overtaken by the reforms associated with the passage of PROTEA 1991 and subsequent legislation, traces attempts to limit the perceived intrusions of the welfare state, and to reduce the demands upon the state agency, but to do this with a mandate of public trust. Accordingly, measures giving the community, local government and industry more responsibility for environmental management are accompanied by measures to increase information and extend social choice. 4.2.1 Consolidation and restructuring measures The EHCA (NSW) 1985 has faded in importance over the last decade, a victim of the new emphasis on consolidation and rationalisation of pollution management measures.7 Legislative initiatives such as the Environmental Offences and Penalties Act 1989, PROTEA 1991 and POEOA 1997 have subsumed its major functions and diminished its relevance. The Environmental Offences and Penalties Act 1989 prepared the way for PROTEA 19918, which in turn provided for POEOA 1997 and the Contaminated Lands
7 The fading importance of the EHCA (NSW) 1985 (NSW) 1985 in the 1990s is demonstrated by the fact that the HCAC had only 3 meetings in 1993-4 (NSW EPA 1994b, p. 15). 8 The Environmental Offences and Penalties Act 1989 (NSW) was the first Australian legislation to expose companies to $1 million fines and their directors to gaol terms. Although this legislation was used by the NSW Liberal Government in 1989 to establish their ‘environmentalist’ credentials, as opposed to
116 Management Act 1997. The restructuring measures of both these latter pieces of legislation have marginalised the EHCA (NSW) 1985 and represent the priorities of the new era of environmental reform. PROTEA 1991 set the base for the characteristic regulatory reforms of the second phase in NSW by legislating for the establishment of the NSW EPA. It influenced directly all legislation, such as the EHCA (NSW) 1985, which had previously depended on the SPCC for its monitoring. The NSW EPA incorporated the environmental and regulatory functions of the former SPCC, the former Waste Management Authority, Radiation Control from the Department of Health and the Ministry for the Environment. PROTEA 1991 initiated the consolidation and rationalisation process by giving the NSW EPA the responsibility for improving operating procedures by reviewing the regulatory framework for environment protection and advising on its rationalisation and simplification in accordance with the principles of ecologically sustainable development.9 Despite reform of pollution law in NSW having being promised since the late 1980s (NELA 1997, p. 9), it was not until 1997 that two key legislative tools of the new reform program, the Integrated Development Assessment (IDA) Act 1997 and the POEOA Act 199710, passed through the NSW Parliament, both much amended after a controversial consultation period. The POEOA legislation subsumed five existing Acts: the CAA 1961, the CWA 1970, the Noise Control Act 1975, the Pollution Control Act 1970, and the Environmental Offences and Penalties Act 1989, and incorporated the major regulatory provisions of the WMMA 1995. Importantly for the streamlining strategy of the new era, it provides for pollution licences covering both construction and operating stages of an activity and facilitates the integration of licensing with the planning approval procedures by means of its linkage to the IDA 1997. These two pieces of legislation have restructured the development consent process and the pollution licensing processes
the ‘miserable’ record of their opponents, Bonyhady points out that the Victorian Environment Protection Act 1970 which integrated pollution provisions for air, water and land was a much earlier, and more revolutionary, piece of legislation (Bonyhady 1993, p. 111) 9 PROTEA 1991 Section 7(1)(d) and s6 (2). 10 The Integrated Development Assessment Act (IDA) is an amendment to the Environmental Planning and Assessment Amendment Act 1979 (EPAAA), although it is referred to in this text as the IDA.
117 in NSW. As well as linking the development consent process to other approvals to be gained through POEOA 1997, the IDA 1997 reduces the matters which local councils must consider when evaluating development consents to a very general list of five criteria (EDO 1997a, pp. 9-12).
Hence the legislation now seen as most relevant to pollution management in NSW does not include the EHCA (NSW) 1985. The ‘landmark’ legislation for ‘cradle to grave’ measures of the control of toxic chemicals of a decade earlier, the EHCA (NSW) 1985, has been ignored in the consolidating measures of POEOA 1997 and the IDA 1997. Consideration of the whole life cycle of substances and of production, as a ‘cradle to grave’ concept, was not a priority for incorporation into this legislation.
The EHCA (NSW) 1985 is also marginalised by new legislative measures for the management of contaminated sites. The previous chapter indicated that, despite the more wide-ranging expectations from the EHCA (NSW) 1985, the management of contaminated sites was its major area of application throughout the first period of the environmental challenge. In the second phase, the contaminated sites provision of the EHCA (NSW) 1985 has been subsumed, and its functions transferred to the new single piece of legislation, the Contaminated Lands Management Act 1997. This Act was the means of rationalising the four Acts to do with remediation and management of contaminated sites: the Unhealthy Building Land Act 1990, the EHCA (NSW) 1985 1985, the Environmental Offences and Penalties Act 1989 and the CWA 1970. It gives the NSW EPA the power to regulate ‘significant risk sites’.11 But importantly, it specifies the obligations of those parties who have interests in contaminated land, sets up a hierarchy of liability, and gives new powers to the EPA to make declarations and issue orders to investigate and remediate contaminated sites (NELA 1997, p. 4).12 Recent waste reforms in NSW have also prioritised the pruning of state responsibility through restructuring. The WMMA 1995 formally established the principle of a planned waste management hierarchy and management system. The WMMA 1995 reforms renamed the 25 -year old Waste Disposal Act 1970, which had previously controlled the waste generation, collection and disposal in the Sydney metropolitan area, as the Waste Recycling and Processing Service Act 1970 and
11 See s6, s7, s8. 12 Ss11-29
118 established new planning frameworks by the provision for a regional waste planning and management scheme and by the creation of Waste Boards (NSW EPA 1996d, pp. 1-3). It rationalised the generation, storage, transport, reprocessing and disposal of waste for all NSW and committed NSW to a specific waste reduction target (NSW EPA 1998c, p. 13). Consolidation measures in the WMMA 1995 include the amendment to the CWA 1970, which provided that if a licence is issued under the WMMA it is not required under the CWA 1970. Other recent initiatives consolidating power to the NSW EPA include its takeover in 1995 of the regulatory functions for enforcing the control of pesticides from NSW Agriculture. 4.2.2 The shift to economic policy tools The history of the EHCA (NSW) 1985 in this second period also reflects a shift away from ‘command and control’ policy towards the use of economic policy tools. The general power to ‘introduce and advance tailor-made economic instruments’ for this new era of reform was provided by PROTEA 1991 (NSW EPA 1997b, pp. 36-38) and an ‘increasing use of economic mechanisms’ is a major element in the ‘new approaches to environmental protection’ taken by the NSW EPA over the last five years.13 The EHCA (NSW) 1985 was marginalised as a means of pollution management by the POEOA 1997 legislation, which places more emphasis upon the concept of user- pays. POEOA 1997 increases fees payable for licensing and assessment applications and sets the stage for the imposition of economic incentives through its provision for the establishment of Protection of the Environment Policies (PEPS) (Appendix C, Item 3), which must include an environmental protection goal, standard guideline or protocol (NELA 1997, pp. 9-12).14 POEOA 1997 attempts to put the externalities back onto the polluter by imposing a duty to notify a pollution incident and by providing for mandatory and voluntary audits and clean-up notices (NELA 1997, pp. 9-12). Most importantly, however, POEOA 1997 symbolises the norms of the new era because of the Pollution Control Act (Load-Based Licensing) Amendment 1997. As indicated above, this Act is one of the component acts of POEOA 1997.15
13 The Hon. Pam Allen, Minister for the Environment in NSW, quoted in NSW EPA 1998b. 14 Ss9-11. 15 Part 3 and Part 4 of the Pollution Control Act Regulation 1998 provide for load-based licensing.
119 The NSW EPA has promoted load-based licensing in recent years as an incentive for industry to improve performance. Thus: Industries in a particular area may, by exchanging trading licences, negotiate the extent to which each contributes to the overall pollution reduction target for the area. In its flexibility, the schemes recognise that some industries can reach a given level of pollution reduction more easily, more cheaply and more quickly than others (NSW EPA 1994b, p. 36). Previously trialled in load-based licensing schemes to deal with salinity in the Hunter River16 and to control nutrients in the Hawkesbury-Nepean River (NSW EPA 1994b, p. 36; NSW EPA 1994d), the Load-Based Licensing Amendment was finally passed in 1997, but was first delayed in implementation until late 1998, and then until mid-1999, because of administrative ‘overload’ and the need for ‘fine-tuning’ (Environment Business 1999, p. 6). This legislation sets limits on the amount of pollution an organisation can release as well as the concentration and links the amount and harmfulness of the emission to the amount of money paid for the licence (EIA 1997b). The NSW EPA has strenuously canvassed pollution load calculation with industry, and has produced a Licence Compliance Kit to assist industry, including Draft Load Guide Calculation notes for nineteen industries. Phase 1 of the new regime will see a new pollution load fee for one thousand of the State’s largest pollution licence holders, leaving those other industries to be calculated in Phase 2 (Environment Business 1998c). The shift away from the EHCA (NSW) 1985 as a means by which to regulate contaminated sites also reflects the new emphasis on economic efficiency and economic policy tools. Pressure for new legislation for contaminated sites came from the ‘financial sector’, apparently ‘concerned about developments in the United States under CERCLA’ (the Superfund program) (NSW EPA 1996a, p. 5). In accordance with the priority now given to economic efficiency, the NSW EPA advised against the establishing of a fund comparable to the Superfund program because ‘unless the responsible parties are seen to be required to pay there will be inefficiency and waste of resources’ (NSW EPA 1996a, p. 30). Other principles of the new Contaminated Land Management Act 1997 underline the priorities of the period. They include application
16 NSW EPA documents discuss the ‘substantial implementation issues’ associated with such schemes (such as the equitable initial allocation of salt permits (NSW EPA 1994d, p. 29).
120 of the user-pays principle to site clean-up and financial incentives from the private sector including income tax incentives for remediation (NSW EPA 1996a, pp. 8-37). Polluter-pays measures have also been introduced into the new waste legislation. The WMMA 1995 provides for the linking of waste control licences to compliance or face product bans and financial sanctions; the use of economic incentives to correct distortion of the waste disposal market towards landfill and incineration disposal; environmental levies to encourage alternatives to disposal, and supervisory licences to enable partnerships between private companies and waste management boards in the establishment of new putrescible waste dumps (Wainright 1995, p. 3). Thus the fading importance of the EHCA (NSW) 1985 traces the new priorities of the second environmental era. Of recent years, the NSW EPA has repeatedly argued that traditional regulatory ‘command and control’ measures of the interventionist state should be supplanted with economic instruments and educational programs (NSW EPA 1994a; NSW EPA 1994b; NSW EPA 1997b). Taxes and charges, subsidies, deposit/ refund schemes, tradeable permits and financial enforcement schemes have been promoted as producing better environmental outcomes at less cost (NSW EPA 1994a, pp. 18-19). Economic elements of the sustainable development discourse have been emphasised (NSW EPA 1996b, p. 11) and the benefits of the market in enabling social valuations of the environment underscored. According to one NSW EPA document, ‘if the benefits of protecting the environment are not traded in the market place they are often undervalued’, and discussion on sustainability should include ‘the links between economic and environmental objectives’ (NSW EPA 1996b, p. 11). Cost-benefit analysis has been promoted as a means of identifying and determining the value that society places on environmental resources, with the NSW EPA developing ENVALUE, and environmental valuation data-base to bridge related information gaps.17 4.2.3 Devolution and self-regulation measures The period from the late 1980s until 1997 has also shown a new emphasis on devolution of responsibility, self-regulation and privatisation. The change was flagged by Minister Bob Carr as long ago as 1987 at the second reading of the SPCC Amendment Bill, the CAA, CWA, EHCA (NSW) 1985 and Noise Control (Amendment) Bills. It was announced that there would be an increase in the ‘efficiency, effectiveness and
17 Information available at the website http://www.epa.nsw.gov.au/envalue.
121 accountability’ of environmental legislation to do with pollution, but without disruption to industry, initiatives which would reinforce the principle that the SPCC was not a ‘prosecuting’ agency, but would ‘seek solutions in the first place’ (Hansard 1987a, p. 14, 923). Thus the EHCA (NSW) 1985 (Amendment) Act 1987 limited the public accountability of the EHCA (NSW) 1985 and saw a shift towards self-regulation. It provided for the SPCC to make a chemical control order without notice, and allowed for industry to be more self-regulating (Hansard 1987b, p. 16,876). Reflecting bipartisan policymaking, the Amendment Act was supported by both sides of Parliament. In another gesture of ‘co-operation’, the Environmentally Hazardous Chemicals Regulation 1994 further strengthened the secrecy provisions in s13 (3) of the Act. In a further move towards the sharing of responsibility with the private sector, the EHCA (NSW) 1985 (Amendment) Act 1996 made more provisions for contaminated premises, so that site audits may be carried out by independent, accredited auditors. This amendment fastracked site auditor schemes which were then transferred into the legislation subsuming the contaminated sites provisions of the EHCA (NSW) 1985: the Contaminated Lands Management Act 1997 (Environment Business 1998a, p. 5). ‘Co-operation’ is a guiding principle of the new legislation. It fails to make it an offence to contaminate or pollute land in NSW (EDO 1998c, p. 5); enables shared responsibility with local councils by means of shared data bases (NSW EPA, 1996a, pp. 8-37), and makes provision for contaminated sites to be co-regulated in a two-stage scheme involving contaminated site consultants and site auditors who are accredited and monitored by the NSW EPA. 18 POEOA 1997 and PROTEA 1991 are both underpinned by the goal of lessening state intrusions by involving the private sector, the community and local government. Thus a key reforming aspect of PROTEA 1991 was the provision of a range of powers to the NSW EPA directed at involving the public in environment protection. Under such provisions, community consultation forums have been established, both State and regional forums consisting of equal numbers of representatives from the community, from industry, and from local and State Government (NSW EPA 1994b, p. 21).
18 Ss 49-50
122 PROTEA 1991 also requires State of the Environment reporting to be done every two years, providing ‘useable’ data so that decision-makers can be assisted to achieve sustainable development, and the public can have access to information that will raise their environmental awareness. Trends in economic analysis, including the costs and benefits, of environment protection must be included (NSW EPA 1996b, p. 3). The other legislation impacting significantly on the fate of the EHCA (NSW) 1985 is POEOA 1997, whose core function is the provision of streamlining measures, designed to make regulation less intrusive and more efficient. According to the NSW EPA, POEOA 1997 was not to be concerned with ‘merely consolidating’ but with modernising so as to ‘deliver strong environment protection without imposing unnecessary regulation on responsible industry’ (Corbyn 1997, p. 2). Thus POEOA 1997 combines the current pollution approval and the pollution control licence, so that ‘licences will be able to control both initial development work allowing the scheduled activity to be carried on and its subsequent carrying on’, and, rather than requiring annual renewal, licenses are now to be reviewed only every three years (NSW EPA 1998c).19 Further co-operative, as opposed to coercive, measures of POEOA 1997 include the provision for PEPs: measures meant to guide (and thus encourage), or to be taken into account, rather than to enforce, the setting of environmental standards and goals, guidelines for achieving them, and protocols for measuring whether the standards have been achieved (Refer Appendix B, Item 3).20 Hence the course of events in the history of chemicals control in NSW reflects the political priorities at the federal level, which have ‘encouraged ‘accreditation, devolution and delegation’.21 Moreover, the stated focus of the NSW EPA is on efficiency as measured in economic terms in that ‘the use of public funds should be kept to a minimum’ (NSW EPA 1996a, p. 28). Even in defining ecologically sustainable development, PROTEA 1991 brings in economic considerations (Stein and Moroney 1997, p. 5). The NSW EPA has set out to obtain self-commitment by industry to
19 s78 20 A recent legislative proposal in the NSW Parliament has underlined the determination of the current political regime to ‘elasticise’ regulation. The Subordinate Legislation Amendment (Regulatory Flexibility) Bill 1998 aims to outlaw prescriptive regulations (regulations which impose detailed, defined requirements and standards on people), in the process allowing more direct Ministerial intervention (EDO 1998b; Environmental Manager 1998c, p. 4). 21 Comment by Simon Molesworth, President, Environment Institute of Australia (EIA 1998, p. 1)
123 environmental reform and to establish a private sector interest in environmental management. Educational and local government initiatives have been used to facilitate the shift in responsibility. The dependence upon the co-operation of industry has also had implications for legislative ‘right-to-know’ measures, an implicit ‘trade-off’ being less enforced disclosure in return for co-operation. The context to the changing themes in pollution management is also set by the companion legislation to POEOA 1997, the IDA 1997. The IDA directly shifts responsibility for environmental protection onto the private sphere by its creation of a private certification scheme in which private accredited certifiers can grant consent to development categorised as ‘complying development’.22 Privatisation is also provided for under the WMMA 1995, with the NSW EPA maintaining licensing provisions but enabling privatisation for the transportation of hazardous waste, sewage sludges and nominated classes of waste, and in relation to waste disposal and reprocessing facilities (NSW EPA 1995c, p. 4). Furthermore, workplace control of environmental conditions through the codifying of workplace health and safety schemes remains reliant upon self-regulation by industry. Thus the ACIC codes of practice, Responsible Care, are designed to improve health, safety and environmental performance (ACIC 1993). The Occupational Health and Safety (Hazardous Substances) Regulation 1996 and the three approved codes of practice passed in 1996 relegated management of hazardous substances to the workplace. The 1996 Regulation states the underlying principle of self-regulation by industry through voluntary codes of practice:
Under this new style of Regulation, it is industry’s responsibility to find ways to meet the standards through self-regulation, rather than following rigid rules as set down in the older style legislation (Workcover NSW 1996, p. 15-16). The Material Safety Data Sheet (MSDS), to be filled out by chemical suppliers and manufacturers, gives importers and manufacturers the responsibility of determining whether or not a substance is hazardous; of evaluating chemical properties; of producing the label and the MSDS, and of indicating ways of reducing the hazard. The employer’s responsibilities include implementation of control measures and staff training and
22 Schedule 1, Part 4 of the Environmental Planning and Assessment Amendment Act 1997 (EPAAA)
124 assessment of the workplace hazards created by using the substance (Workcover NSW 1996, pp. 4-5). Local government, through POEOA 1997, the IDA 1997, the WMMA 1995, and the Local Government Amendment (ESD) Act 1997, has new responsibilities including: developments in waste control; development, building and subdivision approval; pollution licensing; remediation of contaminated sites, and the legislative requirements for ecologically sustainable development. Under the WMMA 1995, waste management regions have been established, to be largely composed of local government representatives. Under the Waste Management Regulation 1996, local councils are to manage generic regulations ensuring all transporters and generators of waste have minimum basic operating rules, although the more hazardous activities are to be managed by the NSW EPA. The Local Government Amendment (ESD) Act 1997 links the local council’s environmental charter, management planning process, annual reporting and State of the Environment reporting to the principles of ecologically sustainable development. Councils are expected to develop a strategic ‘whole-of- council’ approach toward the recognition of ecologically sustainable development and now have specific obligations to consult with the community and environmental groups (Hansard 1997).23 The shift to self-regulation underpins the agency policy of support for corporate management and reporting. According to Dr Neil Shepherd, Director-General of the NSW EPA: The NSW EPA is actively encouraging corporate environmental reporting in NSW which it sees as a key initiative that will benefit companies, public sector agencies and the community. The NSW EPA anticipates major environmental gains will be made as organisations set targets for improvement as part of the reporting process (Shepherd 1998, p. 15). Recent NSW EPA social learning initiatives designed to develop community and industry environmental responsibility include the Lead Education Program to provide courses to industry health professionals and community organisations (EIA 1997a) and the establishment of an industry education unit and training programs for local councils. Other initiatives include funding by the NSW Department of Education and Training for
23 The Second Reading speech in the NSW Legislative Assembly by the Hon. Ernie Page quoted in Hansard, 1997.
125 the development of workplace environmental training curriculum across all industrial sectors (Environmental Manager 1997c). 4.3.0 Critique of the second period of environmental reform: introduction Each of these policy measures traced out by the history of the EHCA (NSW) 1985 as characterising the second period of policy reform is designed to foster the more efficient operation of the market to achieve public ends. While not dependent wholly upon the conversion of natural resources to private property, they do stress the market incentive and thus reflect the ‘economic liberal’ or ‘economic rationalist’ perspective on environmental policy reform (Dryzek 1997, p. 102). The fate of the EHCA (NSW) 1985 in this second period of reform highlights the watershed in policy separating the two eras. While the new policy priorities of the second period impact on the EHCA (NSW) 1985 in the form of amendments to the EHCA (NSW) 1985 itself, more ‘significant’ legislation enshrining the new priorities of trimmed state functions have pushed it aside. The contaminated site function has been largely hived off. The EHCA (NSW) 1985 was not included in the ensemble of POEOA legislation and thus stands outside the new emphasis on load-based licensing and economic incentives. Chemicals management has been marginalised. Even the Pesticides Act 1978, the subject of so much criticism for twenty years (EDO 1997c), has gone unamended. The implementation of these new policies has been heralded as ‘one of the most significant phases of environmental and planning law reform in over two decades’ (NELA 1997, p. 5). Such descriptions of the new legislation in NSW are misleading and the new reforms themselves are already associated with deficits. These relate to the expanded state functions paradoxically associated with the devolution of state authority and difficulties involved in the shift to economic policy tools; to persistent bureaucratic territoriality and corporate capture; and to equity considerations, as embedded values and commitments continue to prioritise corporate interests to the detriment to community environments. The further paradox is that the need for the diminished state to address community obligations concerning equity and to increase social choice in the name of efficient decision-making has resulted in the emergence of new arenas for social
126 contestation. Hence not only do the new reforms leave unresolved some of the deficits of the first period, but they have created fresh insufficiencies in terms of administration, implementation and legitimacy deficits. 4.3.1 The background: federal deregulation The federal context to this NSW response to the second phase of the environmental challenge has been influenced by the economic rationalism of decision-makers (Kelly 1992; Pusey 1991). Accordingly, the national climate has been one of a ‘waning Federal resolve’ on the benefits of state intervention to protect the environment
(Eckersley 1996, p. 94). Environmental organisations argue that there is little evidence that the federal government is prepared to intervene in the name of sustainable development and economy-environment synergy by way of either fiscal or legislative initiatives (Environmental Manager 1996d; Environmental Manager 1996e). So while the original expectation was that the IGAE would be a milestone in establishing precautionary environmental policy in Australia (Harding and Fisher 1993, p. 10), it now appears that its prime function is to lessen the potential for disputes by coordination between different levels of government (Christoff 1994, p. 366; Eckersley 1996, p. 95). It is not legally binding and nor are the guiding policies it provides for, and thus represents a significant retreat by the Commonwealth (Farrier 1993, p. 2). At best, given that ‘Ministerial councils generally work on a consensus basis (and any member can exercise a power of veto)’, it is doubtful whether the moves towards national environmental standards through voluntary measures will act to provide better environmental protection in this country (Clark 1995, p. 233). There has been no strong policing at the federal level of the devolvement to the States. Although the IGAE and associated structures have resulted in legislation across Australia incorporating ecologically sustainable development principles, such legislation has been largely of symbolic value only (Stein and Mahoney 1997). In this context, a uniform approach is likely to be towards the lowest common denominator (Farrier 1993, p. 2). The reluctance of the Federal leadership over the recent decade to intervene against industry and on behalf of the environment is most clearly demonstrated in the debate over greenhouse emissions before the Kyoto Conference in 1997.
127 From the start, we have made it plain that Australia would not accept an unfair share of the burden. We have rejected and will continue to reject mandatory uniform targets, which advantage many developed countries to the distinct disadvantage of countries such as Australia. We have also made it plain that we are not prepared to see Australian jobs sacrificed and efficient Australian industries, particularly in the resources sector, robbed of their hard-earned, competitive advantage (Prime Minister Howard, 20 November 1997).24 Federal determination to devolve responsibility and reluctance to regulate counter to the interests of industry can be demonstrated specifically in relation to the management of toxic chemicals. To enable national co-ordination of pesticide management, the responsibility for registration and control of labelling and packaging of pesticides was codified by the passage of identical legislation for all States mirroring the Commonwealth Agricultural and Veterinary Chemicals Code Act 1994 (the Agvet Code). Under the Commonwealth Agvet Code, these responsibilities were passed to the National Registration Authority for Agricultural and Veterinary Chemicals (NRA) in order to strengthen the review and assessment procedures for pesticides in Australia. The NRA has had a limited role in the development of national pesticides risk reduction strategies and policy, and the NRA chairman, Professor Ben Selinger, has blamed the State agencies for their inactivity (Environmental Manager 1996b). The reality is that in 1994 more than 400 existing pesticides remained registered under outdated standards (Short 1994, p. 184). The notable lack of resources available for the review of existing pesticides is evidence of lack of federal will.25 In 1994, Australia was one of only three OECD countries that had not commenced a program to review agricultural pesticides26, and in 1995, after finally banning organochlorine pesticides for termite control, gave a two-year extension to the Northern Territory (these compounds having been banned in Europe and many other countries in the 1970s-1980s) (Environmental Advocates 1998). The NICNAS scheme has suffered similar problems
24 Statement by the Prime Minister of Australia the Hon. John Howard MP, ‘Safeguarding the Future: Australia’s Response to Climate Change’, 20 November 1997, reported by Woodford, SMH, 21 November 1997. 25 The major function of the NRA is to register new agvet chemicals, and it is 100% funded through industry cost recovery. A 1994 report prepared by the management consultants Ernst and Young made recommendations that a ceiling of no more than 10% of total resources was to be spent on the review of existing pesticides (in a situation of full cost recovery) (Ernst and Young 1993, quoted in Short 1994, p. 232). 26 Dr Kate Short quoted in Environmental Manager 1996a.
128 of lack of will and resources. Thus the review of industrial chemicals for the NICNAS scheme, which commenced in 1990, had only reviewed 2 chemicals from a list of 35,000 by 1994, with the expectations of reviewing 4-5 each year (Short 1994, p.231). The attempt at the federal level to generate trust through the NPI has also opened up areas of social contestation. The management of agricultural chemicals raises questions concerning the absence of agricultural and veterinary chemicals from the NPI (Environmental Manager 1997b). Many community groups abandoned the consultations for the NPI.27 Various points of disagreement and eventually departure included the exclusion by the NEPC of the reporting of transfers to landfill, sewerage and mine tailing dams, the comparatively few chemicals on the list, and the ‘weak’ NEPM associated with the NPI. The NEPM specifically forbids the use of fines and gives the States and the Territories the power to decide on the comparative need for
‘commercial-in-confidence’ and ‘community right-to-know’ (National Toxics Network 1997). 4.3.2 Devolution of authority and expanded state functions The NSW EPA has moved to divest itself of environmental responsibility to the market, to the local government sector, to industry and to the community, before either industry or the public is sufficiently aware or skilled enough to shoulder these new responsibilities. An extended capacity for policing and support is also required for the complex and technical assessment and administrative procedures associated with load- based licensing. Its own reports indicate as yet a less than successful result from self-regulation as a strategy: …environmental policies and environmental management in NSW companies remain, for the most part, at a fairly low level of development. For example, less than half of the organisations surveyed (45%) had any staff with specific responsibilities for managing environmental issues. Only 31% of companies surveyed were said to have provided staff members with environmental training. Only 37% had sought information on ways of improving environmental performance (NSW EPA 1997a, p. 44).
27 These groups argued that the 50 chemicals to be included is not adequate (in comparison to the USA program which requires reporting on 600 chemicals), and that the NEPM process is weakened by some States having included in their various NEPC Acts the ability to disallow NEPMs. (National Toxics Network 1997).
129 The integration of the POEOA 1997 and IDA 1997 reforms makes for new challenges, as ‘the so-called ‘one-stop shop’ is complex and allows insufficient time for well- considered decisions by other regulatory bodies involved in the approval process’ (EDO 1997a). Other issues include the little assistance in funding for the council in order to carry out their significantly increased responsibilities in the licensing area (aside from water licence fees and similar funding sources)28, the possibility that industry may move to less regulated areas, and the fragmented response to diffuse sources of pollution (Johnson 1997, p. 5). The new Local Government Amendment (ESD) Act also entails administrative difficulties. The implementation of ecologically sustainable development in such a ‘whole-of-operation’ approach is untried and untested in Australia and gives local government a range of new responsibilities, of often-uncertain dimensions. Problems with the load-based licensing scheme in NSW are arising as a result of the large administration fee, a fixed entity separate from the pollution load charge.29 The large administrative fee reflects the expanded technical functions created for the agency by the concept of load-based licensing. The ‘overload’ caused the delayed implementation of the legislation. For instance, ‘technical problems’ associated with the determining of the load-based fees for diffuse dust have been quoted as the reason behind the further delay in implementing load-based licensing for mines (Environmental Manager 1998b, p. 4).30 In analysing the deregulation debate, Ayres and Braithwaite argue that ‘conservative accomplishments’ such as privatisation often bring about the need for re- regulation (Ayres and Braithwaite 1992, p. 11). The history of the EHCA (NSW) 1985 and chemicals control in NSW supports this argument. Given that the devolution of responsibility is to a local government sector in NSW that has shown little capability heretofore to adopt Local Agenda 21 (Whittaker 1997, pp. 23-31), legislated support is
28 Implications for local councils include responsibilities in auditing, issuing of orders and penalty orders for water, air and noise activities, increased expertise among council officers to monitor and enforce potentially polluting activities and administrative structures within councils to deal with the increased responsibilities (EDO 1997b). 29 According to the NSW Farmers Federation, for a six hundred sow piggery, a previous licence fee of $190.00 would now become $19,000.00 (Environment Business 1998b) 30 According to the NSW EPA’s Manager of Regulatory Innovation (Environmental Manager 1998c, p. 4).
130 required31 Measures need to be implemented across the 170 local councils in NSW, who are now effectively regulatory bodies, to ensure uniform standards and prevent exploitation by industry (EDO 1997b). Regulatory structures are required to deal with cumulative pollution, which may either originate or have impacts in more than one local government area. 4.3.3 Co-operation, bureaucratic territoriality and corporate capture
In the description of the first phase of policy reform, bureaucratic territoriality and corporate capture have already been identified in relation to the failure of the EHCA (NSW) 1985 as effective policy reform. Its history in this second phase suggests that corporate capture cannot be attributed solely to the institutional malaise of the ‘overloaded state’. The regulatory capture of NSW Agriculture (previously the NSW Department of Agriculture) by the agricultural industry sector has persisted well into the second period, despite the public sector reforms. Indeed, the administration of the Pesticides Act 1978 was transferred from NSW Agriculture to the NSW EPA in order to ‘ remove the perceived poacher/ gamekeeper conflict whereby NSW Agriculture both regulates pesticide use and advises and supports the primary users’ (NSW EPA 1995a, p. 3). Despite the transfer of responsibility away from NSW Agriculture, there is little reason to expect that the current policy of co-operation can prevent regulatory or corporate capture occurring in the future. As Ayres and Braithwaite point out, ‘the very conditions that foster the evolution of co-operation are also the conditions that promote the evolution of capture and indeed corruption’ (Ayres and Braithwaite 1992, p. 55). Reflecting the emphasis placed on co-operation between state agency and industry, NSW Agriculture has maintained its strong link to its client base of farmers and agricultural chemicals companies through an advisory and support role to the farmers on pesticides. This link is indicated by the industry bias in the composition of the consultative group selected to review the Pesticides Regulation 1995: Aerial Agricultural Association of Australia; Australian Environmental Pest Managers Association; Australian Chemical Industry Council; Australian Cotton Foundation; AVCARE; Flemington Market Authority; Greenpeace; NSW Agriculture; NSW Health;
31 A recent study indicated that 27% of councils in NSW show no commitment to local sustainability strategies. The study argued that neither State nor federal governments have provided support in terms of finance and direction, and have not adequately integrated environmental initiatives into other programs concerning local council responsibilities (Whittaker 1997, pp. 23-31).
131 NSW Farmers Association; Total Environment Centre; Department of Land and Water Conservation and the Workcover Authority of NSW (NSW EPA 1995b, p. 1). In 1997, recognition of the potential risks from the use of pesticides and the need to be consistent with the principles of sustainable development prompted a review of pesticide legislation in NSW for the first time since the passing of the Pesticides Act nearly twenty years ago. The NSW EPA raised a series of proposals including guidelines for taking action on pesticide misuse and prevention and clean-up guidelines (NSW EPA 1997d). A 1997 EDO review of the Pesticides Act 1978 protested at the exclusion of pesticides from the supposed ‘integrated’ pollution policy in NSW; at the failure of the EPA review to deal ‘creatively’ with the ‘wholly inadequate’ licensing under the Pesticides Act, and at community right-to-know aspects of pesticides use
(EDO 1997c). However, at the time of writing, the Pesticides Act (NSW) 1978 remains unamended, and the subject of public complaint.32 Hence, through lack of will to confront such a policy community, the new pollution laws still do not address a situation where urban and agricultural pesticides are the greatest non-point source of pollution (EDO 1997c). According to recent reports, the environmental management of agricultural chemicals remains fragmented and there is little to indicate that regulatory programs provide safe and effective use of farm chemicals (Agriculture and Resource Management Council of Australia and New Zealand 1998; NSW Agriculture 1998). Thus structural resistance to the implementation of a ‘cradle to grave’ policing of toxic chemicals persists, and there has been no further attempt after the EHCA (NSW) 1985 to improve umbrella control of chemicals. Nor has there been any co- ordinated attempt to deal with the issues associated with chemical mixtures, and the possible additive and synergistic effects of contaminants. Again, the new pollution legislation, which has effectively replaced the EHCA (NSW) 1985, is unable to deal with such pollution problems as run-off of sulphuric acid and heavy metal pollution from acid sulphate soils (Environment Business 1998d, p. 13).
32 In 1998, a delegation from rural areas of NSW and Queensland met with government Ministers, Shadow Ministers and advisors to discuss recent accidents with pesticides such as ‘reports of buses being sprayed, fish kills and contamination of rainwater tanks (TEC 1998).
132 4.3.4 Considerations of equity and trust The state in a representative democracy may devolve responsibility for action to the community, but there is a social expectation that it will still intervene where appropriate in the general interest in the name of equity and by virtue of the trust it is expected to maintain. In this phase of the environmental challenge, characterised by uncertainty, co-operative management of the environment with industry, and with the community as a whole, cannot be efficacious without trust (Matten 1996a, p. 133). As McDonell suggests: ..the questions of trust, dependency and doubt press more urgently than before on everyday worlds – the worlds of economic competition, environmental conflict, technoscientific disputation, ethnic suspicion (McDonell 1997, p. 853). The best strategy for environmental protection, as with any ‘responsive regulation’ is to set it appropriately in the context of its ‘regulatory culture and history’ (Ayres and Braithwaite 1992, p. 5). As discussed, the Australian state has a long history of interventionism. Given that Australians are typically distrustful of their elected representatives, this intervention has historically been by way of bureaucratic- administrative arrangements (Pusey 1988, p. 42). Since the social context is one where community expectations are that the bureaucratic arm of the state should stand between them and exploitation by market forces, or between them and scientific uncertainty concerning risk, policies to dismantle the state have seeded contestation. Hence more distrust has been added to a situation where public interest groups are already cynical of the ability of regulators to break the nexus between industry and the state.33 The EHCA (NSW) 1985 Amendment 1987, which increased secrecy provisions, and allowed for industry to self-regulate, was seen by environmental associations as justification for removing resources from pollution control (Hansard 1987b). Public fear was also expressed that profit-oriented private operators would not address waste reduction goals, and that they would be more inclined to cut corners in environmental
33 Marking the public frustration at failed attempts at reform of agricultural chemicals spanning the two decades of this study, in May 1998, the TEC advertised the formation of a coalition of rural groups in NSW and Queensland, to ‘fight for changes in pesticide laws and to tackle the cotton industry’ (Angel 1998). The coalition requested the Carr government to honour its commitment to the revision of pesticide law as ‘part of its anti-pollution plans. It raised issues such as the need for third party rights to initiate prosecution under the Pesticide Act, mandatory training for users of pesticides, mandatory reporting of pesticide use and benchmarks for pesticide risk reduction strategies (TEC 1998).
133 management. The policy response was to ensure that putrescible landfills are maintained by the public sector, which includes local councils (NSW EPA 1995c, p. 5). The values and commitments embedded in the ‘rationalised’ and ‘voluntaristic’ policies that have replaced the ‘command and control’ period of regulation, of which the implementation of the EHCA (NSW) 1985 was an example, have prompted questions of equity and fairness. These values and commitments favour economic interests and development concerns, rather than the community and the environment. For example, PROTEA 1991, the core instrument of the second period of reform, provides for ‘having regard to the need to maintain ecologically sustainable development’34, which it defines as ‘requiring the effective integration of economic and environmental processes’.35 In another instance, the ecologically sustainable development principles as set out in the objectives of PROTEA 1991 and in other legislation do not include public participation rights, although public participation is a Rio Principle (Principle 10) (Stein and Moroney 1997). The history of the EHCA (NSW) 1985 itself reflects a lessening of legislated right to scrutiny, the 1987 amendments having weakened the disclosure principles of the legislation (Hansard 1987a, p. 14, 923; Hansard 1987b, p. 16,876). The NSW EPA still praises pollution control schemes through licensing as ‘a generally effective and flexible way of controlling individual activities that impact on the environment or have potential to do so’ (NSW EPA 1998c). Hence disappointed expectations of reform geared to pollution prevention rather than control have led to public interest groups challenging the elected decision-makers. During the consultation period leading up to its enactment, the POEO Bill was promoted as marking a profound attitudinal and regulatory shift towards ‘cleaner production, integrated environmental management and ecologically sustainable development’ (Item 1, Appendix C) and towards processes of policy construction entailing an ‘unprecedented program of broad consultation on legislation’ (Item 3, Appendix C). However, as the well-known environmental lawyer, Dr Gerry Bates, said: …there was a general feeling that the Bill was underpinned by a need to introduce administrative convenience rather than a strong attempt to try to reduce and ultimately prevent pollution; the driving force was
34 s 6(1) 35 s 6(2)
134 felt to be administrative convenience rather than pollution prevention (Bates 1997, p. 1). Thus the linking of the pollution licence provisions of POEOA 1997 with the planning and development provisions of the IDA 1997 was to avoid ‘unnecessary delays’ or ‘bureaucratic bottlenecks’, in planning and licensing, and was promoted as ‘striking a balance between openness and efficiency’ (NSW EPA 1996c, p. 18). Public participation was to be achieved in the granting of environment protection licences ‘without unnecessary, costly and time-consuming duplication’ (NSW EPA 1998). In an ‘all-round attack’ on the ‘integrated’ planning change, flagged by the POEOA and the Integrated Development legislation, nine bodies, ranging from environmentalist, to industry, to unions, to local councils and welfare groups, grouped together to protest at proposals ‘taking community participation in planning back twenty years’ (Totaro 1997, p. 5). In the course of the controversy over the POEOA legislation, it was held up as a major instance of ‘greenwash’ and as ‘disappointing in its lack of vision and its failure to provide adequate public participation-it is definitely not best practice’ (Connor 1997, p. 2). The Carr Government in NSW was accused of bureaucratic in-fighting and political expediency, and of watering down its ‘green’ perspective.36 Hence original versions of the Integrated Development Bill limiting public participation were reversed, and amendments were made to the POEOA legislation. The POEOA and IDA legislation eventually passed through Parliament in very controversial circumstances. 37 Environment groups argued that the Anti- Pollution Plans provided by the Labor Government when it came to power in NSW in 1995 had promised the reduction and prevention of pollution and that POEOA 1997 did not provide for any of the objectives of these plans (EDO 1998c, p. 4).38
36 At the time, John Connor, Executive Officer, Nature Conservation Council, accused NSW Labor Party strategists of having decided that the 1999 election campaign in NSW will be won as a result of various NSW Government Departments such as Department of Urban Affairs and Planning (DUAP) reasserting control (Connor 1997, p. 1). DUAP is the agency responsible for the IDA. 37 The consultation period for POEOA saw the NSW EPA, by late 1997, having considered the issues raised in 233 submissions received from 40 seminars around the State, with councils, community groups and stakeholders (NSW EPA 1997c). The POEOA was finally passed through NSW Parliament in late 1997 with 24 amendments having been made to public access, accountability and participation provisions. 38 The IDA was passed in an even more controversial fashion. The President of the Local Government and Shires Associations, Peter Woods, for instance, warned that when community conflicts occurred, as he predicted they certainly would as a result of the passing of the legislation, ratepayers would be invited to direct their protests to the Members of Parliament who voted for the legislation (Environment Business 1997).
135 The amendments made to POEOA 1997 as a result of the controversy included a requirement that the three year licence renewals have to be advertised and that any public submissions made during the integrated development assessment process must be taken into account when issuing a licence. Any person may now initiate proceedings in connection with a breach of the legislation (Environment Business, 1997, p. 4). However, Australian Chambers of Manufactures representatives were said to be ‘pleased with the changes made’, welcoming the time limit now placed on licence applications and the ‘NSW Government’s steadfast refusal to include rights of appeal against licence provisions in the Bill’ (Environmental Manager 1997d, p. 5).39 Public reaction to the POEOA provision for PEPs illustrates the relationship between voluntary measures, perceived ‘untrustworthiness’ of the regulator, and the increased arena for social contestation, again lending support to the argument that deregulation brings with it the need for re-regulation (Ayres and Braithwaite 1992). Environmentalists and public interest groups have expressed scepticism at the accountability provisions (EDO 1997b; Johnson 1997, p. 8), and industry has argued that the PEPs could set the scene for the tying of point sources to ambient standards, thus potentially allowing for ‘overstrong enforcement measures’ (Speers 1997, p. 3). De-regulation provokes the need for further regulation to lessen social contestation concerning accountability provisions and inequities of power. 40 Thus attempts to mediate environmental disputes in lieu of regulation (NSW EPA 1994b, p. 27) have also provoked contestation. Such forums using selected representation are vulnerable to
39 The POEOA does not change the previous limits on rights of appeal against licensing decisions, and does not provide third party rights of appeal (NSW EPA 1998). 40 In a current example of public reaction to further attempts to deregulate, public interest groups are strongly resisting the Subordinate Legislation Amendment (Regulatory Flexibility) Bill 1998, currently before the NSW Parliament. They are concerned that the terms of the Bill are contrary to ‘democratic norms of fairness, accountability and equality’ and have ‘the potential to completely emasculate regulatory standards in all areas of regulation, including health, safety and the environment (EDO 1998b). According to the EDO, this Bill could place a wide range of regulation at risk – for example, detailed regulatory requirements for Environmental Impact Statements, or for the public advertisement of development applications. It could threaten minimum standards for the storage and handling of dangerous goods, or the building industry. A similar Bill was introduced into the Canadian Parliament in 1994. It received extremely negative comment in the media, and was slammed in a Joint Parliamentary Committee Report. The Canadian Bill did not recover from these comments, and subsequently lapsed (EDO 1998b).
136 bias, are perceived as politically motivated, and do not address inequities of power (National Toxics Network 1998, p.1).41 The expectation that community obligations will be met under the new wave of reform by the voluntary disclosure of industry as a result of either codes of practice42, or by corporate environmental reporting and education initiatives, faces major problems in its fulfillment. Codes of practice such as the ACIC Code of Practice for Community Right-to-Know can evade legal liability by restricting their function to statements of intent, rather than standards (Beder 1996, p. 238). Similarly, while the ACIC package labels itself ‘ a public commitment’ and promises that performance indicators will be published each year, it is only ‘wherever possible’ that trends in performance indicators and audits will be discussed with the community (ACIC 1993, p. 3). Whilst environmental reporting is on the increase in Australia, most external organisational reporting is still of a financial nature, and does not include the social aspects of performance such as environmental obligations (Deegan 1998, p. 253). Neither is environmental education in NSW ‘ adequately developed or structured to meet the needs of educators and the community’ (NSW EPA 1996f, p. 28). Thus partnership agreements and voluntary agreements being supported by the current NSW Government fall short in providing for accountability and the generation of public trust. 4.4.0 Results of the second period of environmental reform Following the EHCA (NSW) 1985 into the second period of environmental reform leads the case study away from the scientific assessment of risk and the attendant implication that governments should have the right to obtain information from industry on chemicals. This shift reflects a new perspective on the role of the state. Driven by the politics of neo-liberalism, the state agency is caught between the principle of co- operation with industry and the growing recognition of the need to provide public access to information in order to improve the quality of decision-making and to defray a wide range of costs (Harding 1998, p. 111). In this period, both sides of the political fence have taken up public consultation, ‘the sophisticated political strategists of the right’ also seeing the need to work with public interest groups (Ayres and Braithwaite
41 The disputes referred to are the conflicts at Gunnedah, NSW, concerning the use of chemicals by the cotton industry and at Billinudgel, NSW, concerning the overspraying of school routes with banana chemicals (National Toxics Network 1998, p.1).
137 1992, p. 10). At the same time, the political regime has demonstrated a commitment to deregulation and to increasing social choice through making information available to the community. The trend has been away from the use of legislated rights to public participation towards the new forms of partnership agreements, where government and community work together. Modes of participation through partnership include co- management and co-regulation (NSW Cabinet 1998, pp. 15-16). Influences upon the EHCA (NSW) 1985, guiding its fate in this second period, include strong and avowed links between the state, resources and development industries and wider economic interests, occurring at both federal and State level. As in the previous period, the demands of the economy remain dominant. However, this last decade has seen the continuance of state/ industry alliances accompanied by the dismantling of the corporatist state. Thus the policy responses of the second phase of the environmental challenge see the EHCA (NSW) 1985 subsumed into environmental policy influenced by an increasing market ‘rationalisation’ of administration and regulation. The fate of the EHCA (NSW) 1985 has mirrored the overall shift towards self-regulation, privatisation and the use of economic incentives as policy tools, below an elevated discourse of sustainable development. In line with this trend, increased local government responsibilities, institutional transparency, community consultation and mediation have replaced regulatory instruments such as the HCAC of the corporatist model, as the means of measuring local concerns and enabling public participation. Hence the new era of response to the challenges of the second phase shows ecologically sustainable development included in the policy discourse, but accompanied by an emphasis on a shift in environmental responsibility away from the central state. Industry, the community and local government are to bear the main brunt of the national commitments to Agenda 21. In this period, the EHCA (NSW) 1985 is marginalised as an outdated and inefficient piece of legislation and subsumed under, first, PROTEA 1991, and then POEOA 1997. However, examination of the regulatory and political context indicates
42 An example is the ACIC Code of Practice for Community Right-to-Know, which defines the performance, practices of members in relation to community-right-to-know. Seven other codes of practice have been formulated as part of the ACIC Responsible Care package (ACIC 1993).
138 that reference to the efficiencies of the market have changed but not lifted the challenges and burdens that the environmental problematic poses for the democratic capitalist state. In this implementation, administrative and legitimacy deficits are now visible as a result of the new era of reform in NSW. 4.4.1 Legitimacy and administrative deficits The case study is set in NSW, but the history of the EHCA (NSW) 1985 in this second phase shows deficits sourced at both federal and State level. This chapter has argued that at the federal level a lack of political steering capacity developed due to the traditional influence of industry and resources and development interests, and an overriding political commitment to the goals of deregulation and devolution. Adequate policing structures and resourcing strategies have not been established·43, with the result that implementation deficits are developing in association with public participation measures such as the NPI. For a democratic government to have legitimacy and public trust it must be seen to be sufficiently equitable, fair and accountable. Hence lack of trust emanates from the federal level, expressed in lack of faith in the IGAE and a weak commitment to sustainable development at the State level. Indeed, federal/ State division of responsibility has remained another area of problem displacement. The differential interpretation of the NEPC/ NEPM discourse has only accentuated this tendency, and makes it less likely that a uniform and planned approach will be achieved. In the context of the waning Federal commitment, and in contrast to initial expectations, the IGAE can now be assessed as contributing to implementation deficits at the State level. Voluntary measures and frameworks for dispute resolution between State and federal Government have not provided the structural support needed to facilitate co-ordination across Government Departments and between State and local government. The context of the case study in this period in NSW is one where administrative and implementation deficits of the first era of environmental policy reform remain unsolved and are even exacerbated by the second. The aspirations for the integrated, ‘cradle to grave’ approach modelled by the EHCA (NSW) 1985 has disappeared from
43 Comment by Simon Molesworth in the President’s Address to the Environment Institute of Australia Newsletter, August 1998 (EIA 1998).
139 the policy discourse. Agricultural, workplace and other functional groups of chemicals remain regulated in their compartmentalised arenas. Corporate capture remains an issue as the effects of bureaucratic territoriality and ‘agency compartmentalisation’ on toxic and hazardous chemical management persists. As with the first phase, questions concerning the registration, assessment and co-ordinated management of toxic chemicals at federal and State levels remain unsolved by the new co-operative, voluntary and cost-return strategies. Further indication that market-based measures cannot solve territorial issues is the lack of coordination and rivalry between the NSW EPA and the DUAP, evident in the less than successful integration of the IDA and the POEOA legislation. The concept of ‘integrated legislation’ in this case referred more to administrative simplicity than to a cross-media pollution prevention program. Not only do administrative deficits remain from the first phase, but also new implementation and management problems have emerged. On the one hand there has been a dismantling of the state apparatus. But on the other hand there has been a contradictory increase in demands upon the state, as expansions of function and expertise are required for the assessment of environmental costs and the development of economic policy tools such as load-based licensing. The results of such functional challenges are evident, for instance, in the delayed implementation of the Load-Based Licensing Act, the accompanying descriptions of government ‘overload’, and its large administration fee. The emphasis on voluntary agreements with industry and the devolution of responsibility to local government promise further administration deficits. The underresourced skills base of both local government and industry in relation to environmental management has raised questions concerning adequacy of planning, research and training. An associated issue is the potential for inconsistency between local councils, with their range of new responsibilities, which are of uncertain dimensions. The issues of new responsibility for pollution monitoring are compounded as a result of the Local Government Amendment (ESD) Act. This means that councils are now accountable across the range of their activities, with implications for environmental reporting and planning. A series of complex new demands impacts on the NSW EPA and local councils in relation to the co-regulation and privatisation provisions of the contaminated sites
140 legislation and the complex ‘one-stop shop’ provisions in the IDA/ POEOA legislation. For example, the private accreditation scheme is likely to be difficult to administer, as it is supposedly to be regulated by professional associations, with attendant limitations on resources and expertise. Likely new areas of responsibility for the state agency include accreditation and education to avoid further administrative deficits and the re-regulation required to establish minimum standards across councils and to provide more administrative support for co-ordination across councils. With contaminated sites, having allowed pollution to continue, the NSW EPA then leaves it up to the private sector to take over remediation. Issues associated with the process of devolution have resulted in legitimacy concerns, increasing the challenge posed by the environmental problematic to representative democracy. Thus the introduction of PEPs raise, but do not solve, the controversial issue of the setting of standards for often unknown and cumulative effects of pollution. The long and controversial consultation period and the lengthy gap between the passing of PROTEA 1991 and POEOA 1997, and the expressed lack of trust in privatisation and in the voluntary measures by both industry and the public interest groups, are indications of legitimacy problems. They bring into focus the issues posed for the state as, under the influence of the neo-liberal program, it attempts to devolve environmental responsibilities to industry, the community and to local government. It must provide a basis for trust and for social choice to remain legitimate, yet at the same time deregulate and devolve. The challenge of the environmental problematic in this second period of change in NSW is that the provision of ‘community-right-to-know’ and institutional transparency measures outside the domain of representative democracy, without adequate means of community participation and redress, is expanding the arena of social contestation and thus sharpening legitimacy problems for representative democracy. Similar legitimacy gaps are also likely to arise concerning State of the Environment reporting, as it is a largely non-participatory form of communication, uses technical data and language and can be used to justify selected environmental policy instruments and perspectives. The requirements of the Load- Based Licensing Act and the NPI in relation to the extent and the accessibility of data are another example of the new processes expanding areas of contestation.
141 The problem for the state, and its standing with the electorate, remains the potential for rationalisation and devolution measures to be ‘hijacked’ in the name of efficiency and economic interests with the result that the ‘review of legislation to reduce its effect on competition removes important public safeguards, including public participation’ (Stein and Mahoney 1997, p. 9). The process of devolution to the unprepared and unresourced local government area has also aroused suspicion as to the underlying values and commitments, and is seen by some as an abrogation of responsibility by the NSW EPA. Legislating for ecologically sustainable development, as a result of the passing of the ESD Amendment to the Local Government Act, requires a whole-of-council approach to environmental management. It thus opens up an untested and complex area of management, which local councils must now administer and for which they are given few added resources. In the end, it is the local council that is most vulnerable to litigation over the new legislation. 4.5.0 Conclusion The second phase in the history of the EHCA (NSW) 1985 has traced the response in NSW to the second period of the environmental challenge. Effects of the shift away from corporatist governance include the breaking down of the centralised authority of regulatory science and the planned strategies for risk reduction of the centralised state, which guided the environmental management of the first period of the environmental problematic. Under the influence of the neo-liberal program, new and as yet poorly defined norms to be set by industry and the community are emerging. The events related in this chapter indicate that the shift away from state interventionism in NSW was justified on the grounds of the promise of more efficiently operating legislation, based in greater use of the markets, a lesser role for the government agency, and self- regulation in the name of a more entrepreneurial industry. Underscoring this rhetoric was the emphasis on self-control through self-awareness, decentralised and individual choice and the implementation of polluter-pays. However, examination of the response to the increasingly uncertain conditions of the environmental problematic in this phase leads to the conclusion that the neo- liberal program now being followed by the current political regime in NSW is in the process of creating further implementation and administrative deficits to those observed in the previous phase of corporatist governance. Not only does bureaucratic
142 compartmentalisation remain an issue, but more regulation and planning is required to encourage process-driven change for sustainable development and to deal with the complex issues associated with the valuing of environmental goods and the administration of local interests. Legitimation deficits are associated with the inability of the state, now increasingly devolving implementation responsibility, to follow through on environmental policy rhetoric; the movement to deregulation which includes removal of some legislated rights to public participation and the public perception that, in such conditions of uncertainty, equity, justice and fairness can only be ensured by the state and not the market. The history of the EHCA (NSW) 1985, and of chemicals control more generally, in their regulatory and political context reflect a political program whose agenda promotes self-regulation and rationalisation in order to avoid interference by the state. The deficits associated with these policies indicate that the transition from the welfare to the post-welfare state requires re-regulation and more state-led support, if sustainable development goals are to be achieved. The history of the EHCA (NSW) 1985 reflects the wider realm of environmental policymaking over this period. As with other countries and regions in the developed world, the priority in NSW has been the protection of industry from too much regulation, as the principles of eco-modernism and eco-efficiency have been espoused in the name of sustainable development (Welford 1997, p. 29). Lack of administrative capacity at each of the three tiers of government in Australia has resulted in economic policy tools not being adopted with efficacious results for process design (Eckersley 1996, pp. 101-106; Ramsey and Rowe 1995, pp. 71-77). Even with the waste reforms, the most successful area of reform of the current NSW Government44 , there are more innovative possibilities.45 The shift to market- based tools has been supported enthusiastically by industry, but with little regard for the
44 Successful waste initiatives include the increase in penalties for waste offenders; the more accurate definition of the components of the waste stream, and the commitment that NSW should achieve by the end of 2000 a 60% reduction in the waste target. Praise has come from environmentalist groups such as the TEC, FOE, and the EDO (EDO 1997b; Wainright 1995). 45 Reforms can be directly geared to the implementation of sustainable development through aiming at the whole economic system, instead of regulating a part of it (by treating all goods circulating in the economy as either products or waste). An example of such legislation as the Closed Substance Cycle and Waste Management Act (CCSCWMA) adopted by the German legislative institutions in 1994, which took up the broader plans of the European Union (Directive on Waste 91/ 156/ EEC) (Matten 1996a).
143 need for regulation in order to enforce commitments.46 The Business Council of Australia, for instance, has shown much enthusiasm for market mechanisms, but little comparative appreciation of the differing role of regulatory instruments (Ramsey and Rowe 1995, p. 107.) The situation in NSW is reflected in the other States. There, too, economic interests take the position that increased environmental standards reduce competitiveness, and they, too, are charged with not having made the prevention of pollution a central task, and of not encouraging ‘environment-enhancing, production- oriented technological change’ (Clark 1995, p. 245). Led by a federal government determined to remain committed to resource exploitation, there has been little recognition given to the fact that structural change can be facilitated by the use of market instruments, but when such charges as on effluents are introduced in tandem with resource taxes. Such policy initiatives have been lacking that could enable the active ‘delinking of economic growth from the consumption of ecologically significant resources, like energy and materials’ (Simonis 1994, p. 36). These observations are supported by several recent findings. Amongst other deficits, an OECD report has criticised the lack of integration in Australia of government policy with environmental policy, particularly as regards economic analysis and tax reforms and the reporting and monitoring of environmental performance (Environmental Manager 1998a). In another damning assessment, an Australian Government Industry Commission report on ecologically sustainable development found that the incorporation of ecologically sustainable development into policy in Australia has been ‘ad hoc, incomplete and tentative’, and that the objectives and achievements of many natural resource and environmental programs were ‘obscure’ with weakness in policy design exacerbated by poor implementation of policy (Environment Business 1998b, p. 3). In conclusion, the first phase of the environmental problematic examined in the previous chapter began with an observation that Whitlam’s Government of more than twenty years ago responded to the rise of the new environmentalism by developing traditional political strategies within the context of representative democracy. Whitlam,
46 In 1998, the Australian Productivity Commission was charged with investigating the implementation of ESD in Australia, with a brief including a focus on outcomes and outputs. The Productivity Commission is the Commonwealth Government’s principal advisory body on all aspects of microeconomic reform (Productivity Commission 1998).
144 along with other political leaders since, read correctly the public wish to break with tradition, but none has seen the extent to which this new politics of the environment encompasses the need for new management concepts and political and administrative institutions. The review of the EHCA (NSW) 1985 and chemicals control in this second period of the environmental challenge provides another illustration, two decades on in time, of the inability of the NSW state to reach beyond the established Australian political patterns and to deal effectively and equitably with the new politics of the environment (Brett 1994, pp. 15-17; Pusey 1988, p. 28). This chapter has shown that underpinning the policy shifts from the corporatist politics of the first period to the neo-liberal politics of the second, are changing perspectives on the role of the state, the bureaucracy and the democratic process. Under the neo-liberal program, the state is limited in deference to the market as a policy instrument, the bureaucracy is constrained to its role of adjusting the outcomes of the market to more equitable and politically acceptable outcomes and the democratic process becomes increasingly reliant on mechanisms for informed social choice, operating outside of, and around, rather than within, the realm of representative democracy. The next section of the thesis analyses in detail the responses to the first and second period of the environmental problematic, in respect of these three fundamental institutions of the state, the bureaucracy and the democratic process, from the perspective of the reform agenda of neo-liberalism and corporatism respectively, and in the light of the conditions set down by sustainability criteria.
145 SECTION C
TWO DECADES OF TOXIC CHEMICALS MANAGEMENT: SUSTAINABILITY AND POLICY FAILURE Chapter 5 The Overloaded State and the Politics of Corporatism: Analysis of the Corporatist Response to the Environmental Challenge …in an advanced industrial economy, interest organisations have the power to interfere with public-policy making in highly dysfunctional ways; hence, the need to ‘keep them out’. At the same time, however, such representative organisations are absolutely indispensable for public policy, because they have a monopoly of information relevant for public policy and, most important, a substantial measure of control over their respective constituencies. Therefore they must be made integral components of the mechanisms through which public policy is formed (Offe 1985a, p. 230).1 5.1.0 The EHCA (NSW) 1985 as a corporatist response The double-stranded critique in Chapter 3 revealed the EHCA (NSW) 1985 to be a failed response to the first phase of the environmental challenge. Based upon scientific risk assessment and regulation authorised by the interventionist state, it exemplified the pollution control policies of this period. The expectations that it was to be landmark reform of the environmental management of toxic chemicals in Australia and a showcase of democratic policy-making were not fulfilled. The terms of the Act were neither democratic nor socio-ecologically rational, though such claims were made on its behalf when implemented. Despite the accompanying rhetoric of ‘pollution prevention’, the informing values and primary commitments embedded in the Act were underpinned by the principles of international harmonisation and supported the priority of the corporatist state for economic expansion. The political context to this first wave of reform was the emergence of corporatism as a political program in Australia. This chapter analyses the democratic shortfall in the construction and content of the Act, and the administrative deficit evident in the failure to reform an inadequate existing system of controls, by reviewing the new demands placed upon the corporatist agenda by sustainability criteria. This failure of the liberal democratic state to reform the environmental regulation of toxic chemicals in NSW is explained in terms of the
1 This quotation is taken from an essay written by Offe in 1977, in relation to the Federal Republic of Germany (Editors note, Offe 1985a, p. 221).
146 characteristics of the corporatist reform agenda for the state, the bureaucracy and the democratic process. The analysis shows that while the corporatist agenda for these institutions is geared to address generic crisis tendencies of the advanced capitalist state, sustainability criteria raise new issues that the corporatist program must incorporate to avoid fresh deficits. 5.1.1 The EHCA (NSW) 1985 and the corporatist program for the state The neo-Marxist explanation for the increasing social unrest and demands of the 1960s and 1970s is relatively clean cut. By the 1970s, a conjuncture of systemic (or structural) and instrumental (or political) factors had prepared the way for social reform. The growth and centralisation of both the state and the economy of the system of liberal capitalism had co-incided with the political effects of rapid economic growth in the 1940s and 1950s. This led to the development of an increasingly powerful and educated middle class concerned more and more with non-economic or quality of life issues. The effect was a heightened potential for social alienation and of perceived state responsibility for the range of social ills. (Yeager 1991, pp. 307-309). The neo-Marxist theorists interpreted this ‘state failure’ in terms of institutional limits associated with late capitalism: …by protecting and guaranteeing the organisation of private property and by making the state in its quality as an interventionist and regulatory state financially depend on the unimpeded reproduction of this economic organisation, the state’s liberal constitutional organisation provides those societal actors whose interests cause the failure of global government strategies with the legal positions that enable them to resists and obstruct ‘rational policies’ (Offe 1996, p. 63). As argued in Chapter 2, corporatism rose to prominence as a political program in late capitalist countries in response to a perceived failure of the welfare state to deal with these increasingly complex demands. The main characteristics of the corporatist reform agenda have been set out in Chapter 2. In neo-Marxist terms, corporatism was a way of establishing more secure conditions for economic growth by means of a social partnership between organised capital, the state and
147 labour. The corporatist reform program was based on the premise that the state could compensate for these institutional limits of late capitalism by increasing the steering capacity of the state and transforming the pluralist system of representation to the ‘more tidy form of representation’, that of selected interest group representation (Loveday 1984, p. 49). Since state intervention for the purpose of development was a well- established tradition, the political context of the EHCA (NSW) 1985 was one that provided a fertile base for corporatism. By the late 1970s and early 1980s, the traditionally strong state in Australia had already: …secured considerable authority and relative autonomy in its relations with capital; taken a nation-building role; led rather than followed private enterprise in national economic development and secured high living standards for the wage and salary-earning majority of its population (Pusey 1988, p. 35). In Chapter 3, the Accord has been described as the major manifestation of the corporatist agenda in this country. As discussed in Chapter 2, the political conditions represented by the Accord were of the type generally termed ‘societal corporatism’ It preserves democratic practices and institutions beyond the mere honorific semblance, finds tolerable coexistence with party- political activism-however emasculated- elaborates a series of vertical v. structured functional associations with meaningful autonomous powers, relies largely on ideological consent and persuasion, and emphasises rather than represses workers’ industrial organisation (Newman 1981, p. 46). By the late-seventies it had became obvious that, of the new social issues, the most dramatic and radical shift in awareness was towards the environment, and pollution in particular (Yeager 1991, pp. 98-99). Corporatism was seen as the solution to this public disquiet, as it was to other social demands and manifestations of crisis. According to Gerritsen, ‘consensual corporatism’ was the form operating during the Hawke government. In a measure of the ‘partial’ nature of the corporatist political structure (Panitch 1980), the Hawke polity failed the meet the ‘strong’ corporatist criteria by not being a formal, compulsory tripartite collaboration. However, it was essentially about economic policy and was predicated upon a high degree of collaboration among voluntary groups (Gerritsen 1986, p. 50).
148 Thus the corporatist reform agenda explicated the problem with hazardous chemicals management in the early 1980s as a generic failure of the late capitalist state. Environmental policy reform, as with policy reform in other complex welfare areas, was seen to be necessary to address the contradiction between accumulation and legitimation. The need to quell public concern on the environment had to be balanced with continued economic growth. In the instance of NSW, as elsewhere, the corporatist reforms evolved in an attempt to address periods of economic and political crisis facing the late capitalist state, as it attempted to resolve, in the neo-Marxist sense, the contradictory demands made upon it. The EHCA (NSW) 1985 was created as social regulation to address the responsibility of the corporatist state for ensuring appropriate economic, social and political conditions and to ameliorate the negative effects of capitalist development on society. In this case, the negative effect was pollution due to toxic chemicals. Increased public concerns for the environment and pollution issues brought up at the local government level represented increased activity of the socio-cultural system and a reversal of the process of centralisation. The unpredictability, and even turmoil, associated with such social contestation, was not favoured by industry, which looked to the reliability of national regulatory policies (Yeager 1991), and to the stability of the corporatist structure. The state was pushed to control this disruption by the need for stable and predictable social relations if the demands of the capitalist political economy to foster accumulation were to be satisfied. In other words, the EHCA (NSW) 1985, as it tracks the response to the first era of environmental challenge, had both accumulation and legitimation functions. It reflected the reform agenda of a state that was ‘embedded in a contradictory set of social relationships’ (Weale 1992, p. 48), and highlights the expanded role assumed by the corporatist state in this first period, as it attempted to ensure accumulation, yet to avoid the coercion of society
149 by unbridled private interests. The history of chemicals control over this period reflects the improved steering functions and the increased capacity of the politico-administrative system of the corporatist state to design, monitor and scientifically assess, in the cause of fostering accumulation and legitimising its actions. The state actively intervened to instigate ‘umbrella’ reform in the form of the EHCA (NSW) 1985 and guided the design of the policy change, with the assistance of scientific and technical operations such as scientific risk assessment. Over this period, the state is shown as being compelled to involve itself in the accumulation process, but mystifying that process by making its involvement an administrative rather than a political process (O’Connor 1973, p. 6). So while the traditional links were maintained in NSW between planning authorities and development interests ensuring economic growth, state-owned ‘resources’, such as the state agency and the legislative body, constructed a regulatory arrangement, whose purpose it was to ensure mass loyalty to the state. Legitimation functions were achieved by proclaiming it as landmark, integrated legislation and by the establishing of its status as ‘living law’, involving the participatory consultation process. The secrecy provisions, the lack of public access to the assessment of unlisted chemicals, the low level set for fines, and the increase in industry representation on the HCAC indicate the influence of economic interests upon the terms of the Act and satisfied the accumulation function, while undercutting the legitimation one. The terms of the EHCA (NSW) 1985 reflected the reaching of a consensus aimed at reconciling the needs of future economic development with public concern with the environment. As well, the international harmonisation perceived as integral to the success of such legislation was in the interest of international corporate concerns. It lent legitimacy to those OECD governments cooperating to protect the developed world from the excesses of the chemicals industry, yet supported the concerns of the multinational corporate organisations by facilitating the trading of chemicals across international boundaries. The corporatist agenda for the state, as instanced in the case of NSW, aimed to alleviate the effects of public/ private realm warfare. Historically the period was one where the economic effects of land use, auto safety, interest rates
150 and unemployment were affecting the noncommodified realm. While economic growth was being sought, its environmental effects were becoming stark. O’Connor’s description for the US was apt also for NSW: ..outside the world of large labor associations, workers in community organisations, renter groups, consumer groups, environmental groups, and ascriptive groups of all kinds became involved in the struggle for ‘public values’ and higher real wages and/or income (O’Connor 1973, p. 94). In the instance of the case study, the externality of chemical pollution was bringing about a crisis tendency due to natural limits, or assimilative capacity. The attempts to control toxic chemicals reflected an escalation of this border warfare, as government intervention became increasingly necessary to rescue the drive for accumulation from suffering its own consequences. Further limits were being placed on the accumulation process by the product cycle mechanism that was impacting on the chemicals industry in this period, as with other branches of capitalist production. As previously described in Chapter 3, the chemical industry in the 1970s, faced with consumer resistance to mature products such as synthetics and needing new markets, was forced to exploit new needs (O’Connor 1973, p. 88). New chemicals, marketed freely across international boundaries, appeared to be the answer. The result in the economies steered by the interventionist state was the push for internationally harmonised, umbrella legislation such as the EHCA (NSW) 1985, and its counterparts in other capitalist countries. This form of legislation would not only set controls on the total ‘life-span’ of a toxic chemical, but in doing so would allow the expansion of the international chemical industry. The effect of international harmonisation on trade barriers would reduce the tendency to disorder in such an expansion. Importantly it would do this in a way acceptable to the environmentally concerned consumer. Thus this legislation was aimed at, on the one hand, contributing to better health, and lower environmental impact, and on the other, to increased trade, increased productivity, reduced losses in working hours, and technological improvements. Hence global and domestic market interests shaped its history. In NSW these interests were harnessed by the corporatist state.
151 More specifically, the EHCA (NSW) 1985 can be re-interpreted from the perspective of the elements composing the characteristic relationship between the modern capitalist state and the economy. The defining elements of this functional relationship are exclusion (accumulation enterprises have to be seen to be free from state control); maintenance (state intervention is necessary for capitalist enterprise to expand); dependency (the state needs more and more expansion of its capitalist processes to satisfy the increasing needs of its welfare system) and legitimation (the state needs to convey the image that it allows equal access in decision-making to the broad interests of society) (Offe 1975a, p. 125). The corporatist agenda was to strengthen the relationship between the state and the accumulation process by increasing the capacity of each of these elements. The long relationship between the state and capital in Australia was intensified by the support given to the business community by the Hawke Federal Government (Kelly 1992, pp. 64-65), but was concealed by the tripartite corporatist structures. The politico-administrative sub-system, comprised of the state agencies, bureaucracies, and the politicians, maintained an appearance of distance from industry. Initially the state supported the voluntary notification schemes such as the INS or the Chemsafe/ Petrasafe schemes to preempt the developing issues with toxic chemicals and was pushed into the more interventionist arena of legislation only by the failure of the INS. Individual business units were not invited to take part in the public consultations concerning the EHCB in 1984. Although communications were received by the SPCC and by the Minister from particular enterprises such as APM and Ciba-Geigy, ostensibly consultation was through industry associations such as the NACC and the AVCA. Industry lobbied the Minister pleading for amendments, but only when the Bill was tabled over recess. The dropping of the proposals for a compulsory insurance scheme as a result of Treasury intervention is another instance of this determination of the state agencies to preserve the appearance of distance from the accumulation process. In these ways, even though state intervention was the method selected to alleviate crisis tendency, the ‘functional illusion of free choice of democratic society’ was maintained (Harrington 1976, p. 312).
152 The principle of maintenance was very influential on the political context of the study. The NOHSC, the tripartite structure which took over the notification and assessment functions from the EHCA (NSW) 1985, was designed to foster economic growth through the harnessing of potentially disruptive elements in the name of occupational health and safety. Similarly the HCAC was an advisory body whose composition ensured relatively more influence to the state and to industry concerns than to other more potentially disruptive social forces. Moreover, the high numbers of state representatives ensured the state maintained control over industry. In the formulation of the legislation, the terms of the Act were constrained by alliances between the state and capital, so that economic growth could be facilitated within the political context of the EHCA (NSW) 1985. Hence came the close understanding apparent in the communication between the SPCC officers and industry and the amount of influence waged by industry over the terms of the Act. The difficulties faced at the time by the global chemicals market also influenced the course of events, being directly influential on the perceived need and capability of the state to initiate a compulsory notification and assessment scheme. So, the EHCA (NSW) 1985 was an example of the institutional limits placed on law by the state’s structural dependence on the economic concerns of industry. Only by supporting accumulation could the state fund such institutions of the interventionist state as the SPCC itself. Even then, the SPCC was reported in the study as being chronically short of staff and other funding. Hence the expectation of the SPCC that it would be able to take up the wide technical responsibility for the notification and assessment of unlisted chemicals would not have been possible without the use of internationally available data according to the principle of international harmonisation. Implicit in the strong communications received by the SPCC from APM, from Ciba-Geigy and from the NACC, and in the accepted flow of industry representatives to the Minister’s door concerning amendments when the Bill was tabled, was recognition of this dependency. The final element of the definition, legitimacy, was obtained by the state passing such legislation with the assistance of specialised environmental agencies in the face of obvious public concern at the effects of toxic chemicals; by its
153 conveying the image of equal access and participation in decision-making concerning the formulation of the legislation; by the provision of broad rights of standing in the legislation, and by its according with the established processes of representative democracy, such as tabling of legislation and debates in both Houses of Parliament. 5.1.2 The EHCA (NSW) 1985 and the corporatist program for the bureaucracy According to neo-Marxist crisis theory, establishing an effective system of regulatory control for toxic chemicals has implications in terms of social organisation that go beyond addressing a set of visible or physical externalities by means of restriction or regulation. The corporatist agenda is that a strong state is required to overcome the bureaucratic irrationality deriving from the structural relationship between the late capitalist state and the market economy. If labour power is to be treated like a commodity, the state must be supported by non- commodified institutions such as health and education. According to Offe, as these non-commodified institutions become increasingly politicised, they develop an independence from control by capitalist imperatives. They develop a life of their own. Offe argues that as they become ‘fully exempted from the commodity form’ with ‘their use-values no longer guided by the rationality of the market’, these self-determining institutions weaken and paralyse market behaviour (Offe 1984b, p. 265). The first period in the history of the EHCA (NSW) 1985 documents the 1970s trend towards the establishment of powerful state agencies for pollution control, expressing the need of the welfare states of the period to privatise the externalities of production by putting their costs back into industry. Thus, in NSW, the SPCC was established and given powers to collect fines and other fundings. The corporatist reform agenda in this instance looked to centralised control and scientific and technical capability to overcome irrational bureaucratic behaviour and bureaucratic paralysis. The unrealistic dreams of the SPCC that it should be the monitoring body for a national notification and assessment scheme would fall into this category of ‘irrational behaviour’. This ‘irrationality’ was controlled by the Hawke Government exercising its powers of centralised control
154 and bringing in the NOHSC and the tripartite Chemicals Standing Committee to control notification and assessment. The early life of the EHCA (NSW) 1985 was strongly influenced by the corporatist policy priorities of the federal government.2 That the SPCC saw itself as an autonomous representative of the state is demonstrated by their tabling of the EHCB over the recess, a decision criticised by both sides of the House. Controversy associated with its progress through the Parliament indicated the extent of opposition from sectors such as the rural constituencies and the agricultural chemicals industry, and the pressure from the ‘new politics’ of the environment impacting on industry. Yet the SPCC remained as the key player in the drafting and redrafting process. The suggestions for coordinated planning of toxic chemicals control reflected a politico-administrative system, expressing the rationalities both of the markets and of the administrative bureaucracies, attempting to regulate and integrate discrepancies through centralised agencies. The implementation of umbrella legislation accorded with a centralised role for the state agency. The SPCC perceived that it was appropriate that they dictate the terms of the negotiations resulting in the drafts of the EHCB and the previous communications with the NACC, well before they consulted with other interests. The SPCC was also convinced that it should have the role of decision- making over issues of commercial secrets. From the corporatist perspective, the ‘scientific’ status of the SPCC legitimated it to this role. The importance attached to the EHCA (NSW) 1985 was partly due to the fact that it marked a shift from public health to the more ‘scientific’ arena of industrial chemicals. Working within such an agenda, the SPCC naturally saw the uncertainty of chemicals regulation as a challenge to which it was suited. The institutionalisation of environmental protection characteristic of this period and the optimistic role given to regulatory science is also in accord with the reform agenda of the corporatist state for its bureaucratic arm. Controls, planning
2 One explanation for the move towards the strict discipline and the professional approach of the corporatist model in Australia at the time was that the Hawke government had learnt ‘lessons’ from the Whitlam era. As Gerritsen puts it, the agenda for the bureaucracy over this period in Australia was directed by an ‘adaptive-rational’ reaction to policies of the Whitlam era (Gerritsen 1986, p. 47-51).
155 and legislation were the nominated tools, based upon the expectation of the adequacy of finite standards and state-motivated mechanisms. The TFCTS (a body made up of state representatives) produced a formal report that typified the technical emphasis of the corporatist agenda. It saw the solution as a centralised program, co-ordinated and controlled according to internationally set standards. Scientific limits and ceilings were the established and accepted policy tools to be used with the suggested legislative reform. As described in Chapter 3, the local reporting of the various chemicals ‘incidents’ led to a public perception that such accidents could be prevented in NSW by controls at a more centralised level. Whilst the TFCTS acknowledged that there were problems with the existing system, in the end the perceived solution, conceived by the corporatist agenda, was more of the same. It involved more testing, more assessment, more prescribing, more experts and more bureaucratic intervention. Selected experts, selected interest group representation and selected standards were the tenets of corporatist environmental management represented in this period of the EHCA (NSW) 1985 story. The corporatist ‘subgovernment’ of bureaucrat and expert worked to define the problem and to establish solutions concerning implementation of the legislation. As the regulatory context of the EHCA (NSW) 1985 indicated, the reliance on experts was already a marked feature of the Australian regulatory landscape in the early 1980s. As confirmed by SPCC officers, the specialised nature of toxic chemicals regulation further facilitated the development of the expert/ bureaucrat power base. In this way, the HCAC enabled the transference of the legal statute into technical and administrative considerations requiring the input of experts and bureaucrats. A further feature of corporatism driving the history of the legislation was the reform agenda designed to overcome administrative deficits caused by the structure/ function discrepancy of the politico-administrative sub-system. Offe points out that weaknesses in the accumulation process force the state to emphasise productive, as opposed to authoritative, modes of activity. This new form of state intervention involves the use of state resources in the construction of ‘products’ (Offe 1975a, pp. 128-140). The EHCA (NSW) 1985 was a product, that, if
156 moulded suitably, would support international corporate goals, as well as lend legitimacy to the state. In that sense, the construction of the EHCA (NSW) 1985 and its tacit mission to make NSW the centre for chemicals assessment in Australia was goal-directed action using the bureaucratic resources of the state. 5.1.3 The EHCA (NSW) 1985 and the corporatist program for the democratic process A variety of reasons contributed to the uncertainty associated with the politics of hazardous chemicals in this period. Public agitation against the alliances between the state and development interests, such as occurred with the Green Bans and the Lake Pedder disputes, described in Chapter 3, had been settled in the 1970s by a strong state in favour of development interests. But the context of the study was set by a shift in the political spectrum as environmental disputes ranged over wider ground and environmental risk associated with toxic chemicals was publicised by a series of accidents. At the same time, economic interests of the productive system looked to the needs of the international chemicals industry. The state was therefore moved to balance environmental and economic expectations by means of rational legal processes. As Yeager asserts (Yeager 1991, p. 217), the uncertainty associated with the regulation of toxic pollutants results from the fact that the politics of toxic chemical regulation: ‘are fundamentally inscribed in the basic structures and processes of political economy, where science, politics and law all intersect’. Furthermore, the state, as represented by the SPCC, had to deal with a situation where the ability to synthesise new chemicals far outstripped the ability of scientists to assess their effects. The shifting parameters of toxic chemicals control of the period (Nichols and Crawford 1983, p. 29) challenged the democratic government in that it was called upon to make decisions influential on the distribution of life chances which were based upon uncertain risk data and were vulnerable to social and political bias. The state attempted to dissipate this contestation with the assistance of the politics of corporatism, shortcircuiting the electoral processes and the implementation of the EHCA (NSW) 1985 as social regulation.
157 This period of chemicals control in NSW shows environmentalism being incorporated into the decision-making process of the structured corporatist state. Throughout the consultation period for the drafting of the EHCB, the state agency utilised the corporatist technique of incorporating potentially disruptive organisations representing emerging community concerns and new norms into state-sanctioned decision-making and mainstream debate. The consultation organised by the SPCC on the terms of the legislation singled out selective groups for representation. Characteristically, the peak bodies such as the NACC for industry, and the ACF, the CPP and the TEC for the environmental groups, were given official recognition in negotiations. Complaints from the disparate environmentalist groups that their exclusion from decision-making forced the formation of a large coalition in the form of the CPP is an indication of the selectivity of the process of representation. In this way, dissentient interest groups were kept in a situation of powerlessness by the closed and managed nature of the consultations (Loveday 1984, p. 49). The fragmented nature of environmentalism, manifest in the numbers of environmental organisations attempting to negotiate the terms of the EHCA (NSW) 1985, was one reason corporatist methods were used to achieve consensus (McEachern 1993, p. 176). The state agency selected and controlled the consultation process with, for instance, the environmentalist group not being permitted to meet with the SPCC at the same time as industry. The bargaining process concerning the Parliamentary amendments, which involved the industry associations negotiating with the Minister directly, is also characteristic of ‘private government’.3 Their apparent success in achieving suitably amended legislation underscores the characteristic domination of the corporatist political form by the industry association. Throughout the period of the consultation, the state gained control over both industry and other interest groups through the principles of hierarchical
3Streeck and Schmitter use the term ‘private government’ to refer to corporatist political forms. According to these writers, domination of corporatist structures by the industry association reflects the fact that the association, as a result of the emergence in Western societies of ‘systems of bargained interest accommodation and policy concentration’, now joins those traditional institutional bases of order in society of the community, the market, and the state (Streeck and Schmitter 1985, p. 3).
158 organisation and representational monopoly. Associations were consulted and institutionalised into the decision-making structures concerning the adoption and implementation of the policy rather than individual firms. Thus the NACC, the Chamber of Manufactures and the AVCA were taken as representing the views of industry as a whole. A stronger state at the federal level was ensured continued control over decision-making concerning the notification and assessment of chemicals through the establishment of such tripartite structures as the NOHSC and its Chemicals Standing Committee. The push towards the creation of such corporatist structures as the NOHSC was a policy measure instigated in line with the broader aims of the Accord: to solve the labour market and economic growth problems of the 1970s (Kelly 1992, p. 61). The HCAC, also a tripartite corporatist structure, was established to ensure co-operation and consensus formation between selected interests on the perceived risks of toxic chemicals. The composition of the HCAC illustrates the asymmetrical bias towards the employers and the state, inherent in corporatist structures. All but two members, one being an industry representative, are specified to be nominated by either the SPCC itself, by some other state authority or by the Minister. Generally, institutional limits were placed on public participation by the formal, state-controlled arrangements, such as the TFCTS, the HCAC and the NOHSC, which were established for environmental decision- making concerning toxic chemicals. It was not only the economic imperatives of capitalism which drove the shift to corporatism, but the failure of the political system to represent effectively the public and their political will. Characteristically, the establishment of corporatist structures occurs as a result of a ‘functional gap in consensus-building’, with political parties losing their identity and an impasse developing in both the creative and management functions of the bureaucracy (Offe 1985a, p. 244).4
4 Thus the Accord, which set the context to the EHCA (NSW) 1985, had sprung from the belief that the Whitlam Labor Government years had seen conflict between the political and industrial wings of the labour movement and the ALP thus lose its identity. When endorsed at the 1979 ALP National Conference, the aim of the Accord was to turn the identification of the ALP with the unions into a plus (Kelly 1992, p. 61).
159 Certainly, the open-ended nature of the environmental disputes of the period meant they were played out, using direct action tactics, through interdepartmental committees, task forces and inquiries, rather than the ordained procedures of representative democracy for reaching compromise. The TFCTS, and such committees and inquiries as those concerning Terania Creek and the Tasmanian Dams disputes, provided a constant challenge in this period to the legitimacy of both State and Federal Governments. Habermas’ distinction between social and system integration, or between ‘structure and culture’, is useful in the interpretation of the communication problems between the state and the environmentalists (Pusey 1987, p. 43). This distinction is clarified in Outhwaite’s interpretation of Habermas: We thus have three interrelated distinctions. That between system and social integration is based on two others, between action oriented to success and action oriented to mutual understanding, and between mechanisms of action co-ordination which develop and formalise mutual understanding (such as trust and rationally justified authority) and mechanisms which replace it, such as money and power (Outhwaite 1984, p. 91). Habermas’ concept of the principles of colonisation and decolonisation, as they oppose each other in the interventionist state, is relevant to the demonstrated shift towards direct participation and community-based politics. The environmentalist groups were struggling for the debureaucratisation of the decision-making procedures. As Habermas interprets the struggle to interpret the lifeworld: The place of law as a medium is to be taken by procedures for settling conflicts that are appropriate to the structures of action oriented by mutual understanding: discursive processes of will- formation and consensus oriented procedures of negotiation and decision-making (Habermas 1984, p. 154). According to this analysis, the social protest and disputation observed in the case study was in reaction to the rationalisations being framed through the application of universalistic rules for major areas of society. Hence the social contestation was geared to: …protect areas of life that are functionally dependent on social integration through values, norms and consensus formation, to preserve them from falling prey to the systematic imperatives of economic and administrative subsystems growing with imperatives of their own (Habermas 1984, p. 373).
160 Their fear, in Habermas’ terms, was that once the subsystem of the EHCA (NSW) 1985 had been created to monitor toxic chemicals by legal means, it would exclude normative/ communicative understandings as a result of its reliance on formal economic or administrative processes. Hence reform such as the EHCA (NSW) 1985 was in reaction to the populist struggles of the 1970s and early 1980s on behalf of post-material values, where the legitimacy of the state was constantly called into question, rather than a measure of a new political consensus specifically adapted to environmental concerns. The SPCC was carrying out its role, as an agent of the corporatist state, to solve these legitimacy problems for the state with attempts at establishing ‘living law’. The new politics of pollution demonstrated concerns on the effects of pollution, including toxic chemicals, across national and generational boundaries, challenging representative democracy as an institution. As society failed to deliver the goods it had promised, amidst the growing uncertainty of all sorts of parameters, the state set up more interventionist structures. However, while corporatist tactics and structures were utilised to present a coherent and united front in the face of this disruption, they challenged representative democracy by shortcircuiting its processes. The extent of the controversy as the legislation was going through the Parliament is a further indication of the challenge posed by environmental decision-making to representative democracy. The fact that the legislation was tabled over Christmas and that industry ‘beat a path to the Minister’s door’ after which more ‘appropriate’ amendments were made, underscores the lack of institutional transparency associated with this model of the democratic process. In summary, the road to consensus was eased by a process which entailed the SPCC selecting ‘appropriate’ models for the new legislation and then negotiating with industry associations on this basis well before other submissions were called for. The corporatist state continually intervened in order to reduce the complexity of the demands placed upon it, with, for example, some elements of the interest groups being selected for representation over others in the consultations concerning the terms of the EHCA (NSW) 1985.
161 As is typical of corporatist programs for the democratic process, this filtering of issues was achieved structurally by mechanisms which acted to set both formal and informal limits to reform (Ham and Hill 1993, p. 77). The SPCC as the agency responsible for formulating the legislation set informal limits to the shape of the legislation by means of its appraisal of the submissions from the selected interest groups. The SPCC responses to these submissions show that some issues were ignored by the SPCC in terms of further discussion (SPCC 1985a). The formal limits were set by the legislative presentation of the Bill and its subsequent amendment and by the composition of such corporatist structures as the HCAC. The favouring of the concerns of industry underscored the fundamental dependence of the corporatist state on the process of accumulation. However, the competitive excesses of capitalism were restrained by the ‘executive committees’ of the NOHSC, the Chemicals Standing Committee and the HCAC. These corporatist bodies functioned to express a united point of view for the business community that overcame business rivalries (Harrington 1976, p. 312). The TFCTS Report paved the way to a corporatist solution to the legitimacy problems of the state. Its emphasis on human health facilitated the introduction of the issue of worker health and safety and justified the participation of the union in decision-making concerning chemicals. It enabled workers health and safety to be introduced as a new value and installed internationally by the principles of international harmonisation and the organising mechanisms such as the UK National Health and Safety Commission, and similar arrangements in other OECD countries. The establishing of the NOHSC in Australia not only medicalised industrial problems but legitimated the fusing of the goals of state and industry concerning the control of toxic chemicals. The state was to be a source of information on the potential danger of chemicals and not merely an authoriser of chemicals for a particular use. 5.1.4 Summary: the EHCA (NSW) 1985 as corporatist policymaking This analysis of the state, the bureaucracy and the democratic process in this first period of the case study indicate examples of corporatist policymaking at the national level; at the ‘meso’ level of sectoral reform and at the ‘policy community’ level (McEachern 1993). The events of the case study reflect the ‘sharing in the management of the economy’ by ‘tripartite structures’ (Williamson 1989, p. 145)
162 in that they show the Hawke Government intervening to shift the notification and assessment of chemicals to the tripartite NOHSC. The study also showed the NSW Government (as represented by the SPCC) intervening in the sectoral arena of the chemicals industry, selecting interest group representation (from the unions, industry, government and environmentalist) for consultation and formalising the representation in its institutional design through the establishment of the HCAC. The study also described how industry was given ‘insider status’, and the attempts of the diverse groups of environmentalists corporatise in order to shift from their position as ‘outsiders’. In general, the SPCC recognised functional interest groups and incorporated them into the process of policymaking and implementation (McEachern 1993). Arguably, with the ALP in power at both NSW and federal levels, the long relationship between the ALP and the union movement in Australia facilitated this concertation of interests required for the development of the associative model of social order, whether at macro, micro, or policy community level (Hardiman 1987; Streeck and Schmitter 1985). As Williamson argues: Another feature closely associated with the extent of corporatisation is that of Social Democratic or Labour Party predominance (the exception being Britain). Schmitter suggests that the idea of promoting working-class interests within the framework of capitalism is an essential ingredient of the success of corporatism because it facilitates trade union involvement in a cooperative manner (Williamson 1989, p. 151), The fact that industry had more influence in the consultations leading up to the formulation of the legislation accords with the functionalist explanation of corporatism. As Offe explains it, while corporatism theoretically affords labour and capital the same status, their different logics of collective action allow capital more influence (Offe 1985a). While the corporatist state plays the lead in ‘public and private affairs’, it is always beholden to capital and the ‘irresistible drive for private profit and accumulation’ (Newman 1981, p. 221). Corporatist policymaking is a means of achieving a consensus arranged around pre-determined ends, in this case chemicals policy reform that industry could accept. With corporatism: …the smaller pressure groups, - trade unions not under the ACTU, small businesses not under peak associations, any groups whose principles or programs do not agree with the corporatist, in fact most
163 groups of the pluralists model-are simply frozen out of the power equation (Jaensch 1992, p. 347). The history of the EHCA (NSW) 1985 shows it being legitimised as a result of allowing a new form of consultative environmental policymaking in Australia. It was able to act as a legitimator because the state took control of the consultations. The consultations, directed by the SPCC, saw organised and functional groupings represented in negotiation with the SPCC. These groupings were led by peak bodies such as the Labor Council, the Australian Chamber of Manufactures, the Australian Chemicals Industry Council, an environmentalist coalition in the form of the Council for Public Protection and various arms and levels of government in NSW (Appendix B, Item 2). Selected peak interest groups were asked to make submissions and were invited to have further discussions with the SPCC during the consultative period. The SPCC directed and maintained control of all negotiations; were secretive about meeting outcomes, and only selectively revealed information to interested parties. As well, the SPCC negotiated individually with each of these interest groups over such issues as representation on the HCAC, secrecy provisions and rights of appeal. The HCAC, too, is a structure controlled, by virtue of the number of government representatives, by the state. The EHCA (NSW) 1985 was thus legitimised because it represented a break from the elitist-pluralist political forms of governance. Its decision-making, both in terms of the drafting process and its implementation, involved corporatist negotiation under the control and direction of the state, not pluralist competition. The concentration of organisational power in the form of the selected interest group representation and the strong role played by the SPCC in the negotiations prevented the formation of the shifting alliances characteristic of pluralism. The SPCC had the total responsibility for the consultative process leading up the EHCA legislation and was solely responsible for the selection of the interest groups and the consultative activities. The organisational dynamic transforming pluralist interest representation to corporatist interest intermediation is the ‘substantive and procedural bargaining between the state and organised interests’ (Streeck and Schmitter 1985, p. 131. As pointed out, the SPCC also maintained control of all documented versions of the proposed legislation, refusing all other
164 groups access until it was tabled in the House. This is not the ‘umpire’ role played by neutral state of the pluralist model. Nor are these the characteristics of the elite model, where the state is ineffective against the power of elites (Jaensch 1992, pp. 346-347) and where ‘parliaments and governments, except in the times of national crisis, cannot effectively counter the influence and power of elites’ (Jaensch 1992, p. 347). As indicated, the effect was the slanting of the consultation towards the needs of industry, but the end result was determined by the state. Elites may have worked within the functional groups, but industry did not have total control. The state could not have functioned as a forum and gained a degree of acceptance and support from the union and from the government departments if just a tool of the capitalist class (Scholten 1987, p. 27). Hence a key aspect distinguishing the decision-making behind the EHCA from the pluralist or elite models of democracy was the ‘directive or co-ordinating role’ played by the state (Self 1985, p. 108). Most models of corporatism lean towards the leadership of the state in the array of actors: Whether it is one of the various concepts of ‘tripartism’ (the state coordinating or supervising the collaboration of organised capital and labour) or the notion of an ‘institutional design’ (developed and enforced by ‘the state’ in order to extend public authorities and control through functionalised political organisations and ‘private interest governments’), it is always the ‘state’ which is conceptualised as the most privileged and crucial actor in the neo-corporatist game- interlocutor, arbiter, addressee, silent reference point, implementing agency, regulatory force, master mind, ultimate guarantee, etc’ (Marin 1987, p,. 57). Certainly, the case study showed evidence of close relationships between business and industry and of pluralist decision-making as amendments were made ‘after industry beat a path to the Minister’s door. However, in defining the characteristics of societal corporatism, it has been acknowledged in Chapter 2 that corporatist writings do not employ a unified theoretical approach. Reference has
165 been made to the argument that corporatism is a ‘partial’ political structure, co- existing with other political forms.5 According to Scholten, a guiding criterion of corporatist decision-making is ‘the direct involvement of private groups in decision-making processes whereby the outcomes are authoritative decisions which have at least a de facto public-legal status’ (Scholten 1987, p. 124). Both the NOHSC and the HCAC accorded interest groups at least a ‘de facto public-legal status’ (Scholten 1987, p. 124). Rather than the pluralist model where bureaucratic power is decentralised to ‘sub- centres’ (Self 1985, p. 144), the above analysis shows that the decision-making surrounding the EHCA (NSW) 1985 represented an attempt by the state to centralise power in the SPCC. Too, the EHCA (NSW) 1985 was a landmark piece of legislation because it was the first integrated legislation, aimed at controlling chemicals from the cradle to the grave, ever passed in NSW. In the corporatist account, ‘bureaucracy is hypothesised to act in a more integrated and uniform manner than under the pluralist analysis’ (Self 1985, p. 144). Moreover, the attempt at reforming the observed bureaucratic territoriality is a characteristic corporatist response to this irrationality. It describes the emphasis on technical criteria, and on formalised procedures, as set out in the responsibilities of the HCAC, and in other requirements associated with the centralising and integrating of chemicals control. 5.2.0 Corporatism and sustainability deficits The above review of the case material shows that, in a political and social climate faced with direct action, corporatist structures functioned as a second circuit to an increasingly challenged representative polity. Such functional representation depoliticised conflict. The push towards the creation of such corporatist structures as the NOHSC, and the incorporation of the HCAC into the workings of the EHCA (NSW) 1985, were policy measures, employing the processes of juridification, contrived to overcome the disruptive social tendencies expressed by the protests of the environmentalists and deriving from the organisational problems of the
5 Arguably, corporatism has been applied fruitfully as an analytical instrument to an ‘astonishing variety of arenas and countries’ (Schmitter and Streek 1987) because it exists on many levels and in different forums (Scholten 1987, p. 22).
166 bureaucratic state. Social protest was negated because the composition and authority of these institutions was set so as not to disturb or place extra requirements on the status quo. The history of the EHCA (NSW) 1985, as it traces the issues of the first period of the environmental problematic, tracks the emergence of corporatism as a political form as it developed in response to the observed problems of the welfare, interventionist state. The events of the case study described in Chapter 3 illustrate the commitment of the corporatist state to reduce demands and to secure economic growth. It further demonstrates that the priorities of the corporatist reform agenda, established to reduce the administrative and legitimacy deficits characteristic of late capitalism, leave further administrative and legitimacy deficits in relation to environmental management. For some theorists, the study would be an illustration of the degree to which the hands of the advanced capitalist state are tied by the functional primacy of the economic sub-system (Luhmann 1992, pp. 68-72). A more searching analysis would show that the corporatist agenda stands contrary to the non-material values ascribed to the environment by sustainability criteria. Since the corporatist program, from the neo-Marxist perspective, evolves as a result of the unreconstructed crises and contradictions of the overloaded state, it follows that neo-Marxist theory is unable to analyse the needs of sustainability. Although such theory remains insightful in its application to the emergence of the broad range of social movements whose concerns relate to the bureaucratisation of social relations, it has not taken the emerging issues of environment into account. Sustainability criteria pose a new field for thematisation. Difficulties for the corporatist program arose from the state’s dependence upon capital, upon a rationalising, objectifying bureaucracy and from the need to pursue legitimising public processes in the general interest, while satisfying private interests. We will now consider these in turn. 5.2.1 The interventionist, welfare state Essentially the history of the EHCA (NSW) 1985 shows a failure to reform environmental policy according to the needs of sustainability because of the persistent blocking by the state dependence upon capital of any radical measures
167 for revaluing the environment.6 The underlying dependence upon the cooperation of the private sector and the primacy of private accumulation is illustrated by the way declarations of commercial confidentiality were used to place limits on the legislation and regulation. This relationship between the state and the accumulation process also resulted in the corporate capture documented by the study. The EHCA (NSW) 1985 represented a major threat to powerful sectors of the electorate. The SPCC had to face the open support of the rurally-based National Party for the chemicals industry in controversy leading to the passing of the EHCA (NSW) 1985, with no admission of harm from toxic chemicals in the past or its potential for the future. The SPCC was unable to establish the EHCA (NSW) 1985 as ‘umbrella’ legislation and bring about rationalisation and reform of the existing system because both it and the Department of Agriculture were in a political situation of resource dependency on the patronage of a single and powerful constituency. Furthermore, although the state was in a situation of dependency on industry, business supported environmental reform only when it suited them. Hence there was industry support for the implementation of worker health and safety through participation in the NOHSC, but not for the voluntary INS scheme. In essence, the chemicals industry had been attempting to pre-empt more stringent regulation for years before the passing of the EHCA (NSW) 1985, as demonstrated by the attempt at self-regulation with the establishment of the Chemsafe/ Petrasafe campaigns. By 1989 the chemical industry was still taking the initiative with self- regulation, stalling off more stringent regulation with the establishment of the Responsible Care Program (Beder 1996, p. 238). As an ecologically rational and reforming legislative initiative, the EHCA (NSW) 1985 demonstrated a failed response to the challenges of the first environmental phase. This failure resulted from the structural dependence of the corporatist state on private accumulation and hence its vulnerability to the political concerns of multinationals (such as Ciba-Geigy), to the ‘advice’ of industry advisory committees (Yeager pp. 34-35), and to the concerns of specific industry sectors.
6 See also the analysis by Fulcher (Fulcher 1987, p. 249)
168 The study showed the inadequacy of a corporatist response, trammelled by this relationship with industry, in relation to sustainability criteria. Intergenerational equity and even progress towards the Stage 1 of ‘ultra-weak’ sustainability could not be a major consideration of corporatism as conceived in the 1980s (Pearce et al. 1993, p. 186). As a political program, it was underpinned by the ‘cornucopian’ faith in economic growth and assumed extensive substitutability (Pearce et al. 1993, p. 20). The EHCA (NSW) 1985 did not ensure the manufacture and use of chemically benign products because of the continued dominance of international economic interests and domestic political commitments to economic development. As well, sustainability deficits in relation to intragenerational equity resulted from the domination of the decision-making by the concerns of international corporate players, such as Ciba-Geigy, both in relation to the priority of international harmonisation and the terms of the legislation. Degradation of the environment as a result of inappropriate state intervention on behalf of economic interests only benefits a few (Birkeland et al 1997, p. 324). Indeed, the corporatist program, and the social crisis theory which was used to explain it, assumed that the environment and the interests of the business community were opposed. Hence there was no attempt to harness the business community into the production of safe alternative products. The EHCA (NSW) 1985, was not supported by initiatives to foster development of safe substitutes, or to develop the capacity for manufacturing substitutes. Neither was recognition given to the full costs of chemicals pollution, which remained treated as an externality. Costs accruing to the next generation were thus ensured by the lack of reform. The low level of penalty fines and the lack of willingness to support the chemical contingent scheme demonstrate the lack of attention paid to the full costs, including social, environmental and economic, of the effects of toxic chemicals. The corporatist response placed its faith in technical change and scientific control through such schemes as NICNAS to solve all externality problems, while international harmonisation would enable its commitment to more efficient international trade in chemicals. Thus the
169 underlying ‘cornucopian’ assumption was that ‘the costs of their control outweigh the benefits of their control’ (Pearce et al 1993, p. 21). The failure of the corporatist state to reform the management of toxic chemicals led to costs for the future generations not allowed for in traditional assessments of economic growth. Such costs include pollution clean-up, the costs of transport accidents, health costs and costs of industrial accidents. Sustainability deficits also relate to the imposition of these costs in inequitable amounts on the current generation, those most obviously more vulnerable including the agricultural sector and workers in chemical plants (Hamilton 1998a, pp. 75-88). As ‘little-used’ legislation, with an ‘inactive’ advisory committee, the opportunity in the form of the EHCA (NSW) 1985 to manage the distribution of toxic chemicals more equitably was lost. Noxious air pollutants, for instance, could have been more strongly regulated by ensuring the EHCA (NSW) 1985 would override existing legislation, as had been promised. Alternatively, they could have been made the subject of a chemical control order, by either an HCAC or a regulatory agency with more teeth: In Australia both sources of emissions and human populations are highly concentrated in a relatively small number of discrete areas, within which measurable costs are imposed. These areas include the larger cities and a small number of non-urban regions which contain an high concentration of power stations, metal smelting and other large pollutant–emitting industries (Hamilton 1998a, p. 84). 5.2.2 Scientific risk assessment and the institutionalised bureaucracy As expected of corporatism as a political program, the bureaucracy, represented by the SPCC, the TFCTS and the HCAC, played an important role in the adoption and the implementation of the EHCA (NSW) 1985 as a policy. These various bureaucratic structures facilitated the achieving of consensus through its mediation of social and economic influences (Ham and Hill 1993, p. 48). Thus the calling in of corporatist political forms during this episode to ‘solve’ environmental issues illustrates the functionality of corporatism when the administrative base becomes anarchic and cannot be managed through traditional structures of parliamentary representation and state agency.
170 Accommodation was justified by the efficiency and effectiveness of the decision-making.7 For example, SPCC officers saw themselves as being able to ‘understand the needs’ of industry. But it was efficiency in terms of accumulation according to accepted industrial patterns that was the aim. The SPCC consultations and in-house documents indicate the lack of emphasis on providing incentives for the altering of production so as to favour the use of less toxic chemicals; to integrate awareness of the risks of toxic chemicals into management solutions, or to manage soil contamination so that the polluter is designated to pay environmental costs. Jasanoff has labelled such forms of consensus as co-optation (Jasanoff 1986).8 The events of the case study in this first period underline the reactive nature of the corporatist politico-administrative system, pointed at legitimacy and near term profits, as one source of the limits to its ecological rationality (Yeager 1991, p. 323). Such a management strategy is classified by Pearce et al as ‘cornucopian’, deserving of the label ‘very weak sustainability’ (Pearce et al 1993, p. 19). In this instance, the corporatist bureaucratic program attempted to solve contradictory problems by placing more emphasis on the logic of rationalised Western problem solving. The EHCA (NSW) 1985 was promoted by its proponents as enabling rationalisation of toxic chemicals control giving ‘cradle to grave’ protection. Yet its emphasis on scientific assessment, on regulation and on licensing as regulatory tools for agency use legitimated the persistence of narrow bureaucratic specialisation, the target of the reform in the first place. The maintenance of fractionalised bureaucratic approaches to regulation, legitimated by science, allowed the holistic and uncertain nature of the toxic
7 Offe and other neo-Marxists take the position that conditions of advanced capitalism require new forms of legitimation that go beyond a simple trust in the political system, arguing that the late capitalist state must manoeuvre its role so as to succeed in the universalisation of the commodity form and thus be identified with the norms of efficiency and effectiveness (Offe 1975a; Offe 1983). 8 This conclusion is supported by Jasanoff’s analysis of the apparent group solidarity leading to a ‘consensus’ in European regulation. She argues it is an empty concept, as accommodation is more likely to be, given the realities of regulatory negotiation, either ‘cooptation’ or ‘compromise’. Jasanoff’s description of the dynamics of the consultation process on a multipartite committee is relevant: a convergence between interests of agency and industry develops because of the existence of parallel values and objectives and an imbalance in information (Jasanoff 1986, p. 61).
171 chemical problematic to be missed. For instance, the concepts of toxic synergies and the potential additive effects of chemicals were not addressed in any of the obtainable SPCC records of the consultations.9 Thus another source of sustainability deficits was the mismatch between sustainability criteria and the science-based risk assessment perspective of the state agency, evidenced by the priorities of the SPCC personnel and their favoured interpretations of appropriate policymaking. The sustainability deficits arose because environmental management cannot be relegated solely to the management of science. As Beder has pointed out, the uncertainty of the effects of toxic chemicals, the influence of the international chemicals industry and the difference between the regulatory regimes for toxic chemicals in various countries, place the control of toxic chemicals in social, political and economic domains unrecognised by regulators (Beder 1996, pp. 121-124). Because equity is not a consideration in scientific risk assessment and because the complexity of the environmental issues underpinning ‘cradle to grave’ reform was not understood by the regulators, there was little emphasis on the intergenerational effects of chemicals pollution. The faith in the application of science and the dependence on bureaucratic management characterise the bureaucratic agenda for toxic chemicals as technocentric (O’Riordan 1989, p. 37). Bureaucratic inertia and resistance to reform also resulted from the centralised, institutionalised bureaucracy continuing to operate according to order and hierarchy, a mode of action unsuited to innovative responses to local needs. The observed failure to instigate structural reform can be related in this instance to this discrepancy between the structure and function of the bureaucratic arm of the corporatist state Despite this mismatching, the SPCC saw itself to be appropriate as a coordinating institution, with a leading role to that of the other state units (such as the NSW Department of Health and the NSW Department of Agriculture). Apparently, the other state agencies also had ambitions, or were at least defensive. Such persistent territoriality is explicated by Luhmann’s views of society and state
9 No mention of the assessment of mixtures for such additive or synergistic effects can be found in the summary made by the SPCC of the submissions (SPCC 1985b).
172 increasingly transforming themselves into self-referential, closed systems (Luhmann 1987; Pusey 1991, p. 201). In bureaucratic organisations as with other organisations, Luhmann argues that the behaviour of the organisation is abstracted from the roles and motivations of the constituent members. He argues: The inclusion of the concrete, bodily individual within the whole of society cannot occur within the society differentiated into specific function systems. Inclusion within society means exclusion from all function systems, that is exclusion from society. Inclusion within the whole means exclusion from the parts. But what is the whole if it cannot be part of the whole? If it cannot be represented in the whole by any part? (Luhmann 1987, p. 221) The case study demonstrated co-ordination being prevented by the activities of a strongly entrenched and competing set of bureaucracies, operating within the boundaries of their own ‘policy communities’. The corporatist governance, trammelled by the need to maintain the status quo, allowed the independently operating bureaucracies to inhibit attempts at reform. The corporatist agenda was to maintain a strong, regimented and systematised program for the bureaucracy. But underpinned by the ‘logic of rationalised Western problem-solving, orderly bureaucratisation and even more narrow specialisation’, the result was a fragmented bureaucratic approach to regulation that missed the holistic nature of environmental problems (Yeager 1991, p. 324). As noted, competition between the NSW Department of Agriculture and Fisheries, and the NSW Department of Health and the SPCC was sharp. The entrenched policy community associated with agricultural chemicals saw the NSW Department of Agriculture co-operating with the AVCA as they defended their ‘subgovernment’ against being overtaken by the EHCB. Hence despite the TFCTS recommendations for rationalisation, NSW Department of Agriculture maintained control of the Pesticides Act 1978 well into the second period of reform. The inability of the SPCC to bring the Pesticides Act 1978 under its control gives another instance of how the corporatist regulatory system, with its technocratic emphasis, was left with an administrative deficit and a failed environmental reform. The EHCA (NSW) 1985 did not succeed in ensuring an integrated system of control over chemicals ‘from the cradle to the
173 grave’ because bureaucratic territoriality and inter-departmental competition could not reformed under the corporatist agenda. The whole scheme of chemicals management as proffered by the EHCA (NSW) 1985 depended upon notification and assessment authorities, upon regulatory authorities producing chemical control orders and granting licences. The point is that it is the state that provides the resources to do this continual assessment, and the chronically understaffed regulatory agencies who do the work.10 Such regulations and controls do not really put any onus on industry, nor do they encourage innovation. This example of the corporatist failure to bring about reform highlights the reluctance of capitalist governments to burden industry. An institutionalised and technocratic bureaucracy supported the emphasis of the corporatist program on the needs of business. Bureaucratic accommodation and fragmentation, and a narrow and specialised perspective on science could not ensure the innovative change needed for the ‘cradle to grave’, or ‘integrated’ toxic chemicals policy. The SPCC, despite its ambitions, was not able to take control of all environmental management for the state. Nor was environmental protection integrated as a priority reform into the policy making for all government departments. Instead the responsibility for toxic chemicals remained with the confusing range of bureaucracies and agencies. Corporate capture remained to characterise the agricultural chemicals industry, and the time lag for the initialising of the NICNAS meant large quantities of new industrial chemicals were able to come onto the market unassessed. The large proportion of the bureaucratic effort and funding in the corporatist model went into the bureaucratic accounting of the notification, assessment and other regulatory efforts, which are uncertain in their ability to prevent pollution, and resulted in a sustainability deficit (Birkeland et al 1997b, p. 320). The failure of the corporatist bureaucratic reform agenda highlights ‘the injustice of inaction’ (Hamilton 1996c, p. 168). Costs were
10 As a result, the EHCA (NSW) 1985 has effected 8 chemical control orders in the eighteen years of its life.
174 incurred for the present generation that would not be equally distributed, but nor would they be for future generations. ..the distributional effects of failing to prevent the degradation of the environment have been almost wholly ignored. This is another indication, if we needed one, of how short term our policy thinking is. The simple fact is that, in almost every case, the poor suffer far more than the rich from the degradation of the natural environment. Here I refer to both today’s poor and the poor of the future (Hamilton 1996c, pp. 168-169). 5.2.3 Selected interest group representation The focus of the decision-making in the formulation of the legislation was on accommodation, and the achieving of politically containable decisions. Corporatist political forms and structures shaped the response to issues with toxic chemicals in this period to prevent further instabilities in the politico-administrative system that would require further rounds of state action (Yeager 1991, p. 40). Tripartite bodies such as the NOHSC and the HCAC, riding on the doctrines of international harmonisation and worker health and safety, allowed the strategic depoliticisation of an issue characterised by many and opposing factions and philosophies as well as demarcation disputes between the various state bureaucracies. Measures such as worker health and safety; international harmonisation and umbrella legislation turned sources of unpredictability, for example in terms of trade barriers, into administrative decisions, which could be negotiated with regulators. As these administrative decisions were made outside the public arena, another avenue was thus provided for avoiding pressure for change which would effect the accumulation process in any profound way (Yeager 1991, pp. 29-30). Such an approach did not address the public perception that there was need for change. The case underscores the extent to which community participation can be restructured and diminished by consultation, when it is used strategically to serve organisational or political needs (NSW Office of the Cabinet 1998, p. 14). The broad right of standing included in the EHCA (NSW) 1985 was a step forward, but the selective inclusion of the environmentalist groups and the lack of success of their submissions reflect the determination of economic interests to contain threats to trade secrecy. The summary of the submissions made by the SPCC shows little
175 emphasis on local government involvement in the decision-making. The lack of public access to the inventory, to the HCAC and to the licensing process meant there was effectively no enforced right to public participation. The EHCA (NSW) 1985 was shaped by this corporatist ‘behind the scenes consultation’ which ensured the maintenance of the status quo (Pearce et al 1993, p. 186 and p. 190). In corporatism, participation and accessibility are replaced by ‘accountability and responsiveness’ (Hearn 1985, p. 176). The consultative mechanisms established in the development of the legislation and structures such as the HCAC and the NOHSC allowed ‘accountability’ and were formed to give the appearance of responsiveness. In fact, these structures can be linked with the subsequent failure of the legislation as environmental reform in relation to sustainability criteria. The administrative deficit due to lack of commitment by the HCAC, and the policy delays and implementation deficit associated with the establishment of the NICNAS and the Chemicals Standing Committee of the NOHSC, have ensured sustainability deficits. Such structures geared to command and stability, rather than innovative reform directed at the new challenges of sustainability, are key aspects of corporatism (Jordan 1981, p. 107). This aspect of the history of the EHCA (NSW) 1985 shows the interventionist state using the corporatist process of interest group representation and consultation as one of its allocative mechanisms, not as a means of community-based participation or for the determination of local needs as required for sustainability. The dominant interest groups of industry, labour, and government represented material interests and the process of ‘consensus’ formation dominated by economic logic, not by the concerns of equity in the distribution of environmental risk or resources. Sustainability deficits resulted from the exclusion of the community and through the lack of institutional transparency, both in the terms of the legislation, and the consultative processes, despite the proclamations that the EHCA (NSW) 1985 was to be ‘living law’. These deficits not only relate to the inequity previously described because of the increased risk for the future and the present as a result of such failure. They also derive from the fact those community attitudes, involvements and commitments are necessary for a change towards sustainability (Pearce et al 1993, p. 186).
176 Further, the legitimacy deficits resulting from such a failed environmental reform are not conducive to such attitudinal changes. 5.3.0 Summary: sustainability and the challenges to corporatism The history of the EHCA (NSW) 1985 highlights the challenges posed to representative democracy by the ‘postmaterialist attitudes and unconventional forms of political participation’ of the new politics of the environment (Gerlich et al. 1988, p. 220). Analysis of the political response to the first period of the environmental challenge illuminates the failure of the centralised, institutionalised, and growth-driven politico-administrative model in relation to environmental management when measured against sustainability criteria. In so doing, it also challenges aspects of traditional political theory and some accepted precepts of democratic theory. Although deemed by neo-Marxists as inherently unstable, corporatism aims to maintain the status quo. With the policy makers involved with the EHCA, environmental problems were perceived as issues associated with occupational health and safety and the workplace. Aside from the impact upon accumulation by the reaching of natural limits, the concept of intrinsic environmental value was left out of the account. Hence the emphasis was on human-based economic risk assessment, not on the social justice aspect such as assimilative capacity. The distribution of risk was examined from the scientific cause and effect model, with little emphasis on the relationship between science and society. In other words, it was assumed that ‘the structures of society and knowledge could be described and known, rather than judged and trusted’ (McDonell 1997, p. 845). The case study reflects the fact that the neo-Marxist, corporatist perspective on toxic chemicals and other environmental issues was informed essentially by the concept of the nature/ culture separation and the freedom of modernity to dominate nature. Some concepts of neo-Marxist theory are very relevant to an understanding of public alienation by the exclusion policies of the decision-making processes associated with this corporatist model. In neo-Marxist terms, the exclusion of community by the processes of selection of interest groups and by the control exerted by the SPCC experts of discussions on the content of the EHCB demonstrates attempts by the state to gain increased steering power. As well, the
177 neo-Marxist perspective can explain the on-going contestation between the law and economic interests and reliance upon rationalised science. However, the need to address public demand for environmental reform goes beyond the boundaries of neo-Marxist margins.11 Neo-Marxist theory, and its functional analysis of neo-corporatism fails to deal with the environment challenge because the environmental problematic cannot be rooted solely in the working class and their struggle (Gobeyn 1993, p. 4; Panitch 1980, p. 178). To the extent that the struggle for the environment represents the struggle for non-material concerns, the environment stands with the ‘working-class’ opposed to economic interests. However, the course of events documented here underscores the mismatch between the labour-supported institutional arrangements of the corporatist state and sustainability. At base, the neo-Marxist analysis does not give sufficient value to the environment as a non- substitutable resource. Despite the empirical indications that the less well-off in society are exposed to the most environmental risk (Hamilton 1996, p. 169), the class struggle has been largely theorised in material terms and environmental issues regarded as standing contrary to economic interests. The first era of the environmental problematic, as illustrated by the history of the EHCA (NSW) 1985, also illuminated aspects of the failure of traditional democratic theory when applied to the contemporary nation-state. The corporatist reform agenda emphasises the elements that ‘have made representative democracy so successful; namely, a combination of appeal (the legitimate power of the state rests on the regular free choice of its citizens) and its viability (its effective protection of the market economy)’ (Dunn 1992, pp. 247-250). But where it is most successful, in its support of capitalist development, it is also the most vulnerable, when judged against sustainability criteria. Such management priorities can be seen to have produced both legitimation and administration deficits and to have failed sustainability criteria. In other words, the liberal
11 Habermas’ theory points to an underlying scientism, rather than economic priorities, that insulates the politico-administrative system (of late capitalism) from ‘participation; from interpretations of need and from many of the normal and supposedly normative prerogatives and entitlements of citizenship in a liberal social democracy’ (Pusey 1991, p. 224).
178 democratic state, heretofore, has been successful in supporting the goals of capitalist expansion by dint of excluding nature from the equation. A fundamental issue of equality which calls representative democracy into question is the reliance of freedom of political expression upon social resources that are unevenly spread in a capitalist economy (Lijphart 1984, p. 2). With the emergence of the environmental challenge, a new inequality becomes obvious that has been untheorised: that of environmental risk. Organised labour emerges as a social formation able to deal with the environment through strategic interest group representation and a strong bargaining position with industry, in this case through the relegation of toxic chemicals management to the realm of occupational health and safety. It is the outsiders of the ‘community’, the groups who have no direct place in the corporatist bargaining position, who are left unprotected by such arrangements. Thus the history of the EHCA (NSW) 1985 illustrates the challenges that the questions associated with the environmental crisis pose to these normative concepts of democracy and its translation into the corporatist political form. Its political context, in this period, was one where disputes were negotiated outside the forums of representative democracy. The controversy over the terms of the legislation was resolved outside the realm of traditional representative politics, according to a preconceived need set by a long tradition of the accepted relationship between the state and economic development in this country. As Beder points out, the protagonists left dissatisfied by this political arrangement aimed at economic growth are those who represent new aspects of the economic system beyond those of capital and labour (Beder 1996, pp. 9-13). The short-term perspective on economic growth meant there was no high- level political commitment to the achievement of reform. Further public frustration resulted because, in this political climate, the existing tendency to bureaucratic fragmentation was encouraged by a more institutionalised bureaucracy, building legitimacy through association with regulatory science. Corporate capture made co-ordination across the bureaucratic fragments even more challenging and can be seen to have furthered public cynicism in the institutions of representative democracy. Eckersley, in similar vein, has argued that the transfer of many environmental battles in Australia to the arena of direct
179 democracy relates at source to the capture of agencies and resource instrumentalities by clients. She identifies this as an issue unexplicated by the neo-Marxist social systems models (Eckersley 1996, pp. 102-104). She argues that, Habermas, in particular, can never theorise from the ecocentric perspective because he accepts the instrumental rationality of the politico-administrative system as cognitively appropriate to the operations of that system (Eckersley 1992, p. 113). This study, in elucidating areas of failure in the corporatist response to the first period of the environmental crisis, identifies existing institutional obstacles to the achievement of sustainability criteria. It indicates that the root challenge to the liberal democratic state is one of structural reorganisation, to enable a community monitored, more flexible and holistic decisions. The limitations of the corporatist stewardship of the environment also relate to its reliance on the reductionist standards of science-based risk assessment and technical criteria. In the end the EHCA (NSW) 1985 was no different in principle from the ‘ad-hoc’ system it was meant to replace. The link is to the recognised need for redesign rather than the monitoring of standards to achieve sustainability criteria: The question is how we can change industrial culture, and again we may see what evolutionary theory and ecology have to suggest. This transition requires that we step outside any narrow disciplines and try to understand the overall evolution of the physical, socio-economic, demographic, technological, and cultural systems that are the objects of concern. It is not sufficient to ask ‘experts’ what to do , since in some ways they are already part of the problem. It is the narrow values of experts that we are attempting to escape from. (Allen 1994, pp. 98-99). The development of sustainability strategies depends on a systematic view of our society; on the reintegration of social creativity into scientific thinking and of man back into nature (Allen 1994, pp. 98-99). 5.3.1 Political decentralisation The perception that environmental management is necessarily at odds with the accumulation process resulted in such decision-making in this study as the discarding of the compulsory insurance scheme. Nor was an attempt made for the EHCA (NSW) 1985 to provide a strict liability principle for altering of
180 environmental conditions in the future which would have been a method of institutionalising the precautionary principle (O’Riordan 1994, p. 308). Contemporary political theory sees accumulation as not necessarily at odds with environmental protection. ‘Legal-constitutional activities’ of the state can be used to support ecological modernisation: in other words, the redesigning of production processes with the minimisation of environmental impact in mind (Dryzek 1995, p. 300). The examination of the corporatist model via this phase in the history of the EHCA (NSW) 1985 shows the necessity of political restructuring to break the structural connection between the state and the large corporations and the industry associations on behalf of prevailing concepts of economic development and measurements of economic progress. As Birkeland et al argue: ‘the powerful are structurally conditioned to protect their profits, power and position’ (Birkeland et al 1997b, p. 324). Therefore more citizen participation, responsibility and involvement is necessary to take accord of environmental value and to ensure equity across and between the generations. Public involvement based on well-founded images of possible futures and their economic consequences provides one way of characterising the valuation of uncertain environmental situations (O’Riordan 1994, p. 314). This study of the corporatist program holds a mirror to the deficiencies of the capitalist state as it intervenes to foster accumulation in support of the citizen as a consumer. Rather than the materialist indicators of capitalism as perceived by traditional political theory it is these structural changes concerning citizen rights that are increasingly seen as ‘progress’. Rather than the centralised government intervening on behalf of the established, official indicators of welfare for the human customer, political decentralisation should allow increasing citizen participation and the development of new indicators of human ‘progress and well- being’ (Salvaris 1998, p. 44). It is now increasingly recognised that the attainment of sustainability criteria is linked with the concept of citizenship, and of taking responsibility for the management of the environment at the local level (Brown 1998, pp. 276-277). This requires government intervention, not to dictate from the perspective of the state agency or on behalf of the needs of economic development but from a
181 position which fosters the development of local structures capable of determining needs, managing preferences and recommending on appropriate actions. In the corporatist model such structural capacity resided totally with the centralised state. The EHCA (NSW) 1985, in this first period of its life, demonstrates its failure. 5.3.2 Integrated policy and devolved bureaucratic responsibilities In this first period of the environmental crisis, the political response was to manage the environment from the isolated, ‘scientific’ perspective. The failed attempts at rationalisation and reform represented by the EHCA (NSW) 1985 reflect an inability to integrate social, economic and environmental policy (Common 1995, pp. 4-5; Pearce et al 1993, p. 193). The SPCC failed in its attempt at concentrating environmental responsibilities; there was no attempt made to extend environmental responsibility across all government departments, and in the end the new practices of utility were limited to contaminated sites. In the initial expectations for national responsibility for notification and assessment the SPCC and the EHCA (NSW) 1985 were captured by the limited concept of environmental management of toxic chemicals as an aspect of occupational health and safety. For strong sustainability, risk assessment must be more ecologically based. The case study has highlighted the reliance that the bureaucratic reform agenda of corporatism places on increased planning by state agencies such as the SPCC. The aim of the corporatist structure for intermediation was to achieve organisational authority in the name of the state and the accumulation process. This authority of the administrative sphere as represented by the state agency and the various bureaucratic departments and committees, was legitimated by its expert knowledge, and rationalised planning and problem solving capacity. However, the lack of success of the EHCA (NSW) 1985 and the continued public agitation on behalf of the environment illustrates the challenge posed to this form of expert bureaucratic authority by the increasingly complex nature of environmental management and the new politics of the environment (Torgerson 1990a, pp. 115- 163). Institutionalised structures of corporatism served to facilitate the bureaucratic accommodation associated with the existing system of relations between industry and the administrative system.
182 The history of the NSW Act has proven to be an example of how environmental regulation prompts the state into a particularly contradictory role. As Weale argues, the concerns of the new social movements such as environmentalism involve a defensive battle for a sphere of life against the intervention by the state, yet the way the state attempted to solve these problems was by more intervention in the form of umbrella and comprehensive regulation; lists and recording systems; technical committees and an increase in administrative arrangements (Weale 1992, p. 49), and thus only provides further dissent. As McDonell points out: Criticisms and contestations of the monopoly of truth by state agencies, and of the use of officially sanctioned conclusions of experts from organised technoscience, are now very common in environmental matters (McDonell 1997, p. 845). Thus the problems faced by the corporatist state in achieving sustainability criteria highlight the need for more devolved and co-ordinated bureaucratic structures. 5.3.3 Institutional transparency The legitimacy deficits resulting from the reforms characterising the first period of environmental reform reveal the need for more institutional transparency in environmental decision-making. The disaffection was not associated with material concerns but by the need for equity and participation in the decision-making concerning environmental risks. Recent evidence supports the conclusion that the environment brings to the forefront new values that are not to be satisfied by the ‘guiding story’ of economic growth and development, or of democracy in the corporatist form (Eckersley 1998, p. 11).12 The case study highlights the problems associated with participation conceived as consultation. Recent reports identify the unarticulated ‘organisational and political needs’ that can underlie the use of consultation, such as the validation of decisions already made elsewhere and the limiting of the parameters of the debate according to pre-determined needs (NSW Cabinet Office 1998, p. 14). The EHCA (NSW) 1985 produced sustainability deficits because the
12 Recent research indicates the increasing gap between our values and the way we live. Young people want a greener, more stable society and Australian society as a whole looks to the security of community-based values and assurances (Eckersely 1998, p. 10).
183 consensus achieved concerning the legislation was pre-determined according to the goals of economic growth. In effect, the law structures environmental disputes through its determinations of the rights of the public (including conservationists) to take part in resource decisions. The EHCA (NSW) 1985 was only the second piece of legislation in NSW after the EPAA to extend the rights of standing, theoretically representing an important step forward for community-right-to-know. 13 Yet it has been little used in this way, illustrating the clouded relationship between legal rules and political needs in the context of the Australian democratic state. As Bonyhady points out, more institutional transparency is required for the courts to be open in practice as well as in theory (Bonyhady 1993, (p. xii). 5.4.0 Conclusion The corporatist program in NSW functioned to lessen the complexity of the demands upon the overloaded state and reduce the legitimacy and administrative deficits deriving from the contradictory demands of accumulation and representation. Yet the case study has shown that the corporatist program did not address the environmental issue it was charged with in this instance of policy reform. Indeed the corporatist response to the challenges of the first environmental problematic, as instanced in NSW by the case material, did not meet sustainability criteria and created new legitimacy and administrative deficits. In summary, the EHCA (NSW) 1985, rather than being profound reform in the direction of pollution prevention, reflected assumptions of the 1970s concerning the sources and consequences of pollution. No process change was encouraged and reliance on licensing was maintained. In answer to the question of how could so little have been achieved by legislation from which was expected so much, it repeats the fate of the 1970s reforms in Europe and the USA: However, if the function of the reforms was not to solve a pollution problem but to solve a legitimation problem, then the
13 Here accountability and accessibility can be ensured in a legal and statutory system through a properly implemented community-right-to-know (CRTK), which includes available current, accurate, accessible information on environmental issues; rights to public participation in the formulation of legislation; facilities by which to monitor the outcomes of regulation and to force regulatory agencies into required action; rights to freedom of expression and the right to bring court proceedings (Ramsey and Rowe 1995, pp. 114-117 and 167).
184 built in non-implementability of the policies becomes explicable, for they simultaneously exhibit high political visibility, and hence have symbolic importance in terms of legitimation, whilst taking a form that poses no serious threat to the process of capital accumulation (Weale 1992, p. 218). Thus this explication of the corporatist model in relation to sustainability criteria underlines the need for structural changes that decouple the centralised state from accumulation pressures. Indeed, the case study emphasises the paradoxical nature of the environmental challenge. The need is for policy that both increases coordination and yet shows greater sensitivity to community needs. Reform agenda are needed for the state, the bureaucracy and the democratic process that assure political and administrative decentralisation and policy making enabling the integration of social, economic and environmental concerns and institutional transparency. Such transparency requires measures to expand environmental education and the resources of public interest groups, as well as the structural change at bureaucratic and macro-political level. 5.4.1 The passage to the second phase of the environmental challenge As the new global challenges of the second phase of the environmental challenge arose corporatism itself came under attack. We have seen in this chapter that the course of events of the case study reflected the corporatist response to the welfare politics of the Whitlam period. With a changing economic climate towards the end of the 1980s, the systematically coordinated behaviour of neo- liberalism gained in influence in both major political parties in Australia. The priorities of the New Right constellation came to the fore, finally laying to rest the reformist discourse of the public sphere of the Whitlam era of the 1970s (Pusey 1991, p. 12). Gobeyn explains that, as the 1980s and the ‘period of economic abundance ‘ to which corporatism is suited came to an end, and the new realities of ‘ slow economic growth, deindustrialisation and the continuing installations on shop- floors of labour-saving technologies’ began to impinge, corporatism became increasingly unnecessary (Gobeyn 1993, p. 20). The Accord lost its appeal to capital and to state agencies as market forces alone were now seen as able to achieve labour discipline and wage demand moderation. The late 1980s saw the end of the ‘macro-corporatist bargaining structure’ of the centralised, tripartite
185 structure in Australia. However, as with countries in Western Europe, corporatism as a political form did not disappear altogether (Gobeyn 1993, p. 3). Although corporatist ‘micro-political’ forms persisted in political bargaining concerning aspects of the new challenge of incorporating the formalised principles of ESD into policymaking in Australia (McEachern 1993), the agenda was now set by the reforms of neo-liberalism and the priorities of the market. Thus, as described in Chapter 4, the model of social organisation represented by the interventionist state is supplanted in the period traced by the history of this legislation. The interventionist state embodying corporatism shrinks to give way to the market and to ‘global thinking’. The processes of international harmonisation act as a bridge to this phase and demonstrate the code of instrumental rationality embraced by both the state and the multinational company in support of the development of the global economy. The next chapters examine the driving forces behind the double-pronged shift to the rhetoric of sustainable development and globalisation. The question of whether the failures in environmental management associated with the interventionist state can be remedied by a dismantling of the state in favour of the market is explored in the context of the global nature of the environmental challenge. It is argued that the demise of the EHCA (NSW) 1985, as it is taken over by the reforms of the 1990s, reflects a changing role for the state in this country over the last decade, with a shift away from the leadership role of the state, towards free-market forces. This shift is marked by both public-sector and economic reform, under the influence of the discourse of economic liberalism generated by a federal bureaucracy schooled in the neoclassical economics tradition (Pusey 1991 p. 5; Watts 1996, p. 61).
186 Chapter 6 The Disappearing State and the Politics of Individualism: Analysis of the Neo-Liberal Response to the Environmental Challenge … economic explanations, on the other hand, focus on the intentions of the agent, who chooses among alternative courses of action depending on the rewards promised by each one. Rational behaviour is motivated by the relative attractiveness of different alternatives rather than by internal regulation provided by values or dispositions (Chong 1996, p. 39). 6.1.0 The second phase of the environmental challenge: the neo-liberal response The response in NSW to the diverse and complex challenges of the second phase of the environmental problematic has been guided by the politics of the minimal state. Over the last decade, the EHCA (NSW) 1985 has been overtaken by the priorities of a new era of environmental management, as a new political philosophy has replaced corporatism. Over this period, policymaking on toxic chemicals has been characterised by the new measures of deregulation, devolution, privatisation and restructuring of the public sector. This chapter examines these policies in relation to the principles underpinning the concept of the individualist state. These include: the perceived ‘ungovernability’ of the interventionist state; the value of the efficiently operating market and of the activities of civil society compared to the state domain and the democratic process; the perceived importance of individual liberty; an economistic model of human nature and behaviour and a new perspective on the value of community and social authority. As previously discussed, these perspectives reflect the broad ideology of neo-liberalism, or the New Right, itself dominated in Australia by the public choice analysis as it is expressed in the prescriptions of economic liberalism (Head and Bell 1994, p. 37). On this account, the political system operates as a market place and the theory of economics applies naturally to environmental policy because it is to do with the rationing of resources. In this approach, efficiency in resource use is obtained by policies incorporating consumer choice and market-based incentives and regulation, designed to face consumers and producers with the ‘true’ value of their decisions. The observed legitimacy and administrative deficits associated with the new policy tools of this period are examined in this chapter in relation to the tenets of economic liberalism and public choice, as well as to other doctrinal elements of the
187 New Right constellation of ideologies. The chapter argues that tensions between the contributing elements of the New Right, other political prescriptions underpinning the minimal state and the ‘routinisation’ of environmental concerns into the rhetoric of economic liberalism have also contributed to the sustainability deficits. Although the analysis also points to aspects of public choice theory and of the ‘new’ conservatism that could have been applied to obtain better policy outcomes, the conclusion is drawn that the individualistic, anthropocentric and materialistic values underpinning the concept of the individualistic state stand contradictory to strong sustainability. As well, although economic policy tools can assist in achieving sustainability, the study indicates the need for appropriate state intervention and re- regulation, rather than market fundamentalism. The chapter concludes with some suggestions for institutional change which could have allowed such achievements. 6.1.1 The EHCA (NSW) 1985, public choice principles and the individualist state The history of the Act over the last decade highlights the underpinning agenda to deal with the perceived excessive intervention of the welfare state by subsuming the politico- administrative system to the functional requirements of the free market (Emy and James 1996, p. 13). As discussed in earlier chapters, by the late 1980s, a broad neo-liberal (or New Right) program, whose aim was ‘to substitute individual power for government power’, was developing in influence across Australia (Kelly 1992, p. 431). The election of the Greiner Government in NSW saw the advent of economic liberalism and the espousing of environmental property-rights (Kellow 1995, p. 257). Prominent neo- conservatives attempted to discredit green policies1, as leading environmentalists argued for a new perspective on ‘quality of life’, generating fear among the ‘wealth-creating industries’ (Kelly 1992, p. 525). In response to these opposing pressures, corporatist tactics were utilised to prioritise the economic status quo in the drawing up of the national sustainable development policy documents (McEachern 1993). Hence the needs of the market in the context of the global economy dominated the process of formulation of the National Strategy for Ecologically Sustainable Development. By the late 1980s there was a general trend in Australian governance towards the use of pro- market policies to achieve policy goals; the decentralised market was perceived as
1 Western Mining Corporation chief, Hugh Morgan, made statements over this period which attempted to ‘deny the legitimacy of green policies’ (Kelly 1992, p. 542).
188 enabling more efficient, accountable and effective policymaking (Davis et al 1993, p. 44). The demise of the EHCA (NSW) 1985 over this period, and the marginalising of centralised ‘cradle to grave’ chemicals control by the new political regime, flags the changing policy emphasis towards decentralisation, at both federal and State levels. As indicated in Chapter 4, the centralised policy instrument of NICNAS remains poorly resourced; the NRA is self-funded, while the NEPMs pass responsibility for enforcement to the States. At the State level, administrative, reporting and ecologically sustainable development implementation responsibilities in relation to pollution have been passed on to local government as a result of the WWMA 1995, POEOA 1997, the Contaminated Lands Management Act 1997, and the Local Government (ESD) Act 1997. The new measures for contaminated sites and amendments to the EHCA (NSW) 1985 itself have shifted responsibility to the private sector as a result of privatisation and accreditation initiatives. Market-based policy tools, such as user-pays, have been employed in each of these legislative reforms and promoted as a means of lessening the ‘burden’ of the environment by the transfer of functions to the private sector. They reflect the public choice concept of self-seeking individuals (or organisations) inevitably acting to maximise their own opportunities. The role of the state in the management of toxic chemicals in NSW, as instanced by the amendments to the EHCA (NSW) 1985, has also been limited through deregulation and devolution. Industry has been encouraged to self-regulate through such mechanisms as environmental reporting. Co-operation is the stated policy of the NSW EPA. Although they reflect the public choice priority of educated rational choice, community right-to-know measures such as the NPI, and the emphasis placed on education, have justified the emphasis on voluntarism reflected in the PEPs, and the lessening of such public rights as enforced disclosure, evident in the 1987 Amendment to the EHCA (NSW) 1985. According to public choice principles, the market is a better mechanism than the state at which to target emphasis in policy innovation, ensuring that it operates under optimum conditions of openness and decentralisation (Davis et al 1993, p. 174). Thus environmental problems result from market externalities, and can be addressed by manipulating market conditions. The moves to encourage cost-benefit analysis such as the production of the ENVALUE program by the NSW EPA is a characteristic policy
189 tool that draws on this theory. The case analysis also revealed the EHCA (NSW) 1985 as marginalised by new reforms incorporating market-linked incentives for pollution abatement and waste regulation. The shift towards market-based policy tools can be explained in more detail from the public choice perspective. The question raised is how should the state allocate the supply of public goods at a national or international level when uncompensated-for externalities, such as pollution due to toxic chemicals, exist. According to this theory, voters will not accord power to the state for dealing with environmental issues when this adversely interferes with issues, such as economic ones, which affect their personal well being (Weale 1992, pp. 40-42). Therefore, the state must depend on market-based policy instruments and tools. The agenda for reform of the environmental management of chemicals has thus included the restructuring of the market in public goods (Self 1985, p. 69), as sharing environmental management with the private sector opens up environmental goods to the principles of the market. From the point of view of public choice theorists, state intervention by way of regulation should diminish because market linked policies (such as cost-benefit analysis and load-based licensing) are the only way to motivate the self-restraint of the individual. In other words, collective self-restraint must be motivated by individual self-interest (Stretton and Orchard 1994, p. 249). The increasing emphasis on voluntary measures shown in recent policy changes in NSW over the last decade reflects a political agenda concerned with representing the rights of the individual. According to the public choice principle that the behaviour of organisations is that of the self-regarding egoist, such policies aimed at limiting the role of the state in favour of the individual organisation (by self-regulation), the community (by community right-to-know) and the market (by user-pays tools), allow more flexible and responsive decision-making. At the same time, they result in more freedom for the individual and the operations of the market. Drawing from the public choice picture of organisational behaviour, depoliticising initiatives have been introduced to strengthen political leadership. This strengthening is seen as necessary because the political system is regarded as a market for the demand and supply of public goods, such as the prevention of pollution. Hence the political actors and administrators will tend to overextend the state and the environmental benefits it provides to benefit their own interests.
190 Measures for depoliticising the environmental decision-making process were flagged by the EHCA (NSW) 1985 amendments decreasing public access to legislative rights in 1987, and have since included the voluntary PEPs, and the generalised terms for development consents under the IDA 1997 and the POEOA 1997. Such policies have diminished the political sphere in favour of the civic realm. The promotion of education for environmental awareness by the NSW EPA is another prong of this policy, as it functions to bring science in to assist the civic realm. A particular application of the concept of the social contract arises from the public choice lack of credence in the ability of majoritarian democracy, and of its administrative systems, to represent the individual. Public choice theorists are ‘contractarians’; as they essentially see the ‘location of value exclusively on the human being’ (Brennan and Buchanan 1985, p. 22). Hence: …there is no resort to any source of value external to the expressed preferences of individuals who join together in political community. The state does not emerge to protect ‘natural rights’. Nor does it reflect represent the working out of some cosmic force, some will of god or gods. More important, the state does not exist as an organic unity independent of the individuals in the polity. The state does not act as such and it cannot seek its own ends or objectives. ‘Social welfare’ cannot be defined independently, since, as such it does not exist’ (Brennan and Buchanan 1985, p. 23). The emphasis on co-operation with industry originates in contractarian principles: the individual organisation co-operates with the state, but in return, the right of the state to intervene in the affairs of the organisation is diminished. The social contract operates at both State and federal levels, underpinning the PEPs and the NEPMs. The powers of the state are restrained within defined limits by such measures. 6.1.2 The EHCA (NSW) 1985, public choice principles and the minimal bureaucracy Recent bureaucratic reforms also relate to the needs of economic liberalism for more efficient and effective forms of governance (Davis et al 1993, p. 43). Public enterprises are not seen to be as responsive to the customer’s needs as market forces; they allocate resources inefficiently because there is no financial incentive for the planners and they resist closure or rationalising when financially needed because more taxes can be extracted from taxpayers, whereas in private industry they would be forced to close-down. Unlike market forces, governments allow unnecessary and inefficient
191 activities to continue (Stretton and Orchard 1994, p. 80). Thus the context to the case study is set by co-ordinating initiatives at the federal level, such as the IGAE, and at the State level, by the PROTEA 1991 legislation. Co-ordination measures figure strongly in the program of economic liberalism. The underpinning concept, drawn from the public choice analysis, is of an individualist state, composed of unstable sets or arrangements of individuals. As previously described in Chapter 4, voluntarism has been institutionalised in NSW through the PEPs scheme, which allows standards to be set but not to be monitored. Devolution has also been progressed by local government being given more administrative responsibilities for pollution licensing and monitoring. According to the agenda, influenced by public choice principles, to provide individual choice through education and to emphasise the civic realm, self-regulation and administration by industry and by the community is facilitated by the expertise of science. A major prong of recent NSW EPA policymaking has been the allocation of resources for environmental awareness programs for industry, local government and the community. The shift to market-based policy tools and the devolution of administrative responsibility to the private sector are examples of the intention to remove responsibility from the bureaucracy and to harness individual economic motivations. The role for the state bureaucracy is framed by the ‘strengthened mode of system integration in which the burden of coordination is passed from the inferior medium of coordination of state bureaucracy to the supposedly better one of the economy’ (Pusey 1991, p. 18). Another public choice solution to the oversupply and distortion of public goods is to ‘harness the economic motivations of rational egoism to the pursuit of public policy goals’ (Self 1985, p. 74). The reform agenda of economic liberalism is geared to the promotion of competition between agencies and the use of incentives and penalties. Dismantling the bureaucracy by privatisation, as has been done with the waste and the contaminated lands reforms, has the effect that the government agency becomes one group amongst other pressure groups. Another demonstration of the public choice distrust of the instability brought about by the competition between the ‘incurably self-serving bureaucrats’ of the public sector organisation is the perceived need to restrain their potential for intervention by establishing some form of social contract (Stretton and Orchard 1994, p. 135). Thus the reforms of the new era for the bureaucracy were signified by PROTEA 1991: the
192 community was to be permitted more access to consultation forums and to knowledge about the environment. But the trade-off was the establishment of structural constraints upon bureaucratic intervention through less readily enforced disclosure agreements and the instigation of the market as the environmental manager. The reforms to the EHCA (NSW) 1985 itself in 1987 limited its public accountability and flagged a shift towards the establishment of a ‘contract’ with industry whereby industry was to become more self-regulating and, in return, the SPCC could make a chemical control order without notice and other secrecy provisions were lessened. In 1994, the terms of the contract were extended when the secrecy provisions of the Act were strengthened. Hence, too, the restructured POEOA 1997 legislation extended licence renewal time and thus traded co-operation for less accountability. Reflecting the perceived need that the extent to which such supervision by contract is dependent on the type of organisation (ie. economic or government), the new arrangements for contaminated sites and for accreditation of auditors have been established with apparently few watchdog provisions for the accreditation process. Thus government is seen as needing to draw upon stronger social norms and sanctions than do business organisations (Self 1985, p. 62). From the public choice perspective, the administrative arm of the state should only be involved to correct externalities associated with the unfettered market. The new emphasis placed on the market as the environmental manager is expressed in the drive to efficiency through restructuring of the bureaucracy by rationalisation and consolidation. This accords with the agenda to allow greater Ministerial control and thus straighten political leadership at the expense of the administrative arm of the state. The rationalising measures allowed by PROTEA 1991, by POEOA 1997, and by the contaminated sites and waste reforms demonstrate this policy shift. Priority has been given to legislative reforms that could readily fit with the agenda of this political program. Arguably, toxic chemicals reform has been marginalised because rationalising in this area would require more dependence upon centralised and bureaucratic controls. The preferred policy of voluntarism clearly failed as a policy for chemicals notification in the 1980s. The lack of emphasis on chemicals as pollutants in this second phase reflects the difficulty this political regime has in pushing chemicals responsibility further into the civic realm. Not only is workplace control of chemicals already based
193 on self-regulation, but the notification and assessment of chemicals requires resources committed to centralised centres of publicly funded expertise. Interpretations based on the concept of individual rational choice analyse environmental policy formation as being controlled by the producer groups, while at the stage of policy implementation: …firms have an incentive to resist profit reduction, and provided that the choice of policy instruments allows, they will exploit opportunities to weaken the impact of a regulatory regime. In particular, they will exploit technical complexity in order to soften the blow of regulation (Weale 1992, p. 46). Unwillingness to regulate is seen as ‘natural’ behaviour for the public sector organisation such as the NSW EPA. It must be given less authority by the devolution of authority and by establishing co-operative policies with industry. The role of the NSW EPA over this period has to some extent been replaced by a system of markets, with the tendency for the NSW EPA to take up a new role as an overseer. For instance, with the new legislative arrangements for contaminated sites, the private sector is brought in through the accreditation of auditors, and the NSW EPA is relegated to the role of overseeing the contract. The load-based licensing scheme introduced through the Pollution Control Act also requires the state agency to take an overseeing role. 6.1.3 The EHCA (NSW) 1985, public choice principles and the democratic process For the public choice theorist, the democratic process is the method by which policy makers reduce the costs of compliance. Policy makers create quasi-voluntary compliance by manipulating the nature of the collective goods that policies represent: by creating credibility through pre-commitment strategies and through establishing institutions that promote conditional cooperation; and by providing assurances through information and coordination that other citizens are engaged in a strategic and dynamic interaction (Levi 1990, p. 143). Thus policy initiatives of this second period have involved less emphasis on the prevention of ‘invisible’ pollution associated with toxic chemicals, and more on the management of air, water and waste pollution. The latter measures are more likely to achieve the desired credibility. Assurances of citizen ‘interaction’ have been provided through the emphasis on education programs and community-right-to-know measures, promoted as a means of whole-of-community involvement. The subjective nature of valuation is another tenet of public choice, underpinning the programmatic principle
194 that the individual must have full and adequate information on the environment in order to behave rationally. The public choice analysis and the economic liberal agenda is based on the premise that interest groups act like the individual; in that they act to maximise only their own benefits, not on behalf of the collective good. Public choice theory thus challenges majoritarian democratic theory, questioning the adequacy of this political form as a basis for transferring mixed preferences into collective action (Buchanan 1989, pp. 75-76). Accordingly, the case study reflects a tendency over this second period of policy reform to shift environmental decision-making into the civic realm. Drawing from the public choice analysis of the perverse nature of decision-making characteristic of representative democracy, the consumer and the market now replace legislated participatory rights and state regulation. Public participation is now to be achieved outside the realm of parliamentary democracy by means of partnerships between the state and various sectors of society. The further implication is that politicians must be brought under the closer control of the political market (Self 1985, pp. 69-71). Hence increasing public participation improves the quality of governmental output: What is valuable, to be sure, is not just any participation-for example voting- but discussion, debate, organisation for political purposes, and all that contributes both to the education of citizens concerning the issues surrounding policy decisions and to voter influence on policy (Pennock 1989, p. 34). This version of populism is the justification for the shift in responsibility to local government and for the community right-to-know measures targeted to the individual. The depoliticisation of the management of toxic chemicals is another aspect of the democratic process targeted by the public choice reform agenda. The approach used in these recent reforms depends on minimising and decentralising the role of the state so that market forces will be liberated and decision-making depoliticised (Eckersley 1995a, p. 15; Jacobs 1995, p. 60). Choosing co-operation rather than coercion, as has been done with the PEPs, and the encouragement of voluntary codes of practice, also tends to depoliticise environmental management. Statements of intent, rather than standards, dominate the policymaking of this second era of reform. The adoption of the policy priority of deregulation is associated with increased mechanisms for social choice, operating outside the realm of parliamentary democracy.
195 6.2.0 Neo-liberal political prescriptions and sustainability Political understandings based on the concept of the overloaded state are now challenged by the requirements of sustainable development, which has moved into the rhetoric of governments around the world (Dryzek 1998, pp. 123-128). Chapter 5 explicated the sustainability deficits of the corporatist state as it confronted the challenges of the first period of the environmental problematic. As the conditions of the second environmental problematic have become evident, the mainstream political parties in Australia have taken on the rhetoric of a more ecocentric theory of value. However, in Australia, as in other developed countries, many of these ‘green’ aspects to policy reforms are proving toothless (Goodin 1992, pp. 96-108; Stein and Mahoney 1997). Borrowing from the green agenda has been only ‘piecemeal’ (Harding 1998, p. 241) and the discourse of sustainable development has been largely interpreted in terms of sustained economic growth. This chapter argues that the adage has remained that of maximising human satisfaction, readily appropriated into the broad reform agenda of neo-liberalism. The following sections explicate the sustainability deficits associated with the neo-liberal response to the environmental challenge. As the most coherent set of principles informing the shift to the individualist state, and as the most influential of the theories of the New Right in Australia (Head and Bell 1994, p. 37), the major focus is on public choice theory. The observed sustainability deficits concern its reliance upon individualism, the effects of administrative fragmentation, and the priority given to the concept of the political market place. Other theoretical elements of the neo-liberal constellation are also critiqued in relation to the incorporation of sustainability themes. The section concludes with some suggestions concerning non-programmatic barriers to sustainability which are drawn out by the case study. 6.2.1 Public choice principles, the individualist state and sustainability …in policy terms the Liberal economic rationalists had tended to put efficiency before fairness. This was understandable since they were attempting to cut back government intervention, revive individual and private sector dynamism, and secure more effective and productive results. Their claim was that the best way to lift the living standard of the lowest was to boost the overall size of the economic cake (Kelly 1992, p. 432). As discussed, by the late 1980s in Australia, these priorities of economic rationalism and economic liberalism had not only deeply influenced the Liberal Party but had also
196 imbued federal government departments (Pusey 1991). Assisted by the alliance between neo-conservative and resources industry interests, these priorities were to influence policymaking at all levels of government across Australia over the next decade. The economic liberal prescription that the function of the state is to facilitate improved market functioning resonates with the Brundtland Report interpretation of the role of the state: The role of public policy is to ensure, through incentives and disincentives, that commercial organisations find it worthwhile to take fuller account of environmental factors in the technologies they develop’ (World Commission on Environment and Development 1987, p. 60). Implicit is a changing perception of the state and its relationship to the market. The state becomes only a supporting institution in relation to the economy. In other words, its function is to facilitate development, where development is understood as economic growth (Dryzek 1997, p. 125). Sustainability is understood from the economic perspective of the potential for ongoing growth and the environment is justified as an economic issue. Led by federal policy, the role of the state in policymaking on toxic chemicals in NSW has drawn from the public choice principle of diminishing the role of the state in relation to the economy (Jaensch 1992, p. 422). This principle is supported by all elements of the New Right. Hence the agenda of the individualist state is in opposition to the strong steering role for the state required to develop sustainability initiatives and process changes (Norwegian Ministry of the Environment 1998, p. 3). On the public choice account, the methods of economics should be able to be applied to political problems and the issues of collective action (Davis et al 1993, p. 174). This is an essentially anthropocentric understanding. According to this economistic model, the rational actor will not willingly supply the public good of environmental protection spontaneously without incentives. The state is therefore assigned the limited role of modifying markets by centrally deciding on the value of environmental services, then organising the incorporation of this value into prices by means of market-based incentives (Pearce et al 1990, p. 154). Load-based licensing and other user-pays tools in recent policymaking have, however, demonstrated administrative deficits. The large administration fee indicates sustainability criteria in
197 relation to equity are not being met. Expanded, rather than less, state capability is required because of the difficulty in assessing environmental value. However, the case analysis has shown that the use of economic policy instruments by the NSW EPA is equivalent to the ‘minor tinkering with economic instruments’ identified by Pearce as associated with ‘ultra weak sustainability’ (Pearce et al 1993, p. 186). The study shows the NSW EPA legitimating a short-term anthropocentric perspective on the environment, which is driven by the neo-liberal dictum of the need for economic modelling and economic efficiency, rather than by intergenerational equity concerns. This is illustrated by the increasing emphasis placed on cost-benefit analysis. Cost benefit analysis incorporates the principle of discounting the future over the present; espoused because the later a cost or benefit occurs, the less it matters (Pearce et al 1990, p. 132). Cost benefit analysis must be associated with sustainabiltiy deficits because it is unable comprehensively to deal with changing environmental values over time, and anyway, it cannot discriminate effectively for periods longer than 15-20 years.2 The focus on economic efficiency explains the observed lack of commitment in NSW to achieving sustainable development through process change geared to pollution prevention. The recent legislative initiatives such as POEOA 1997 and the IDA 1997 emphasise restructuring to allow more economically efficient operations rather than encouragement of process change so as to reduce pollution. POEOA 1997 maintains the norms of the earlier phase of licensing to pollute. This position contrasts with the ecological perspective where efficiency gains are not seen as able to overcome the fact of assimilative capacity or the limits to a resource.3 The voluntary nature of the PEPS and the NEPMs and the associated refusal to expand state functions by criminalising pollution has resulted in a sustainability deficit because it implies substitution possibilities are infinite. It also undermines the attitudinal change required for changing valuation of the environmental in line with the principles of sustainability. The public choice analysis is associated with normative notions of efficiency and individual liberty (Emy and James 1996, p. 12). The period has seen attempts to
2 From the economists’ point of view, any manipulation of discount rates such as to give special social discount rates for environment related investments do not reflect the actual economic situation as they do not include appraisal of the alternative investments (Schaltegger and Muller 1998, p. 96) 3 If this viewpoint had been taken, for instance, a carbon tax would have been seen as inevitable (Common 1995, p. 36).
198 initiate public participation, but in accordance with the terms of the social contract and consumer choice. Despite differing interpretations, sustainability has introduced new sociopolitical values, some not necessarily linked to human interests, for consideration by public policy (Common 1995). Such values as equality and community that underlie sustainability are in opposition to those of economic efficiency and individual liberty or freedom to choose. A focus on economic efficiency reflects the priority of continued economic growth for the consumers of today (Allenby 1998). Furthermore, the devolved state must rely on co-operation with industry and partnership agreements. The implementation of such arrangements involves an emphasis on the ‘consumer-based theory of value’, corresponding to consumer satisfaction, rather than a ‘green’ theory of value, corresponding to natural resource inputs (Goodin 1993, p. 23). Thus the primacy of the economic policy objective, inferring that the possibilities for substitution are infinite, and which diminishes the state in preference to the market, is underpinned by the leading principles of public choice theory. The distinctive arguments for strong sustainability, giving value to the environment as a resource, have been marginalised in favour of efficiency statements. The state has adopted a managerial and resource conservationist stance and rhetoric, but the management has been driven by the reforms required for optimum functioning of the market. The context of the POEOA 1997 and its policy on pollution has been set by the need for restructuring to allow more economic efficiency and the smoother passage of development consents through the IDA 1997. This places recent environmental policy in NSW at the ‘technocentric’ end of the ideological spectrum, associated with very weak sustainability (Pearce et al 1993, pp. 18-19). Hence the public choice analysis and the prescriptions of economic liberalism are underpinned by the resource exploitative, growth oriented position of very weak sustainability, where the possibilities of substitution for natural capital are seen as infinite (Pearce et al 1993, p. 18). A major failing of the public choice position on the free market, in relation to intergenerational and intragenerational equity, is that it confuses political liberty with market freedom. Since government is only justified in intervening to protect the environment by correcting for market failure and not to facilitate the collective purchase of a public good (Brennan and Lomasky 1989, pp. 6-7), it can only initiate voluntary standards or guidelines, such as the PEPs. The case study indicated that refusal to set standards and approval of voluntarism in NSW has led to a new uncertainty concerning
199 the retributive role the state should play in correcting for the negative aspects of the free market. We see the devolution of responsibility to the local level of government and to the community, at a time when neither sector is adequately resourced nor possessing the expertise to address the new challenges. Without parliamentary surveillance, this initiative represents a position on the sustainable transition map of ‘ultra weak sustainability’ (Pearce et al 1993, p. 186). The case study shows many examples of devolution which are intended to progress depoliticisation. From the public choice theorist’s point of view, ‘structural imperfections’ in the political system allow the decision-maker such latitude to avoid constituent disapproval. The amalgamation of this analysis into the neo-conservative program has implications for sustainability criteria in relation to equity and participation. The overall shift in responsibility for pollution management in NSW to local government effectively shifts decision-making to less visible parts of the political system. Accountability and accessibility concerning the licensing of discharges are undermined. From this perspective: It is little wonder that that the economist’s prescription of residuals charges has generated modest political appeal. It goes against all of these tendencies. Establishment of a charge system in conjunction with environmental quality standards would resolve most of the political conflict over the environment in a highly visible way where those who would be hurt by such a policy would see what is happening. It is just such open and explicit choices that policy makers seek to avoid (Freeman, Haverman and Kneese 1973, pp. 169-170). The NSW EPA is a statutory body, but it is evading accessibility through using conciliatory approaches such as negotiation on licences. Adopting self-regulation as a principle is also a means of avoiding confrontation. In summary, the conciliatory attitude of the state agencies (the SPCC in the late 1980s and the NSW EPA in the 1990s) recorded by the case study, the marginalising of the management of toxic chemicals and the prioritising of the devolution of the state over new policies and incentives to prevent pollution, can be explained from the public choice understanding of the workings of the pluralist political system. If policy makers and bureaucrats are taken to act rationally act in their own interest, they will search to implement ‘policies whose costs are hidden or can be shifted to less influential elements of their constituencies’, and ‘they will postpone and avoid costs associated with
200 decision-making by shifting responsibility’ (Freeman, Haverman and Kneese 1973, p. 167). 6.2.2 Public choice principles, restructuring and sustainability The case analysis lends support to the argument that political programs derived from economistic models, such as economic liberalism, have no means of dealing with the complex interactions of natural systems. The difficulty in assessing comparative environmental costs causing the administrative deficit apparent in the establishment of the load-based licensing system reflects the ‘mechanistic metaphorical structure’ of such programs (Dryzek 1997, p. 118). Moreover, from the bias towards the economic market model in public choice theory arises a picture of public sector incompetence and self-interest (Self 1985, p. 62). The context to the regional study is set by federal policy on chemicals management and pollution policy which reflects this viewpoint. The differential interpretation across the States of chemical pollution requirements is possible because of the non-prescriptive nature of the NEPMs, a result of constitutional provisions and, in this instance, of federal determination to decentralise and deregulate, policies underpinned by this perspective on the bureaucracy. The passing of PROTEA 1991 established the basis for the bureaucratic restructuring of the period in NSW. The bureaucratic administration of toxic chemicals has subsequently been restructured by means of such legislative measures as the Waste Management Act 1995, POEOA 1997, and the Contaminated Land Management Act 1997. As between the individual on the one hand and the market on the other, these measures each set the market as the mechanism and the arbiter of pollution management and the administering of public goods. The issue for sustainability is that the ecological implications of failure to prevent pollution from toxic chemicals do not result from the intentional and rational choice of one individual or of the one organisation. Such long- term damage, particularly as regards pollution problems, results from the ‘tyranny of small decisions’, and is encouraged by the neo-conservative trend to push decision- making and administration of the environment to a lower level (Odum 1998, p. 222). Sustainability requires local participation, but also an overall management plan for integration in order to avoid long-term environmental costs. Decentralisation has also occurred in NSW through the recent raft of policy reform, but with the exception of aspects of the waste reforms, no attempt has been
201 made to legislate for co-ordinated administration across local councils. The political commitments of neo-conservatism have prevented the devolution to local government being accompanied by measures ensuring uniform standards or preventing cumulative pollution. With the exception of waste, no provisions have been made to facilitate the development of regional agreements for methods of pollution prevention targeted at cumulative pollution. Privatisation initiatives, such as incorporated into the waste and contaminated lands reforms, and the associated reliance upon contractual arrangements have implications for the free flow of information and the consequent lack of the holistic perspective (Christoff 1998), required to ensure resource preservation on behalf of intergenerational equity (Pearce 1993, p. 18). All such measures have the potential to lower the ‘integrative capacity’ required for effective regional and cross-media pollution prevention (Christoff 1998). The transfer of pesticides administration to the NSW EPA is a notable example of the public choice prediction of corporate capture bringing about reform of the bureaucracy. However, there is tension between the stated policy of co-operation and an agenda to alleviate corporate capture. Cooperation between the state agencies and the agricultural chemicals and agriculture interests has only consolidated a specialised and inward looking policy community, resistant to policy innovation and the implementation of more stringent control on chemicals. Hence the inadequate control of agricultural chemicals in NSW remains a source of social contestation after two decades of environmental policy reform, still a source of risk for now and for the future. Efficiency criteria determine the public choice reform agenda for the bureaucracy and have thus driven policy reforms over the last decade. Such criteria may not address sustainability needs (Common 1995, p. 227). For instance, the restructuring measures of POEOA 1997 have been driven more by administrative convenience than by ecological rationality. POEOA 1997 remains a licence to pollute. Pollution prevention is not empowered by this legislation, as this would have required more centralised planning and state-initiated activities. Further deficits in relation to intergenerational equity arise because there is no emphasis on the integrated ‘cradle-to- grave’ approach either through the establishment of ‘superagencies’ or by integrated policy consideration across departments. Efficiency is measured in terms of certainty and quick decision-making, not in terms of the type of efficient resource use required for strong sustainability. Thus the
202 restructuring process of the POEOA 1997 and IDA 1997, carried out with the stated aim to increase efficiency, has made the ecologically sustainable development requirements for development approval and pollution management much more general. Such general criteria cannot ensure the ecological stability demanded by strong sustainability (Wills 1997, p. 10). In a similar vein, while PROTEA 1991 allows for the consideration of ecologically sustainable development principles in NSW, there have been criticisms of the difficulty in enforcing such non-specific principles (Stein and Mahoney 1997). As a result of devolution, administrative responsibilities are now divided according to the level of government. The hierarchy of control between federal, State, and local government is increased as a result of the IGAE and its co-ordination policy, and the legislative reforms such as POEOA 1997. The rhetoric of ‘integration’ and ‘economic instrument’ may have been incorporated into legislation, but these terms in the context of sustainability criteria mean more than the merging of four pieces of legislation into one. For ecological rationality and strong sustainability, new initiatives are required to: …respond effectively to negative feedback, co-ordinate across all system boundaries to prevent problem displacement, and to be flexible and resilient in order to cope with unexpected changes (Eckersley 1996, p. 103). Overall, the application of public choice theory by the economic liberal agenda explains its lack of support for bureaucratic structures that could aid in large- scale planning, regulation, co-ordination and the setting of standards. The rational self- seeking actors employed by such structures would on the one hand see potential personal benefit from a close relationship with industry. This perspective explains the unwillingness to trust the selfish bureaucrat with more resources, bound as he/ she would be to empire-build with resources. The complementary ideology of neo-liberal, deregulatory economics precludes the spending of resources. Process innovations are not encouraged, as the rational egoist would only see them as tax burdens for themselves. Each of these policy platforms is associated in the case study with sustainability deficits in relation to costs for the future generations, to the appropriate calculation of environmental value and to local and community participation in environmental decision-making.
203 6.2.3 Public choice principles, the political market place and sustainability The major implication of the economic liberal agenda for the co-ordinating mechanism of the democratic process is the need to bring the individual voter into closer contact with the details of the political market place. In the context of the case study, the result of such related initiatives as the NPI and community right-to-know measures as State of the Environment reporting is intended to be a public more aware of environmental risk. This has become an issue of legitimacy and social stability, given that the economic priorities and alliances of this political regime lean towards a view of sustainability which gives nature value only in terms of human use (Harding 1998, p. 65). The public choice perspective is that the right-to-know measures enable the ‘citizen interaction’ promised in the social contract as the trade-off for depoliticisation measures such as less accountability or legislated disclosure. In this context, the technologisation of environmental problems is a cause of tension, with such technical and quantitatively denoted environmental reporting and monitoring not fulfilling community participation criteria. State of the Environment reporting, for instance, has been criticised for giving more weight to quantitative factors because they appear more precise (Ramsey and Rowe 1995, p. 86). Legitimacy problems, resulting from the process of decision-making being judged as unacceptable (Goodin 1992, p. 23), have arisen concerning the way in which the restructuring decisions have been reached. The perceived betrayal of environmentalists and public interest groups by politicians during the consultation process leading up to the passage of POEOA 1997 puts the public participation discourse into the ‘consultation exercises’ category associated with ultra weak sustainability (Pearce et al 1993, p. 186). A similar conclusion can be drawn from the results of the mediation initiatives. The voluntary, self-regulatory principles espoused by the NSW EPA do not ensure the necessary socio-economic equality within the decision-making units so that the public is given the sense of political efficacy needed for the motivation to participate (NSW Cabinet Office 1998). Depoliticisation of such decision-making leaves it vulnerable to resource differences and to political imbalances in terms of leverage. There is further tension between the essentially competitive understanding of human nature espoused by public choice theory and sustainability
204 principles. Implied without analysis is a perceived hierarchy between humans and nature and an instrumental value accorded to nature (Dryzek 1997, p. 113). As Pusey has argued concerning the influence of the ‘economic rationalist’ on Australian policy-making: …the new reformers use their new concept of system to shift the co- ordinating burden of society, including the environment, to the market and away from the state and its administrative arm. The legitimation and motivation crises of the overburdened state become mere illusions, to be sorted out through the rational, selfish, market-like behaviour of individuals (Pusey 1991, p. 207). Indeed, problems of credibility and issues in the development of community-based norms have been observed in the case study because environmental policy initiatives are steered in the neo-conservative agenda according to traditional ethical reasoning. The individual contemporary human is the prime consideration rather than the ‘caring for others’ motive essential for the shift away from very weak sustainability towards weak sustainability (Pearce et al 1993, p. 18). The principles of individual preferences of the market and of competition underlying the public choice analysis are not conducive to the formation of these community-based norms. Given that the Australian public is notoriously distrustful of the elected politician (Jaensch 1992, p. 428)4, the bureaucratic restructuring to diminish the bureaucratic presence between the individual and the politician also has implications for social stability and the process of representative democracy. Thus lack of trust and a sustainability deficit in relation to the development of community-based norms arises from the fact that neo-conservative mechanisms to increase social choice and social learning challenge the priorities, espoused by the same political program, of economic efficiency and administrative technocracy (Torgerson 1990b, pp. 17-33). The complexity and diversity of environmental issues and environmentalism as a social and political movement require an inclusive democratic process which goes far beyond the establishment of a market place for the consumer. 6.2.4 Other political prescriptions and sustainability Despite these limitations of the public choice analysis and economic liberal agenda in relation to sustainability, the deficits observed in this second phase cannot simply be ascribed to the incompatibilities between the rational egoist approach and strong
205 sustainability principles. A more nuanced interpretation is that a range of factors have contributed to the policy failures described in this second phase of the study. The recent policy measures and implementation failures reflect some ‘fuzzy boundaries’, tensions within ideological camps and some resonance between seemingly opposing ideologies. Other elements of the ideology of neo-liberalism have contributed to the policy failure, but also offer some positive suggestions to the political predicaments associated with the environmental crisis. With all elements of neo-liberalism, a pre-occupation with individual rights allows the particular firm, having allowed it support in order to educate itself for environmental responsibility, to weave its own path between paying dearly for high pollution rights or installing new equipment and reducing them. Whilst such a system may be conducive to alleviating pollution in the short term, it does not support the long- term aim of an ethical appreciation of the value of the environment necessary for strong sustainability. Responsible attitudes are essential to achieve sustainability criteria. As Dryzek points out, what is missing from the economic rationalist equation is any concept of ‘active citizenship’ (Dryzek 1993, p. 114). However, the ‘philosophic conservatism’ of recent re-interpretations of the work of Burke looks to the renewal of civic society, to precaution and to the assurance of embedded practices as a major theoretical framework to enable due consideration to be given to both the past and the future (Giddens 1994; Giddens 1998). Although not examined in this case study, the various Landcare initiatives may reflect some of this grass-roots ‘ecologism’ (Smith 1998) developing in Australia. Certainly the tension between the more conservative strand of neo-liberalism and the NSW EPA, with its rhetoric of the market, and of de- regulation and co-operation with industry, showed up in the case study. The study told of the extreme mistrust expressed by rural communities at the efforts of the agency to control the effects of toxic chemicals used in the cotton industry. As Offe argues, both neo-conservatives and environmentalists have been customarily associated with anti-statism, although for differing reasons. Deregulatory policies insulate the political from the nonpolitical. The neo-conservative project shares this insight with environmentalists:
4 In 1998, a survey found that 49% of the Australian public thought that people in government are only interested in themselves (Jaensch 1992, p. 428).
206 The conflicts and contradictions of advanced industrial society can no longer be resolved in meaningful and promising ways through statism, political regulation, and the proliferating inclusion of ever more claims and issues on the agenda of bureaucratic authorities (Offe 1985, p. 820). However, the neo-conservative interpretation has traditionally had negative implications for sustainability. Such anti-statism has been seen to be located in the comparative importance attributed to the perceived foundations of civil society such as the market and scientific truth (Offe 1985, p. 820). In the late 1990s, with the influence of economic liberalism and market fundamentalism so dominating the neo-liberal camp, there are signs that this ‘coalition’ may be fragmenting around the cause of the new ‘ecologism’. For example, the long-term alliance between industry and government is evident in the policymaking on agricultural chemicals and has prevented policy reform in relation to the regulation of pesticides. Indeed, progress towards sustainability would have been facilitated by a more stringent application of public choice principles to address the ongoing agency capture by the agricultural chemicals industry. The failure to reform pesticides policy may also be a measure of tension between the conservative and economic liberal factions of the supporters of the individualist state (Giddens 1998, p. 15). Congruence between differing ideologies influenced the case study and had implications for sustainability. For instance, many environmentalists, as well as economic liberals, support market-based measures drawn from the techniques of environmental economics, and are opposed to state intervention (Kellow 1995, p. 259). The long-term relationship between the state and development interests in Australia, described in earlier chapters, is a factor contributing to this resonance between ‘green’ and economic liberal factions. As discussed, cost-benefit analysis is currently promoted in NSW EPA reports and through the Envalue program. Shadow pricing the effects of public decisions and the side effects of private ones is a standard aspect of the agenda for the individualist state that is derived from neo-classical economics (Self 1985, p. 75) and expressed in the prescriptions of environmental economics. In that way, the rhetoric of economic liberalism has been ‘routinised’ into environmental policymaking.
207 Environmental economics uses this technique in the design of appropriate taxes and subsidies so that the externalities, such as chemicals pollution, can be treated (Pearce et al, 1989, pp. 51-55). Load-based licensing also relates to the market principles of environmental economics and is dependent upon relating environmental worth to monetary values. The limitations with methods of contingency and monetary valuation in relation to intergenerational equity and maintenance of natural capital have been identified. This does not mean that these tools, such as cost-benefit analysis and load-based licensing, cannot be used sensitively to facilitate greater public and corporate awareness of environmental value. However, this chapter has already argued that the application of such policy tools in the context of the political climate of economic liberalism is unlikely to allow a move beyond weak sustainability. Importantly, full environmental valuation requires state support in terms of special taxes and offsets and the setting of stringently enforced environmental standards (Christoff 1998, p. 24). Although public choice analysis has directly influenced policymaking in NSW through its application in the tenets of economic liberalism, the case study illustrates the extent to which environmental policymaking in NSW reflects the broader priorities of the ‘contract’ state. These include: accountability, empowerment of consumers, the paring back of government, a preference for market mechanisms, and the adoption of business-like methods for managing the public sector (Painter 1997, p. 152). This trend cannot be reduced to the influence to public choice theory alone. The broader political philosophy of libertarianism takes the contract of mutual advantage as a key aspect of the relationship between state and society (Kymlicka 1990). In essence, however, the contract is another form of property-right. Property-rights may be a suitable tool to manage aspects of the environment, but must be supported by institutional reforms to encourage attitudinal change.5 In another example, the introduction of the concept of tradeable pollution permits is a strong plank in the free market environmentalism platform which emphasises the promotion of innovative technologies (although a truly free market approach would require property rights to the disposal medium which is not yet
5 The influence of certain individuals must be taken as a factor in the reforms. The current Premier of NSW, Bob Carr, has been advised by Gerry Gleeson, who was also close to the leading economic
208 possible) (Anderson and Leal 1991, pp. 144-150).6 The principles of this radical offshoot of both public choice and libertarian theory underscore the problem such individualist theory has in incorporating sustainability criteria. Free market environmentalists criticise sustainable development as a notion of discipline, requiring political and bureaucratic regulation to control consumers, producers and economic growth, and entailing dependence on experts (Anderson and Leal 1991, p. 172).7 Hence although public choice theory, as with other aspects of the neo-liberal political theory, has fundamental inadequacies as the basis of political programs by which to address sustainability criteria, this conclusion must be qualified by the observation that many of the policy tools deemed necessary by the economic liberal prescriptions drawn from public choice analysis are also favoured by those espousing concern to give more valuation to the environment. Moreover, elements of neo- liberalism supporting community development may work together with environmentalists in a new political philosophy which departs from the precepts of both public choice and social democracy or corporatism. It is important to make the point that environmental management is not alone as an arena of state management which challenges public choice theory in relation to its normative assumptions concerning the behaviour of the public as opposed to the private sector (Head and Bell 1994, p. 37), and its inability to deal with the development of social norms and values (Self 1985, p. 190). 8 But the picture which emerges from this study is that the appropriation of public choice rhetoric to environmental policy reform in NSW has raised new arenas for redress. The sustainability deficits perceived in
rationalist reformer of the early 1990s, Nick Greiner. Greiner and Gleeson were ardent supporters of property rights and of environmental economics (Humphries 1997, p. 9). 6 These writers support their argument with the high costs of the current water pollution policy USA (since 1972 $300 billion in 1984 dollars have been spent for water pollution control) (Anderson and Leal 1991, p. 142). Another example is quoted as the operation of Superfund, where studies have identified more than a thousand specific point sources of toxic wastes. According to the free market environmentalism approach, the problem with requiring that all the sites should be cleaned is that this ignores costs and benefits (Anderson and Leal 1991, pp.148-149) With Superfund dollars available for cleanup the price tag is expected to increase at least the extent it did between 1980 to 1986 (ninefold) (Anderson and Leal 1991, p. 149). 7 From this perspective, the lack of commitment to sustainable development should improve environmental quality; raise living standards, and expand individual liberty. Expecting that a ‘Green Government’ will take over and ensure the principles of sustainable development are maintained is based on the false premise that bureaucrats and politicians are not largely acting out of self-interest (Anderson and Leal 1991, p. 172). 8 The American experience concerning public sector reform may be very different to the Australian. Davis points out, for instance, that a parliamentary system may face fewer principal-agent problems and thus have less need to correct for errant bureaucrats (Davis 1996).
209 particular reference to public choice theory relate to its deterministic perception that human behaviour is based on self-interest. It cannot imagine an idealism or a belief that true sustainability must relate to preservation of natural capital for the next generation. It shares this major deficit with other analyses of the individualist state. However, aspects of the public choice analysis and of the ‘new’ conservatism are indicated which could result in some progress towards sustainability, if followed through into institutional reform. 6.3.0 Summary: sustainability and the challenges for neo-liberalism The history of the EHCA (NSW) 1985 charts the neo-liberal policy response in NSW to the second phase of the environmental challenge in terms of a further failure of the liberal democratic state to address sustainability criteria. The tenets of public choice, strongly influential upon the leading programmatic element of neo-liberalism, cannot encompass the non-material, holistic nature of the ecological problem, nor can they incorporate the concepts of community and equality necessary for the development of a custodial policy on the environment. In this second era of the environmental problematic, the new issues of sustainability criteria posed for corporatist governance in NSW in relation to the holistic nature of the biosphere have been compounded by an increased public perception of environmental risk. The increase in the steering capacity of the state seen as a priority by the corporatist model by which to achieve economic growth has been dismantled in favour of the decentralised market and voluntarism. Self-regulation and co-operation have been effectively used in the Netherlands to internalise new norms of environmental responsibility and management and hence production changes (Weale 1992, p. 177). However, this study indicates the extent to which such partnership policies need to be backed by resources and an integrated planning capacity if they are to achieve public participation in lieu of parliamentary representation. A political culture that emphasises the rights of the individual to make autonomous decisions is not likely to develop holistic perspectives and to ensure the ‘global’ view necessary for complex environmental management. As a result of the public choice distrust of any dependence upon group norms or solidarities, recent policy initiatives have given little recognition to the need for establishing public trust or the establishment of community-based norms.
210 The outsiders of the ‘community’, whose concerns were not addressed by the corporatist model, are now given information and responsibility, but not the power to achieve the change away from the values and commitments of the market and the global economy towards the achievement of true community-based management. This time informed by the principles of public choice theory and other individualist theories; again the liberal democratic state has shown itself unable to bring environmental value into the equation and to address the equity considerations of environmental risk. The public choice analysis does not incorporate sustainability criteria because of the emphasis on the market and the individual. Moreover, it does not have the analytic framework by which to assess the need for legitimacy and social stability, essential to establish community-based norms and participation in the transition to sustainability. The analysis of the study has indicated, however, that an elements of the new conservatism, ‘philosophic conservatism’, have some resonance with sustainability and the development of strong community-based practices (Giddens 1998). Tracing the history of the EHCA (NSW) 1985 through this second phase has highlighted the inadequacies of the response in NSW in relation to this challenge. Governed by the broad agenda of neo-liberalism, restricted by the tenets of public choice theory and economic liberalism, the response has been to devolve responsibility to the private sector, to an individualised or rationalised community and to local government. The shift has been supported by the global re-ordering away from state control towards ‘entrepreneurship’ (Yergin and Stanislaw 1998, p. 10). The shortfall of the neo-liberal agenda in relation to the achievement of sustainability illuminates the institutional change required to address sustainability criteria and to shift environmentalism from the activist arena to process change. 6.3.1 Re-regulation The events of the case study over this period reflect the battle of confidence between the ‘commanding heights’ of the state and the market, carried on in each policy domain (Yergin and Stanislaw 1998, pp. 387-388). However, sustainability issues centre on establishing environmental value beyond that of an instrumental nature for contemporary human individuals (Pearce et al 1993, p. 18). The expanded state functions required to deal with the issues of environmental value according to user-pays and other incentive mechanisms illustrate the need for continued regulatory support of the market.
211 A major deficit highlighted by the case study over this second period associated with the public choice principles of voluntarism and depoliticisation has been the need for more state support in terms of devolved decision-making structures, whether they are community, market or local government. The observed sustainabiltiy deficits derive from the fact that public choice theory itself offers no solution to its analysis that governance is unworkable and political order impossible without state intervention. As Dryzek points out: When it comes to environmental affairs, if everyone is a rational egoist, then the commons will always be abused, polluters will continue to generate externalities, and government will do absolutely nothing to remedy the situation (Dryzek 1993, p. 119). Delegation of authority by the state on environmental matters thus requires backing up by re-regulation, supervised from new and more decentralised authorities. Re-regulation is required to ensure process change, including a change in production towards more sustainable industries, and to ensure integrated and co-ordinated policymaking. Political decentralisation increases the need for a central body to co-ordinate between communities (Goodin 1992, p. 167). 6.3.2 Devolved bureaucratic power Public choice dogma that state agencies allow inefficient and unnecessary activities to continue (through lack of incentives causing misuse as well as inefficiency) arises from the presumption that the incentives for administrators are different in the public and private spheres (Stretton and Orchard 1994, pp. 122). The orderly and specialised bureaucratisation of the corporatist period has been challenged in this period by the political push for the restructuring of the state agency, supposedly targeted at corporate capture of the state agencies. The analysis of the case study has highlighted the point that if the principles of public choice had been acted upon more rigorously, they could have broken the long-standing ties between industry and agency elites which have prevented the reform of the agricultural chemicals sector. However, the fragmented bureaucratic approach has persisted, and public choice has failed to achieve its own policy priorities because the accompanying economic liberal policy of co-regulation through cooperation only facilitates the development of closed and resilient policy communities. A major issue in terms of sustainability deficits, ‘integrated’ has been interpreted from the perspective of administrative convenience. There has been little emphasis on
212 the structural support needed for industry, as it faces environmental risk as ‘one of the basic challenges of business life in the coming years’, now being required to change its focus from ‘actual to potential damage’ (Matten 1995, p. 108). Devolution of administration to local government has also occurred, but at the expense of order and integration. Analysis of the failure of public choice principles to address sustainability thus leads to the suggestion that systematic co-ordinated structures of co-ordination are required at regional levels that are empowered with resources to act effectively and to ‘engender compliance and problem-solving’ (Ayres and Braithwaite 1992, p. 161). 6.3.3 Environmental citizenship The challenge for the re-organisation of the overloaded state, as Yergin and Stanislaw see it, is very pertinent to environmental issues: The challenge is to conceive and carry out structural changes in the social sector and to reorganise the welfare state so that its services are carried out at a lower cost and with greater efficiency- and to do so with popular consent. And all this with out losing sight of the basic values of solidarity (Yergin and Stanislaw 1998, p. 322). The case study, in this second period, highlights the contradiction between priorities of economic efficiency and those of the collectivity and community. Issues of conflict between the doctrine of rational egoism and the achievement of sustainability illustrate the need for community power in order to address those much larger forces of the government and the global economy (Goodin 1992, p. 124). The previous section of this chapter has identified the preoccupation of recent policy changes with the establishment of the rights of the individual environmental consumer. The legitimacy deficits associated with the neo-liberal program highlight the demands now placed on political programs for the environmental consumer to be reconsidered as an environmental citizen. Values, as well as self-interest, drive collective behaviour (Davis et al 1993, p. 174). Thus structures are needed to support the citizen (Saul 1997, p. 173), information is required that is accessible and public participation should be enabled that is not subject to power differentials. Moreover, the persistence of environmentalism indicates a degree of altruism and disproves the public choice theorem that the ‘disinterested’ and diffuse public opinion must always lose out to the more organised, materially motivated business lobby. Hence the new politics of environmentalism confronts the liberal-market version
213 of the representative democracy model in capitalist societies with sharp choices and points to the need for new forms of participatory democracy, designed to avoid the well- recognised drawbacks of populism.9 6.4.0 Conclusion The history of the EHCA (NSW) 1985 in the second period of the environmental challenge has reflected the withdrawal of the state from the ‘commanding heights’ in relation to the management of toxic chemicals in NSW (Yergin and Stanislaw 1998, p. 390). Over the last decade, toxic chemicals policymaking has been marginalised and subsumed by other policy measures, more readily managed according to the priorities of a market-based policy. This chapter has shown that such policy priorities do not address the basic requirements of sustainability criteria for coordinated and supported inter-agency policymaking, equality and community. The sustainability deficits which have developed in the second phase of policy reform underscore the legitimation issues for democratic governance when market- based concerns, which are not representative of collective concerns, norms and beliefs, come to dominate decision-making concerning the environment. Explication of the failure of this second wave of policy reform in relation to sustainability criteria shows that the neo-liberal political agenda cannot meet this challenge because of the strong influence of public choice principles which essentially prioritise individual liberty and efficiency. This leads to the question as to whether taxes and incentives can address the true moral sentiment of pollution and whether such policy tools are capable of addressing the issue of a fair sharing between industry and the environment of the costs of pollution (Yeager 1991, p. 327). They do not incorporate the integrated support required by the different levels of decision-making if the sustainability criteria of equity, community participation and the assessment of environmental value are to be ensured. New structures are required at both regional and global level to facilitate active involvement in addressing the costs and responsibilities of the environmental challenge. Moreover, individualist precepts of public choice theory negate the potential for active citizenship. As well as facilitating social stability and lending legitimacy, in
9 Critics of participatory democracy have focussed on the drawbacks of direct popular voting, pointing out the potential for inconsistent and emotive decision-making, vulnerability to mob sentiment, manipulation by interest groups and to despotic control. Hence participatory democracy has been labelled as the ‘ceaseless exemplification of community in collective public action’, and to be but the ‘mirage of ancient liberty: the residual of a previous world which can now only do damage’ (Dunn 1992, p. 243).
214 practical terms, the development of a more active relationship between citizens and the state would ‘match policy to real community needs, ensure greater compliance through increased ownership of a solution’ and enable the making of better public policy (NSW Cabinet Office 1998, p. 3). Other shortcomings of programs drawing from public choice theory that are highlighted by the study include the issue of populism and the ability of small government to control major economic interests. They also pass over the dependence of an efficiently operating market system upon institutions such as the law, political representation and regulatory bureaucracies (Self 1993, pp. 196-261; Stretton and Orchard 1994, pp. 75-78). Not all of the policy changes observed in this second period of the study can be attributed to the influence of public choice. As well, this chapter has examined other possible influences upon the recent policy shifts observed in the study, and has concluded that a range of factors, including pressure from environmentalists, the theories of neo-classical economics, environmental economics and economic liberalism, have resulted in the routinisation of market-based environmental policy discourse. The study also highlighted arenas where public choice theory has particular insights, but where these insights have not been followed through into policy reform of ongoing corporate capture. Nor have other positive indications of a congruence between ‘ecologism’ and right-wing theoretical influences been picked up on. Indeed, while the rhetoric of community responsibility has been an aspect of the policy discourse, there has been little attempt to engage with the spirit of community renewal expressed in the new conservatism by means of state-led support. By the end of 1997 in NSW, pollution is still licensed to occur through POEOA 1997 and there has been no attempt to progress the case of the integrated, ‘cradle to grave’ approach to chemicals management proclaimed by politicians at the inception of the EHCA (NSW) 1985. The Pesticides Act 1978 remains unamended, still a source of social dissent. The second phase of the environmental challenge has therefore highlighted, not only the major deficits associated with programmatic agenda based on individualist theory, but the continual corporate capture and domination by the needs of industrial development not in line with sustainability. The rhetoric of ecologically sustainable development has been politically coopted by a regime focussed on the traditional bulwarks of Fortress Australia: resources and development. One of the results has been the shortcomings, in terms of sustainability deficits, of the
215 implementation of the second wave of environmental policy reform concerning toxic chemicals in NSW. These deficits reflect policies of the individualist state operating largely according to the norms of public choice theory, but with insufficient resolve to break with the traditions of a compartmentalised, captured bureaucracy and no political commitment to end the domination of a resilient resources and development lobby. In summary, the administrative and democratic deficits observed in this case study in relation to the environmental management of toxic chemicals indicate the need for more participatory planning, education and consultation in order to develop environmental citizenship; devolved power for decision-making, and re-regulation to empower new integrating structures and decentralised policies. Although this is a regional study of a neo-liberal political program, the extrapolation can be made that these suggestions are normative for any environmental policymaking in a liberal democratic state. The next chapter takes the findings from this regional example of the environmental challenge on to an examination of the issues for governance posed by the global problematic.
216 Chapter 7 The EHCA (NSW) 1985: A Regional Case of a Global Problem The problem of global environmental change is a function of the trajectory of human socio-economic development. It is associated with energy use and resource consumption integral to human society. In consequence it impinges on the right to development of the earth’s poorest peoples and involves deeply controversial issues of future population levels and population policy. In the last analysis it is people and their activities that threaten the planet; environmental degradation is not the consequence of the use of a few exotic chemicals or the careless disposal of waste; but of ‘normal’ human activity (Vogler 1996, p. 197). 7.1.0 Introduction This chapter summarises the major findings of this regional study of toxic chemicals management and examines the extent to which they can be taken as an index of global occurrences. It concludes that the environmental problematic offers thematic challenges for governance. The chapter then goes on, by way of a coda, to examine some of the recent theoretical developments relevant to the issues raised. 7.1.1 Summary of the NSW case This thesis has traced chemicals management in NSW over the period from the late 1970s up until the end of 1997, via the ‘stalking-horse’ of the EHCA. The first wave of environmental reform in NSW, as it responded to local issues of pollution, has been shown to have been dictated by the policy priorities of corporatism, as governments all over Australia came under the influence of the consensus and growth requirements of the Hawke corporatist government. The point has been made that the development of such programs can be explained according to neo-Marxist understandings of the characteristic crises associated with the political economy of the welfare state. Thus already overloaded by the characteristic demands made upon the interventionist state, and now challenged by the new issues of pollution management, the corporatist state set out to reduce the complexity of demands upon it. A major mechanism was to shortcircuit standard arrangements of representative democracy through selected interest group representation, geared to a pre-determined consensus. Rather than the promised reform, the corporatist structures and processes of consultation ensured maintenance of the status quo. Hence the same damning judgments of chemicals
217 control in NSW were made by the PIAC Report of the early 1990s as had appeared in the TFCTS Report nearly a decade earlier (PIAC 1991; TFCTS 1983). Administratively, the corporatist politico-administrative system of the centralised state and the institutionalised bureaucracy failed to overcome the ‘blocked learning capacity’ of the late capitalist state (Offe 1985, p. 847). The emphasis on regulatory science and little recognition of the cumulative and synergistic effects of chemicals illustrates the ‘fundamental mismatch between the nature of ecological systems and the traditional standards-based approach to pollution control’ (Birkeland, Diesendorf and Hamilton 1997, p. 319). The failure of this program highlights the need for more decentralised state powers and devolved yet integrated bureaucratic arrangements if sustainability criteria are to be met. Despite the increased capacity of the corporatist state to design, monitor, and scientifically assess, its centralised decision-making and bureaucratic fragmentation produced administrative deficits and thus did not enable it to meet sustainability criteria. The non-inclusive nature of corporatist decision-making was a further source of both sustainability and legitimacy deficits. The second wave of reforms developed in response to an increasing recognition that environmental impacts are associated with moral, economic and political uncertainty and that the global crisis poses challenges that go well beyond addressing the physical limits of assimilative capacity using finite scientific criteria (Common 1995, pp. 222- 226; Stretton and Orchard 1994, pp. 251). The neo-liberal response to the added challenges of the second phase, and the observed problems with the control of the first, was to shift responsibility for the management of pollution away from the state into the civic realm of partnership agreements and the market. The effect has been more responsibility for under-resourced sectors of society and the un-regulated forces of the market. The need for chemicals to be assessed and monitored through more specific reporting, licensing and public participation requirements has been sidestepped. The retreat of the state has seen new issues of public trust emerge. This second round of policy reforms changed but did not lift the burdens on the state in relation to the administration of the environment. The study showed that state devolution, and the shift to market-based policy tools, was associated with new incapacities. Predictions that this second wave of pollution management would see the integration of environmental considerations across all policy areas (Weale 1992) have not
218 been lived up to. The rhetoric of sustainable development was interpreted in favour of economic interests, while devolvement as a policy was driven by the efficiency requirements of the economic liberal program. The convergent views of industry and state agency supported by corporatism in the first period was maintained into the second, but with convergence now maintained through voluntarism. Hence the adoption of the rhetoric of sustainable development has only further institutionalised a cornucopian management strategy. Market rationalisation has, if anything, added to the administrative deficits, with expanded state capacities required for the complex issues of environmental valuation and monitoring. Although the policy shifts can be attributed to a range of theoretical and other influences, the failure of this second period of environmental reform has been ascribed to the inappropriate programmatic application of individualist theory to redress perceived state overload. The failure of the individualist state to match sustainability criteria indicated the need for decentralisation to be accompanied by re-regulation, for devolved administrative powers to be allocated resources and regulatory teeth, and for the new partnership agreements with community and industry to be accompanied by measures supporting the development of environmental citizenship. In tracing and concluding on the failure of these responses, the thesis has followed the story of the EHCA (NSW) 1985. However, its lessons are underscored by the history of the Pesticides Act (NSW) 1978. Brought in with the first wave of environmental reform in the late 1970s, ignored in the second, and the subject of community protest for nearly two decades, history is now repeating itself with this Act as the same institutional barriers to reform are revealed. A narrow and fragmented policy community, justified by technical and scientific specialisation, subject to corporate capture by a competitive and constantly innovating industry dependent upon accumulation, have made for the domination of decision-making by strong sectoral interests. The continued public protests over the use of agricultural chemicals, which marked both the beginning and end of the period studied, demonstrate the emergence of a new set of environmental values, outside the sphere of the achievement principle at the base of capitalist ideology (Keane 1984, pp. 11-34), with attendant communication and consensus problems.
219 Management of toxic chemicals over these two periods in NSW would not even achieve very weak sustainability (Pearce et al 1993, p. 186). The legitimacy, administrative and sustainability deficits associated with both of these major political programs, drawn from the opposing but equally important political theories of the post- war period, confirm the need for new theoretical developments to address sustainability criteria. As pointed out in previous chapters the principles of environmental economics, rather than those of ecological economics, have been the tool of choice to evaluate resource use. Environmental economics looks to a concept of environmental efficiency that is determined by John Locke’s understanding of the inability of nature to provide for all humankind and of the subsequent need for the ‘flight from scarcity’ (Achterhuis 1993, pp. 107-110). In contrast, ecological economics rests upon Thomas Hobbes’ idea that power, or the relations between humans, brought about scarcity, not the limits of nature (Achterhuis 1993, pp. 107-110; Minogue 1966). It has been one of the consequences of this favouring of environmental economics that in neither period examined in the study has there been a political emphasis on attaining sustainability from the point of the needs of the ecosystem. The next section points out that these challenges at the regional level reflect the issues for governance raised by the global problematic. Although not all pollution issues are global, and there is thus ‘scope for various actors to try to affect policymakers and the public’s perception of environmental issues’ (Yearley 1996, p. 86), environmentalism is patently a global phenomenon (Harding 1998) and environmental problems can be taken as increasingly globalised (Beder 1993, p. 11; Merchant 1992, pp. 63-79; Yearley 1996, p. 9) 7.2.0 Sustainability in the global context 7.2.1 The challenge for the nation-state Although the global environmental crisis presents special problems for governance, with decision-making challenged by ‘time-space distanciation’ characteristics (Giddens 1994), many similar issues are raised as at the regional level. The regional study indicated that the governing authority of the state is challenged in several ways by the environmental problematic. Firstly, the rhetoric of sustainable development favours the cause of market rationality as opposed to state hegemony. Secondly, as we have seen, a sustainable
220 environment calls for decentralised management, taking away from the authority of the state. Global environmental issues place the legitimacy system of the nation-state under similar pressures. As Evans et al point out: Since states are intrinsically Janus-faced, standing at the intersections of transnational and domestic processes, their structure, capacities and policies are always influenced by identifiable aspects of the particular world historical circumstances in which they exist (Evans, Rueschemeyer, and Skocpol 1985, p. 350). The ‘particular world historical circumstances’ of the contemporary period is the intensifying battle between the state and the markets for the ‘commanding heights’ (Yergin and Stanislaw 1998). In this context, globalism confronts the nation-state with a politico-economic imperative: ‘to stay afloat in a hostile world, constituted by the other states and by the political economy’ (Dryzek 1995, p. 296). Market pressures impinge on the nation-state because of the association between sustainable development and opportunistic business advances into the global market. In the context of the competitive international markets, sustainable development is driven by the business concerns of ‘individual effort, community demand, and market solutions’ (Perkins 1998). The nation-state is left out of the equation. From the accepted perspective of business, the global markets are shifting towards ‘greenness’ faster than governments because they measure the sum of many minority markets and are not constrained by the ‘limitations of the nation state’ (Ellyard 1998). Arguably, sustainable development is based on acceptance of ‘progressive, secular materialism’ as the dominant world view (Worster 1993, p. 142) and hence has been readily coopted in the global cause of neo-liberalism and its mission to limit the nation- state. Indeed, corporations advance environmental issues as global concerns for political and expedient motives (Worster 1993, p. 61; Yearley 1996, p. 86). As Beder notes, the membership of the Trilateral Commission , the elite international think-tank founded in the 1970s, responsible for much criticism of the overloaded state (Crozier, Huntington and Watanuki 1975b), has been linked to that of the Brundtland Commission (responsible for Our Common Future and the genesis of sustainable development). Both have strong connections with transnational companies and elite politicians (Beder 1997, p. 111).
221 While the push for a competitive approach to sustainability challenges nation- state authority as against the market, legitimacy pressures associated with the global crisis also call to question its sovereignty. International forces exert pressure for the adoption of sustainability initiatives and for the state to form partnerships and alliances. In the context of international law, the rhetoric of the planning processes of the global environmental challenge is concerned with the production of suitable ‘regimes’: …a distinguishable and coherent complex of norms, institutions, procedures, and management practices which, taken together, represent the ‘framework’ for the full range of legal responses to any environmental problem which might arise within the designated problem area (Johnston 1985, quoted in Ramsey and Rowe 1995, p. 239). Environmental regimes have the potential to threaten the sovereignty of nation-states as their legitimacy becomes more tied to international responsibility (Ramsey and Rowe 1995, pp. 230 -232). With little evidence of the voluntary co-operation between nation- states in the development of appropriate sets of international rules and standards, the nation-state is threatened by the alternative of a ‘hegemonic power which may be regarded as the functional equivalent of world government’ (Vogler 1996, p. 202). Hence the sovereignty associated with the traditional structures of the state is undermined by the development of a ‘supra-state framework of norms, rights and institutions’ (Emy and James 1996, p. 8). In a recent example, as a result of the adoption of Agenda 21 by UNCED, an Intergovernmental Forum on Chemical Safety (IFCS) and the Inter- Organization Programme on the Sound Management of Chemicals (IOMC) have been established. These bodies, assisted by the International Programme on Chemical Safety (IPCS) have authorised assessments of an initial list of 12 Persistent Organic Pollutants (POPs) (Earth Negotiations Bulletin 1999). Globally, social regulation is also required so that ‘participants keep to the rules’ in the management of the global commons (Vogler 1996, p. 203). Global governance, rather than the individual preferences and interests of nation-states, is required for sustainability criteria to be achieved. Thus global governance is required to alleviate the longterm unwillingness of national governments to put aside resources for the centralised management of chemicals. For instance, European Union Ministers have recently requested a report on chemicals assessment, while, in the US, the EPA has released
222 details showing that of 3000 high-volume use chemicals, only 7% have a full set of toxicity data available and 43% have no test data on toxicity (Environmental Manager 1998b). At the other pole to these global forces, new political forces are developing at the community level, reflecting the perception that the nation-state should provide the resources necessary to ‘override the functional rationality of the market in the name of human association and the sense of community’ (Emy and James 1996, p. 13). Civil and private sectors are contesting the role of government in the management of the environment as alliances and new partnerships between transnationals and non- government organisations cooperate in the move towards ecological modernisation (Henry 1998; Vogler 1996). Hence, as at the regional level, the global environmental crisis has led to pressures on existing systems of authority. The autonomy of the nation- state is challenged by the need to develop global governance, and both market forces and community values seek to subvert and transform its autonomy and authority. 7.2.2 The challenge for bureaucratic administration As we have seen at the regional level, the Weberian model of bureaucratic rationality characterised by fragmented responsibility, accountability and the specialisation of tasks has been undermined by environmentalism (Paehlke and Torgerson 1990, pp. 285-301). The deregulatory and co-regulatory policies of the neo-liberals have also been linked to sustainability deficits. Both the institutional specialisation of the Weberian tradition and the managerialist and market-oriented administrative approach are also called to question by the problems associated with the management of the global environment. Thus critics from the South have argued against specialised bureaucratic administration: …ecologically vital but fragile rural resources like trees, grasses, ponds and tanks cannot be created and maintained by any bureaucracy, it can only be done by the rural people (Agarwal and Narain 1993, p. 249). The inappropriate managerialist priorities of efficiency, rationalising, and minimising input per unit output favoured by the new executives of the world environment have also prompted strong criticism (Sachs 1993, pp. 10-12). The ‘eco-modernist’ perspective of ‘eco-efficiency’ does not challenge the accepted pillars of international capitalism: free trade, continuous improvement and technological domination (Welford 1997).
223 The use of economistic models and cost-benefit analysis has raised concerns in relation to global equity and instability. Calculating the value of human lives by reference to such things as how much people would be willing and able to pay to avoid environmental hazards can have the effect of Northern lives appearing far more valuable than those of citizens in the South (Yearley 1996, p. 141). Thus the conditions of the global problematic also call for reconceptualisations of administrative methods and institutional forms. 7.2.3 The challenge for the democratic process The NSW study has indicated some of the problems associated with achieving inclusive decision-making concerning the environment. The articulating and measurement of local interests recurs as a theme on the global scale, as the ‘politics of place’ has developed in opposition to the globalising influences of the markets (Giddens 1994, p. 5; Yearley 1996, p. 264), and in reaction to the market-driven rationality of the multinational industries and the multilateral development banks such as the World Bank (Sachs 1993; Shiva 1993). From the perspective of the South, the World Bank and the International Monetary Fund are the tools of ‘green imperialism’ (Shiva 1993, p. 152). The rhetoric of sustainable development has it as a universally acceptable concept, or as a ‘universalising discourse’ (Yearley 1996, pp. 132-134). Sustainable development is promoted as a ‘shared goal’ of humankind (World Commission on Environment and Development 1987, p. 43). However, the difficulty in obtaining inclusive decision- making is evident. Global relations concerning pollution are criticised as being particularly characterised by inequality and often inharmonious relations (Yearley 1996, p. 60 and pp. 130-133). Indeed, the global analysis of the environment raises the possibility of the increasing potential for conflict between North and South (Yergin and Stanislaw 1998, p. 386). Issues of appropriate modes of equitable and inclusive decision-making concerning the right to development, for equal access to resources and for the sharing of whatever pollution the planet should be held to tolerate have developed as points of disagreement between North and South (Asgarwal and Narain 1991, Middleton 1993, quoted in Yearley 1996, p. 132). Some critics argue that the debate concerning the potential for the depletion of resources and available sinks to cause the economic contraction of the global economy
224 has been captured by corporate and other mainstream interests, to the long-term detriment of local communities. For instance, at UNCED: Corporate interests effectively blocked discussion of the environmental impact of Transnational Corporations (TNCs): recommendations drawn up by the UN’s own Centre for Transnational Corporations (UNCTC) which would have imposed tough global environmental standards on TNC activities, were shelved and instead a voluntary code of conduct, drawn up by the Business Council on Sustainable Development, a corporate lobbying group, was adopted as the Secretariat’s input into UNCED’s Agenda 21. The UNCTC’s carefully crafted proposals were not even circulated to delegates. Meanwhile, a few months before the Rio Summit, the Centre itself was quietly closed down. Instead of being subject to a mandatory code of conduct, negotiated multilaterally, the TNCs emerged from UNCED without their role in causing environmental destruction even having been scrutinised in the official process, let alone curtailed (Hildyard 1993, p. 28). Hence there is a need for models of global governance to ensure equitable access to decision-making through the democratic determination of local and cultural rights and of self-determination in the face of the imperatives of economic growth and the market (Sachs 1993, p. 19). As at the regional level, a major question thrown up by the globalising discourse of sustainable development is whether the market, without strong guidance from a democratically elected global body, is in a position to develop a collective view on sustainability. It concerns the capacity of the market to decide and effectuate where and how economic development can take place according to the equity, value and public participation requirements of sustainability. 7.2.4 The thematic challenge of the environment This brief discussion of some of the problems associated with global environmental management has indicated the thematic nature of the environmental challenge. The issues raised for global governance, administration and democratic decision-making overlap with those raised by the regional study as governance issues for the liberal democratic state. The major political themes thrown up at both the regional and global levels are of strong governance to ensure minimum standards and equity; a decentralised and empowered administrative capacity, and fully inclusive decision-making conducted by environmental citizens.
225 7.3.0 New theoretical developments This section sets out, in the form of a brief summary, a selection of the new theories that have developed, either in response to the ‘new’ politics of the environment or to a more generalised recognition that theories of state failure are not sufficient to characterise structural problems in the governance of contemporary society. Thus postmodern theory critiques the interventionist state and offers a concept of a centre-less society (Lyotard 1984), as does Luhmann’s conservative version of systems theory (Luhmann 1982; Luhmann 1987; Luhmann 1989; Luhmann 1992). Risk theory analyses the problems generated by the technological society and looks at a new form of ‘subpolitics’ and the importance of civil society (Beck 1995, Beck 1998). Ecofeminism represents an ‘emancipatory phase of ecopolitical inquiry’ (Eckersley 1992, pp. 17-21) and offers a critique of the materialist and masculine-technocratic interpretation of nature (Birkeland, Dodds and Hamilton 1997; Merchant 1992; Salleh 1997;). The section concludes with some new insights into democracy that allow more inclusive decision-making (Dryzek 1995; Miller 1993). 7.3.1 Luhmann’s systems theory A ‘fatalistic’ perspective of a decentred society comes from Niklas Luhmann. Luhmann uses the concept of functional differentiation to argue that the centre-less society is not necessarily in disorder, or in a situation of alienation. The performances of the societal system are carried out by the subsystems because this is the only way to manage enough complexity. His concerns are not with what to do about environmental issues but how to communicate about them. The answer does not lie in moralising or in anxiety but in how society reacts to environmental issues (Bednarz 1989; Luhmann 1989, pp.127-139). Social evolution, including the new issues raised by the environment, is left to the economy because it is the subsystem which can be structured and differentiated from society with a higher complexity of its own (Luhmann 1982, p. 224). Conservative systems theory argues that the centre-less society should be comprised of independently operating ‘subsystems’ in the form of bureaucracies (Luhmann 1982). Luhmann does deliver insights into the operations of complex contemporary society, but his fatalism precludes a normative response to the democratic criteria of sustainability. Since human beings are only judged as part of the environment, the public is not the subject for the decision-making of the state, and power and rationality are lodged with
226 the system. Luhmann argues this is the only way for such a complex society to survive (Luhmann 1992, pp. 68-72). Luhmann has been pessimistic about the capacity of systematically structured society to respond to environmental impacts in disparate sub-system domains. His ideas for reform are limited to the prevention of ‘operations of one subsystem producing unsolvable problems in another subsystem’ (Luhmann 1987, p. 242) Thus his theory entails cognitive, rather than normative, expectations from the state. From this perspective, any sort of approach based on universal ethical appeals (such as freedom or the intrinsic value of the environment) is futile, as society is too complex for these sorts of beliefs to hold it together (Luhmann 1982, p. 202). 7.3.2 Postmodern theory According to the arguments of postmodern theory, the materialist perspective of corporatism and the individualistic priorities of neo-conservatism are irrelevant remnants of the outdated theories of modernity, and cannot be used to interpret the distinctive issues of contemporary society. Postmodern theorists argue that the processes of detraditionalisation, individualisation and globalisation have brought about a shift to the new social order of postmodernity and that a new exposition of society is required to mark the difference between this new order and conditions of modernity (Giddens 1994, pp. 83-84). ‘Detraditionalisation’ occurs as a result of the evacuation of local contexts of action or the ‘disembedding of activities’ (Giddens 1994, pp. 83-84). Importantly, the demise of universal values calls for a new perspective on the centralising and co-ordinating institutions of modernity (Lyotard 1984). The role of the contemporary state becomes merely to assist the market in a redistribution of the world’s resources. Indeed, the community takes over many of the responsibilities of the state. For the philosophers and the ordinary folk alike, community is now expected to bring the succour previously sought in the pronouncements of universal reason and their earthly translations: the legislative acts of the national state (Bauman 1992, p. xix). From this perspective, in modernity the state was legislated and expert authority, justified in mobilising resources and thus shaping society. Certainty and universality were the defining features. With no unifying or overall dominating influence, specialised intellectuals, acting as interpreters, replace the legislators (Bauman 1992, pp. 1-24).
227 Since the ‘utilitarian imperatives’ of capitalism have destroyed all past beliefs and thus consensus, agreement and stability can only be achieved through the temporary agreement or contract (Lyotard 1984). As consensus and agreement only appear in this form, the role of the state is diminished and only strictly localised struggles and initiatives are endorsed. ‘The social space is privatised and the welfare state is dismantled’ and ‘moral responsibility is put where it belongs among the private concerns of individuals’ (Bauman 1993, p. 244). Since all organisations face an economy hostile to fixed bureaucratic arrangements (Bauman 1992, p. 192), the bureaucratic hierarchy of modernity is disbanded on behalf of more decentralised and flexible organisations. Post-modernism questions the universal narratives such as faith in progress, and illuminates the ecological challenge to the technical and scientific hegemony associated with both the corporatist and individualist state. But with its lack of endorsement of state regulation, it cannot provide for a political program that enables sustainability. As we have seen, local initiatives alone cannot deal with such issues as cumulative pollution and the global problematic, nor can they ensure intergenerational equity. 7.3.3 Risk theory According to the ‘risk society’ theorists, the conditions of social reflexivity and manufactured uncertainty (or risk) associated with globalisation have profound implications for the management of society and nature (Beck 1996, pp. 27-29; Giddens 1994, pp. 4-8). Insecurity resulting from global threats occurs because society has been undermined by the themes of modernity such as scientific inquiry and technological advancement (Beck 1992). Reflexivity, or the autonomous, unintentional and unseen transition of society, and self-confrontation are the characteristics of the risk society (Beck 1996, pp. 27-28; Lash, Szerszynski, and Wynne 1996, p. 22). In the face of the ecological crisis and continual re-interpretation, institutions lose their autonomy. Beck argues that in reflexive modernisation: …the institutions of industrial society become contradictory, conflicted and dependent on the individual; they prove to be in need of consent and of interpretation and open to internal coalitions and social movements. The question of the individual is raised once again, not directly but via the detour of institutional criticism. This all remains politically ambiguous, however. For instance, reflexive modernisation serves not only the ecological opposition but also the opposition to that opposition (Beck 1998, p. 29).
228 Hence the need is for new institutions at the contextual or sub-political level (Beck 1992; Giddens 1990; Giddens 1994; Lash, Szerszynski and Wynne 1996). It is these sub- political alliances that are to alleviate the observed lack of trust and work against the technocratic managerialism of the state.
The issues of the risk society cannot be relegated to the physical or chemical or biological aspects of the environmental crisis, or ‘environmental dangers’, alone. Risks bring winners as well as losers and are an integral aspect of capitalist society As Beck says: ‘risks are industrially produced, economically externalised, juridically individualised and scientifically legitimised (Beck 1991, p. 127). Hence, in the reflexive conditions of the risk society, the state, corporate capitalism and the scientist all lose their credibility in the eyes of the public (Dryzek 1997, p. 149). According to Beck: Political development in hazard civilisation is approaching the critical issue of the redistribution and democratic shaping of the principles, rules, and foundations of the power to define terms: different relations of proof, different relations of restraint, different relations of control and guidance, different relations of participation in decision-making (Beck 1995, p. 182). The search for new institutions of order and authority is occurring because the exactness and calculability Weber associated with the capitalist bureaucratic state can no longer insure against risks for the population. Indeed, these institutions are seen to normalise and legalise devastation (Beck 1991, p. 128). Bending Weber, Beck says ‘the uncontrollability of the consequences grows with the claims to control instrumental rationality’ (Beck 1991, p. 241). The institutions of industrial society are ‘becoming historically questionable’, and the ‘administration of uncontrollable things must lead to ridiculous bureaucratic travesties’ (Beck 1995, p. 141). Beck argues that: ‘without the expansion and strengthening of political freedom and its social form, civil society, nothing will work in the future’ (Beck 1998, p. 7). Offe points out two consequences of the congruence of ‘victim and perpetrator’ in Beck’s theory. Firstly, since there is no ‘accused’, the state has no role in ‘causal therapy’. In other words, risk theory cannot incorporate a role for the state in obtaining a sustainable society. Secondly, Offe argues that this theory not only valorises the sphere of civil society as opposed to the state but discredits the authority of the ‘special
229 sciences’. Self -regulation must be fostered if this concept is to work (Offe 1996, pp. 33- 35). The problem is, then, that Beck is suggesting ‘deep-seated’ institutional reform, but in fact is precluded by his own theorising from suggesting how that may be achieved in a political program. The ‘problem of order’ , as Offe interprets Beck, is put back into ‘the hands of individuals and their associations and organisations’ (Offe 1996, p. 34). Aside from its lack of emphasis on programmatic requirements, risk theory has been ideologically influential in the strong version of ecological modernisation has emerged from the concepts of the risk society (Dryzek 1997, p. 149). Instead of a mutually antagonistic relationship between the economy and the environment, ecological modernisation analyses the environmental problematic as a specific source of growth for the economy (Weale 1992, pp. 74-78). In that sense it can be described as a political commitment and a ‘discourse’ (Dryzek 1997), or as an ‘ideology’ (Weale 1992), but not a theory from which a political program can be developed. In sum, risk society theory is what its name says it is: a theory of society which opens up some ‘new ways of thinking’ (Offe 1996, p. 33) 7.3.4 Ecofeminism Weaving together the many strands of the ecofeminist movement is the concept of reproduction construed in its broadest sense to include the continued biological and social reproduction of human life and the continuance of life on earth (Merchant 1992, p. 209). The ‘many strands’ of ecofeminism include cultural, social, socialist and liberal ecofeminism, each prescribing a characteristic way out of the environmental crisis. For the liberal ecofeminist, the idea is better laws and science; for the cultural ecofeminist, the way out is through direct political action against such masculine cultural forms as science and technology; the ecosocialist feminist focusses on freedom of reproduction, while for the social ecofeminist the solution lies with the ending of the domination of human by human (Merchant 1992, pp. 190-202). Various ecophilosophical concepts associated with ecofeminism include the construction of nature as a partner (Merchant 1992), understandings of an ecofeminist spirituality based on traditional practices associated with the Earth, and a critique of hierachical dualism (Eckersley 1992, p. 64). Ecofeminism incorporates aspects of transpersonal ecology in that it emphasises the ‘interconnectedness, interdependence and diversity of all phenomena’ (Eckersley 1992, p. 64), but takes a particular perspective on
230 the relationship between nature and sense of self (Eckersley 1992, p. 62). It also can be thought of as an emancipatory theory, as it is concerned with self-determination. Salleh argues that ecofeminism represents a new form of politics, in that it is a holistic campaign against all forms of domination (Salleh 1997, p. 109). She points out: Ecofeminist politics is grounded in women’s economic marginalisation and skills, and the painfully won awareness of nonidentity that their place in the nature-woman—labour nexus gives them. Formulated as an embodied materialism, ecofeminism gets at the lowest common denominator of all oppressions. As such it opens up new possibilities of dialogue between classes and social movements resistant to capital (Salleh 1997, p. 178). The general ecofeminist prescription for a reconstructed society is for self-sufficient, decentralised relations of production, where men and women work together in reciprocity with external nature (Salleh 1997, p. 180). As Eckersley points out, the ecofeminist prescription is underpinned by the insights of woman as nurturer and woman as oppressed which can assist in ‘ecological and social reconstruction’ (Eckersley 1992, p. 66). However, this prescription is not a political program but an ‘eco-ideology’, and ecofeminism remains at a distance to the practicalities of institutional design, pursuing the development of an emancipatory culture that will in the end support sustainability. Process is as important as goals, simply because how we go about things determines where we go. As the power-based relations and processes that permeate our societies are reflected in our personal relationships, we must enact our values in both personal and political spheres (Birkeland, Dodds and Hamilton 1997, p. 136). 7.3.5 Recent reconceptualisations of democracy The environmental crisis provides a strong example of why new conceptualisations of the workings of democracy are required. The task for which democracy was initially devised and for which it has very palpable advantages, was the avoidance of direct subjugation. It was emphatically not the steady genesis of valid understanding of an extravagantly complicated and tautly interconnected world-wide interaction (Dunn 1992, p. 261). Deliberative democracy, for instance, is arguably more suited to the complexity of environmental decision-making. It differs from liberal democracy in the process by which a collective choice on an issue or a set of issues is made. Whereas in the liberal view, the essential is to find a way of aggregating the individual preferences in as fair a way as possible (whether it be by direct participation or by representative means), in
231 deliberative democracy the crucial aspect is the open and uncoerced discussion of the issue or issues in order to arrive at a decision (Miller 1993, p. 75). While liberal democracy idealises efficiency, equality, and the expression of individual preferences, in deliberative democracy it is the agreement that is the important aspect. Instead of political decision-making over competing claims, which are difficult to resolve, deliberative democracy looks to establishing either an acceptable norm, or an agreed upon procedure. It is this process of reaching an agreed judgement that distinguishes it from the traditional model of participatory democracy or ‘populism’. The emphasis in the deliberative conception is on the way in which a process of open discussion in which all points of view can be heard to legitimate the outcome when this is seen to reflect the discussion that has preceded it, not on deliberation as a discovery procedure in search of a correct answer (Miller 1993, p. 77). With this system, there is no ‘correct’ or ‘valid’ answer to questions of policy making. The aim is, not to discover, but to reflect discussion, and hence all points of view. Giddens argues on behalf of a dialogic democracy, enabled because of the development of a post-scarcity order in industrialised nations. The result has been the emergence of counter-trends to the destructive traits of capitalism, expressed in universal values (Giddens 1994, pp. 250-252). Dialogic democracy, although not aspiring to democratisation in the dialogue itself, or to the achieving of consensus, still looks to democratic ideals because it focuses on the continuous dialogue in order to maintain tolerance. Giddens argues that if conditions of dialogic democracy are not fostered in civil society, by the development of active trust, the forces of globalisation, institutional reflexivity and detraditionalisation will subvert more formal means of democracy (Giddens 1994, pp. 115-133). The problem is the degree of political change required in society to enable this situation where all values are equivalent. Discursive democracy takes from Habermas’ normative concepts of discourse ethics and his ideas on the negative effects of the spread of instrumental rationality. This form of democracy centres on practical, communicative and classical politics and strong participatory democracy, carried out by actively informed citizens. Discursive designs involve collective decision-making through authentic democratic discussion, open to all interests, under which political power, money and strategising do not determine outcomes (Dryzek 1997, p. 199).
232 It can thus be contrasted to the practice of instrumental reason by means of liberal bureaucratic-authoritarian forms, which use political strategies and voting procedures based in limited involvement and bargaining. Dryzek argues that discursive democracy addresses the basic institutional changes required for dealing with the complex problems of the environment. As long as a state is present, discursive designs should be located in and help constitute a public space within which citizens associate and confront the state. Within the discursive design, there should be no hierarchy or formal rules, though debate may be governed by informal canons of free discourse. A decision rule of consensus should obtain (Dryzek 1990, p. 43). Discursive democracy offers not only an alternative method of policymaking but reflexively, a new tradition in political science (Dryzek 1990, pp. 20-21). According to this argument, instrumental rationality is embedded in the practices of modern political science. Because of the emphasis allocated to power and technology to ‘effect means to ends’, instrumental rationality is not democratic and is rigid in its solutions. It thus makes effective policy analysis and dealing with the complex problems of the environment impossible. The aim of the new tradition is to circumvent the impasse whereby the currently accepted method of solving crisis, by objective analysis or liberal politics, is the same instrumental rationality causing the crisis. Equity issues of sustainability can be addressed because discursive design enables the transcending of ‘the boundaries of the state, the economy and civil society’ (Dryzek 1995, p. 237). This ‘more radical participatory democracy’ is to be obtained through active participation and control by the individual and is essential to overcome the disparity between the institutional arrangements of the nation-states (Dryzek 1997, p. 199). But this active participation goes beyond participatory democracy to the ideals of the discursive community, enabled by the self-reflexivity of postmodernity. Dryzek himself points out that such a design is vulnerable because troublesome individuals may be oppressed (Dryzek 1997, p. 199). However, it offers a pragmatic prescription and a way forward because of its focus on the root cause of the environmental problematic.
233 7.3.6 Summary From this digest of recent theoretical departures, discursive democracy offers the potential to curtail the disasters resulting from the combination of internationally acting instrumental action and a lack of centralised authority (Dryzek 1990, p. 106). As Offe puts it, discourse ethics at least provides a ‘procedure of self-control’, enabling the ‘intelligent self-limitation’ required in the risk society. It also offers a counter to the ‘equally frugal’ but antithetical forces of the neo-conservatives, who argue not for ‘self- braking’ but for ‘releasing the brakes’ through deregulatory activities (Offe 1996, pp. 33- 35). Since it is only concerned with the ‘issue of human speaking participants’ (Eckersley 1992, p. 181), discursive design has a limited perspective on the achievement of strong sustainability. However, its application is appropriate for new forms of democratic decision-making either at the sub-political level or at the level of participatory democracy which may assist in the development of environmental citizenship. The hegemony of neo-liberalism can then arguably be further subverted through networks of radical activists forcing change upon corporations, and through ecological modernisation, where the organisation gears environmental change with the assistance of the market (Dryzek 1997, pp. 14-15). Other theoretical developments offer little in the way of pragmatic political strategies for sustainable environmental management.. 7.4.0 Conclusion of the study The history of the EHCA (NSW) 1985 presented in this thesis has traced the political response to the requirements of toxic chemicals management in NSW and placed them in the context of the global environmental problematic. The failure to manage toxic chemicals in NSW reflects the failure of current understandings of the liberal democratic state to address the new complexities of the environmental problematic. Although a regional study, the issues raised are thematic and can be taken as an index of the problems of governance encountered at the global order.
The inability of political programs to manage the reality of the ecological crisis in the instance of toxic chemicals management in NSW reflects a lack of theoretical grasp of the new economic, political and social issues underpinning the environmental crisis and
234 challenging the liberal democratic state. As the first phase of the environmental crisis began to make an impact, outworn political themes did not confront the public with the reality of having to decide ‘what sort of nature and society we want’ (Eder 1996, p. 259). The developments in the second and global crisis, understood through the universalising discourse of sustainable development, supported by the tenets of neo-liberalism, have left human needs for economic development and growth still separated from those of the biosphere. Nor does recent political theory provide a basis for the wide-ranging programmatic reform required for ecological reconstruction. Given this lack of specific and appropriate suggestions for broad political reform in recent political and ecopolitical theory, the value of this study is that it offers a systematic analysis of programmatic causes of sustainability deficits, and in consequence, is able to provide specific insights into the institutional reforms required if sustainability is to be achieved. Thus the study has highlighted the problems thrown up by the environmental problematic, as a result of which previously universal narratives, such as faith in progress and the domination of nature, are questioned and the accepted socio-political values of liberal capitalism disputed. The protagonists are the environmentalists whose cause and debating arena disregards political and national boundaries. The challenge for the liberal democratic state is the rise in public debate that occurs across traditional socio-structural boundaries as environmentalists unite to form new collectives. As Eder puts it: The image of the social as a cooperative undertaking points to the structural importance of the environment as an organising principle of public discourse. The environment is the issue that brings collective rationality back into the theory and practice of modern societies (Eder 1996, p. 205). The study has shown that the state must continue to intervene on behalf of the component groups of the new collective, and their concerns on behalf of the distribution of risk. This need to intervene at global and regional levels goes against the tenet of liberalism that the domain of public policy, characterised by constraint and coercion, is a threat to liberty (Somers 1995, pp. 233-263). The rise of the environmentalist movement and the development of the global problematic thus calls to question some of the foundational principles of liberal thought. The demand is for new political structures that can address the diverse needs of new minorities, of local interests, as well as what is acceptable
235 human activity across peoples of different cultural backgrounds and different generations (Vogler 1996). At base, this history of the EHCA (NSW) 1985 has demonstrated that successful reform depends on the recognition and acceptance by society that the existing coordinating mechanisms of the liberal democratic state are intimately connected with capitalism and that the dominant social paradigm, in which the well-being of society is directly correlated with economic growth, must be questioned (Beder 1992, p. 56). Together these conditions of society have brought us to a situation where: …time is no longer understood as the medium of Being, and the gearing of daily life into comprehended tradition is replaced by the empty routines of everyday life. On the other hand, the whole of humanity now lies in the shadow of possible destruction. This unique conjunction of the banal and the apocalyptic, this is the world that capitalism has fashioned (Giddens 1995, p. 252). To avert continuation of the environmental crisis, the ‘empty routines’ must be replaced by the educative concerns of environmental citizens, supported structurally by the state and internationally by co-operative regimes. So this study has examined the period when the stage is being set for new requirements of the state and society to bridge participation and representation, to articulate environmental values and to transform, correspondingly, the institutions of global governance. It has found that if sustainability criteria are to be met, the existing institutions must be remodelled towards broader communicative decision-making articulated through political decentralisation and devolved bureaucratic power, supported by re-regulation to ensure such measures as minimum standards, and by institutional transparency and state-supported measures to progress environmental citizenship.
236 Bibliography A’Hearn, T., ‘Environmental Management and Industry Competitiveness’, Environmental Economics Seminar Series: Environmental Policy and International Competitiveness, Department of Sport, Environment and Territories, Canberra, 1996. ACF, ‘Campaign Trails’, Habitat, 1997, 25, No 6, December 1997, p. 7. Achterhuis, H., ‘Scarcity and Sustainability’, in: W. Sachs (ed.), Global Ecology, Zed Books Ltd., London, 1993, pp. 107-110. ACIC, Responsible Care, ACIC, Melbourne, 1993. Agawal, A., and Narain, S., ‘Towards Green Villages’, in: W. Sachs (ed.), Global Ecology, Zed Books Ltd., London, 1993, pp. 242-257. Agriculture and Resource Management Council of Australia and New Zealand, National Strategy for the Management of Agricultural and Veterinary Chemicals 1998, Department of Primary Industry and Energy, Canberra, 1998. Allen, P., ‘Evolution, Sustainability and Industrial Metabolism’, in: R. Ayres and U. Simonis (eds.), Industrial Metabolism, the United Nations University Press, Tokyo, 1994, pp. 78-100. Allen, P., NSW Environment Minister, quoted in EDO 1996, Balancing the Public Interest in Pollution Laws, EDO, Sydney, 1996. Allenby, B. ‘USA v SD’, Tomorrow, July-August 1998, 8, p. 61. Anderson, T., and Leal, D., Free Market Environmentalism, Pacific Research Institute for Public Policy, San Francisco, 1991. Angel, J., Director, Total Environment Centre, Sydney, Letter to Institute of Environmental Studies, UNSW, Kensington, 22 May 1998. APM, Letter from APM Ltd. Industries, 16 January 1985, Files on the EHCA (NSW) 1985, SPCC Bankstown, examined 1992. Australian and New Zealand Conservation Council and the National Health and Medical Research Council, Australian and New Zealand Guidelines for the Assessment and Management of Contaminated Sites, Australian and New Zealand Conservation Council and the National Health and Medical Research Council, January 1992. Australian Chemical Industry Council, Chemsafe/ Petrasafe Manual, Australian Chemical Industry Council, 1982. Australian Environment Council (AEC), Discussion Paper on the Proposed National Chemicals Notification and Assessment Scheme, Department of Home Affairs and Environment, Canberra, 1984. AVCA, Submission to the SPCC: Comments on the Environmentally Hazardous Chemicals Bill, AVCA, 11 January 1985. Ayres, I., and Braithwaite, J., Responsive Regulation: Transcending the Deregulation Debate, Oxford University Press, Oxford, 1992.
237 Ayres, R., ‘Industrial Metabolism: Theory and Policy’, in: R. Ayres and U. Simonis, (eds.), Industrial Metabolism: Restructuring for Sustainable Development, United Nations University Press, Tokyo, 1994, pp. 3-20. Barker, M., ‘Environmental Quality Control: Regulation or Incentives’, EPLJ, 1984, 1, No. 3, p. 222-231. Bates, G., ‘Report Back from Workshop: Back to the Void. Public Participation in Licensing’, Pollution Perspectives Program and Conference Papers, EDO, Sydney, 1997. Bates, G., Environmental Law in Australia, 2nd edition, Butterworths, Sydney, 1987. Bauman, Z., Intimations of Postmodernity, Routledge, London, 1992. Bauman, Z., Postmodern Ethics, Basil Blackwell, Oxford, 1993. Bauman, Z., ‘Is there a Postmodern Sociology?’ in: S. Seidman (ed.), The Postmodern Turn, Cambridge University Press, Cambridge, 1994, pp. 187-204. Baynes, K., ‘Rational Reconstruction and Social Criticism: Habermas’ Model of Interpretative Social Science’, in: Michael Kelly (ed.), Hermeneutics and Critical Theory in Ethics and Politics, The MIT Press: Cambridge, 1990, p. 134. Beck, U., Ecological Enlightenment, Humanities Press, New Jersey, 1991. Beck, U., Risk Society: Towards a New Modernity, Sage Publications, London, 1992. Beck, U., ‘Replies and Critiques: Self-Dissolution and Self-Endangerment of Industrial Society: What does this Mean?’ in: U. Beck, A. Giddens and S. Lash, Reflexive Modernisation, Polity Press, Cambridge, 1994, pp. 174-198. Beck, U., Ecological Politics in an Age of Risk, translated by Amos Weisz, Polity Press, Cambridge, 1995. Beck, U., ‘Risk Society and the Provident State’, in: S. Lash, B. Szerszynski, and B. Wynne (eds.), Risk, Environment and Modernity, Sage Publications, London, 1996, pp. 27-43. Beck, U., Democracy without Enemies, translated by Mark Ritter, Polity Press, Cambridge, 1998. Beder, S., From Pipe Dreams to Tunnel Vision: Engineering Decision-Making and Sydney’s Sewerage System, Ph.D. Thesis, School of Science and Technology Studies, UNSW, Sydney, 1989. Beder, S., ‘Activism Versus Negotiation: Strategies for the Environment Movement’, in R. Harding (ed.), Ecopolitics V Proceedings, Centre for Liberal and General Studies, The University of New South Wales, Kensington, 1991, p. 55. Beder, S., The Nature of Sustainable Development, 2nd edition, Scribe Publications, Newham, 1996. Beder, S., Global Spin, Scribe Publications, Newham, 1997. Bednarz, J., ‘Translator’s Introduction’, in: N. Luhmann, Ecological Communication, Polity Press, Cambridge, 1989. Beetham, D., ‘Liberal Democracy and the Limits of Democratisation’, in: D. Held (ed.), Prospects for Democracy, Polity Press, Cambridge, 1993, pp. 55-73.
238 Bell, S., ‘Globalisation, Neoliberalism and the Transformation of the Australian State’, Australian Journal of Political Science, 32, No 3, 1997, pp. 345-368. Bell, S., and Head, B., ‘Australia’s Political Economy: Critical Themes and Issues’, in S. Bell and B. Head (eds.), State Economy and Public Policy, Oxford University Press, Melbourne, 1994. Benn, S., ‘The History of the Environmentally Hazardous Chemicals Act 1985, New South Wales, Australia: Report on Policy Reform Concerning Toxic Chemicals’, AMBIO, 1996, 25, pp. 475-477. Benn, S., ‘The EHCA 1985 (NSW): A Historical Perspective on Issues Arising in the Control of Toxic Chemicals’, Australian Journal of Political Science, 1997, 32, 1997, pp. 49-64. Birekeland, J., Dodds, S., and Hamilton, C., ‘Values and Ethics’, in: M. Diesendorf and C. Hamilton (eds.), Human Ecology, Human Economy, Allen and Unwin, St Leonards, 1997, pp. 125-147. Birkeland, J., Diesendorf, M., and Hamilton, C., ‘Some Pathways to Ecological Sustainability’, in: M. Diesendorf and C. Hamilton (eds.), Human Ecology, Human Economy, Allen and Unwin, St Leonards, 1997, pp. 302-326. Boer, B., ‘Social Ecology and Environmental Law’, EPLJ, 1984, 1, pp. 233-257. Bonyhady, T., Places Worth Keeping: Conservationists, Politics and the Law, Allen and Unwin, Sydney, 1993. Booth, I., in: ‘Discussion’, Environmental Economics Seminar Series: Environmental Policy and International Competitiveness, Department of Sport, Environment and Territories, Canberra, 1996, pp. 29-37. Bosso, C., Pesticides and Politics: The Life Cycle of a Public Issue, University of Pittsburgh Press, Pittsburgh, 1987. Brennan, G, and Lomasky, L., ‘Introduction’ in: G. Brennan and L. Lomasky (eds.), Politics and Process: New Essays in Democratic Thought, Cambridge University Press, Cambridge, 1989, pp. 1-10. Brennan, G, and Lomasky, L., ‘Large Numbers, Small Costs: the Uneasy Foundations of Democratic Rule’ in: G. Brennan and L. Lomasky (eds.), Politics and Process: New Essays in Democratic Thought, Cambridge University Press, Cambridge, 1989, pp. 42-59. Brennan, G. and Buchanan, J., The Reason of Rules, Cambridge University Press, Cambridge, 1985. Brett, J., ‘Ideology’, in: J. Brett, J. Gillespie and M. Goot (eds.), Developments in Australian Politics, Macmillan Education Australia Ltd., South Melbourne, 1994, pp. 1-19. Brickman, R., Jasanoff, S., and Ilgen, T., Controlling Chemicals: Regulation in Europe and the USA, Cornell University Press, Ithaca, 1985. Brown, L., ‘Nature’s Limits’, in: L. Brown et al. (eds.), State of the World 1995, A Worldwatch Institute report on progress toward a sustainable society, Earthscan Publications, London, 1995, pp. 3-20.
239 Brown, L. 1998a, ‘The Future of Growth’, in: L. Brown et. al. (eds.), State of the World 1998, A Worldwatch Institute report on progress toward a sustainable society, Earthscan Publications, London, 1998, pp. 3-20. Brown, V. 1998b, ‘The Titanic or the Ark? Indicators of National Progress towards Ecological Sustainability’ in: R. Eckersley (ed.), Measuring Progress: is Life Getting Better? CSIRO, Collingwood, 1998, pp. 269-286. Buchanan, J. and Tulloch, G., The Calculus of Consent, University of Michigan Press, Ann Arbor, 1962. Buchanan, J. and Wagner, R., Democracy in Deficit, Academic Press, New York, 1977. Buchanan, J. and Wagner, R., ‘The Political Biases of Keynesian Economics’ in: Fiscal Responsibility in Constitutional Democracy, Martinus Nijhoff Social Sciences Division, Boston, 1978, pp. 79-118. Buchanan, J., Cost and Choice, Markham Publishing Company, Chicago, 1969. Buchanan, J., ‘Contractarian Presuppositions and Democratic Governance’, in: G. Brennan and L. Lomasky (eds.), Politics and Process: New Essays in Democratic Thought, Cambridge University Press, Cambridge, 1989, pp. 174-182. Buchanan, J., Liberty, Market and State, Wheatsheaf Books Ltd., Brighton, 1986. Budge, I., ‘Direct Democracy: Setting Appropriate Terms of Debate’, in: D. Held (ed.), Prospects for Democracy, Polity Press, Cambridge, 1993, pp. 136-155. Bullock, A., and Stalleybrass, O. (eds.), The Fontana Dictionary of Modern Thought, Fontana Books, London, 1981. Burgmann, V., Power and Protest: Movements for Change in Australian Society, Allen and Unwin, Sydney, 1993. Cameron, J. and Abouchar, J., ‘The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment’, Boston College Int and Comp LR, 1991, 14, pp. 1-27. Chamber of Manufactures, Letter to the Hon. B. Carr, NSW Minister for Planning and Environment, 18 February 1985, Files on the EHCA (NSW) 1985, SPCC, Bankstown, examined 1992. Chong, D., ‘Rational Choice Theory’s Mysterious Rivals’, in: J. Friedman, The Rational Choice Controversy, Yale University Press, New Haven and London, 1996, pp. 189-212. Christoff, P., ‘Environmental Politics’, in: J. Brett, J. Gillespie and M. Goot (eds.), Developments in Australian Politics, Macmillan Education Australia Ltd., South Melbourne, 1994, pp. 348-365. Christoff, P., ‘Market-Based Instruments: The Australian Experience’, in: R. Eckersley (ed.), Markets, the State and the Environment, Macmillan Education Australia Pty. Ltd., South Melbourne, 1995, pp. 157-193. Christoff, P., in: ‘Discussion’ , Environmental Economics Seminar Series: Environmental Policy and International Competitiveness, Department of Sport, Environment and Territories, Canberra, 1996, pp. 29-37.
240 Christoff, P., ‘Degreening Government in the Garden State: Environment Policy under the Kennett Government’, Environment and Planning Law Journal, 1998, 15, pp. 10-32. Clark, G., ‘Global Competition and Environmental Regulation: Is the “Race to the Bottom” Inevitable?’, in: R. Eckersley (ed.), Markets, the State and the Environment, Macmillan Education Australia Pty. Ltd., South Melbourne, 1995, pp. 229-237. Cole, D., ‘Environmental Contaminants’, EPLJ, 1984, 1, pp.199-202. Cole, D., ‘The Relevance to Australia of the United States Toxic Substances Control Act’, EPLJ, 1984, 1, p. 114. Common, M., Sustainability and Policy: Limits to Economics, Cambridge University Press, Cambridge, 1995. Common M., ‘Background Paper’, Environmental Economics Seminar Series: Equity and the Environment, Department of Sport, Environment and Territories, Canberra, 1996, pp. 6-15. Commonwealth of Australia, National Strategy for Ecologically Sustainable Development, AGPS, Canberra, 1992. Commonwealth of Australia, State of the Environment Australia: Executive Summary, CSIRO Publishing, Collingwood, 1996. Connolly, B., The Fight for the Franklin, Cassell Australia Ltd.: North Ryde, 1981. Connolly, W., ‘Introduction: Legitimacy and Modernity’, in W. Connolly (ed.), Legitimacy and Modernity, Basil Blackwell: Oxford, 1984. Connor, J., ‘Back to the Void? Public Participation in Licensing . No Vision. Not Best Practice. No Meaningful Participation’, Pollution Perspectives Program and Conference Papers, EDO, Sydney, 1997. Corbyn, L., ‘NSW Environment Protection Laws for New South Wales - Your Chance to Have a Say’, Pollution Perspectives Program and Conference Papers, EDO, Sydney, 1997. CPP1985a, Letter to the Hon. R. J. Carr, Minister for Planning and the Environment, 15 February 1985, Files on the EHCA (NSW), SPCC, Bankstown, examined 1992. CPP 1985b, Letter to the Hon. J. A. Crosio, Minister for Natural Resources, 20 February 1985, Files on the EHCA (NSW), SPCC, Bankstown, examined 1992. CPP 1985c, Letter to the Hon. R. J. Carr, Minister for Planning and the Environment, 25 February 1985, Files on the EHCA (NSW), SPCC, Bankstown, examined 1992. Cranston, M., ‘John Locke and Government by consent’, in: D. Thomson (ed.), Political Ideas, Penguin Books Ltd., Harmondsworth, 1966. Crouch, Colin, ‘Pluralism and the New Corporatism: a Rejoiner, Political Studies, 1983, 31, pp. 452-460. Crozier, M., ‘Western Europe’ in: M. Crozier, S. Huntington and J. Watanuki (eds.), The Crisis of Democracy: Report on the Governability of Democracies to the Trilateral Commission, New York University Press, New York, 1975, pp. 11-58.
241 Crozier, M., Huntington, S. and Watanuki, J. 1975a, ‘ Introduction’ in: M. Crozier, S. Huntington and J. Watanuki (eds.), The Crisis of Democracy: Report on the Governability of Democracies to the Trilateral Commission, New York University Press, New York, 1975, pp. 1-10. Crozier, M., Huntington, S. and Watanuki, J. 1975b, ‘ Conclusion’ in: M. Crozier, S. Huntington and J. Watanuki (eds.), The Crisis of Democracy: Report on the Governability of Democracies to the Trilateral Commission, New York University Press, New York, 1975, pp. 157-172. Daly, H., Steady-state Economics, 2nd edition, Island Press, Washington, 1991. Davis, G., ‘Making Sense of Difference? Public Choice, Politicians and Bureaucratic Change in America and Australia’, in P. Weller and G. Davis (eds.,), New Ideas, Better Government, Allen and Unwin, St Leonards, 1996. Davis, G, Wanna, J., Warhurst, J., and Weller, P., Public Policy in Australia, 2nd. edition, Allen and Unwin, St Leonards, 1993. Deegan, C., ‘Environmental Reporting in Australia: we’re moving along the road, but there’s still a long way to go’, Environmental and Planning Law Journal, 1998, 15, pp. 246-263. Delvecchio, J and Peatling, S, ‘Science Gets More Runs on the Board than Sport’, SMH 16 June 1997. Department of Trade, Australia Reconstructed: ACTU/ TDC Mission to Western Europe, A Report by the Mission Members to the ACTU and the TDC, AGPS, Canberra, 1987. Dent, G., ‘Environmental Controls in Australia: The Environment and Development-In Search of Balance’, in: I. Marsh (ed.), The Environmental Challenge, Longman Cheshire Pty. Ltd., Melbourne, 1991, pp. 212-242. Department of Environment, Sport and Territories (DEST), A Handbook of Environmental Valuation, AGPS, Canberra, 1996
242 Dunn, J., Western Political Theory in the Face of the Future, Cambridge University Press, Cambridge, 1979. Dyer, K., (SPCC EPA Officer E), Telephone Interviews, Contaminated Sites Division, NSW EPA, 4 October 1994 and 11 September 1996. Earth Negotiations Bulletin, enb@iisd., published by the International Institute for Sustainable Development (IISD), [email protected], linkages WWW site, http://www.iisd.ca, vol 15, no. 18, 1 February 1999. Eckersley, R., Environmentalism and Political Theory, State University of New York Press, Albany, 1992. Eckersley, R. 1995a, ‘Markets, the State and the Environment: An Overview’, in: R. Eckersley (ed.), Markets, the State and the Environment, Macmillan Education Australia Pty. Ltd., South Melbourne, 1995, pp. 7-45. Eckersley, R. 1995b, ‘Preface’, in: R. Eckersley (ed.), Markets, the State and the Environment, Macmillan Education Australia Pty. Ltd., South Melbourne, 1995, pp. 2-6. Eckersley, R., ‘Greening the Modern State: Managing the Environment’, in: P. James (ed.), The State in Question: Transformations of the Australian State, Allen and Unwin, Sydney, 1996, pp. 74-108. Eckersley, R., ‘Perspectives on Progress: Economic Growth, Quality of Life and Ecological Sustainability’ in: R. Eckersley (ed.), Measuring Progress: is Life Getting Better? CSIRO, Collingwood, 1998, pp. 3- 34. Eder, K., ‘The Institutionalisation of Environmentalism: Ecological Discourse and the Second Transformation of the Public Sphere’, in: S. Lash, B. Szerszynski, and B. Wynne (eds.), Risk, Environment and Modernity, Sage Publications, London, 1996, pp. 203-224. EDO, Submission on the EHCB to the SPCC from the EDO, 20 December 1984. EDO 1997a, Environmental Planning and Assessment Amendment Act, Internal document, EDO, Sydney, 1997. EDO 1997b, Downstream Without a Paddle: A Guide to the Problems of Pollution Law Reform in NSW by the Environmental Defender’s Office Ltd., EDO, Sydney, 1997. EDO 1997c, Improving Pesticide Regulation and Management in NSW,
243 EIA 1997a, ‘Lead Education Program’, EIA Newsletter, October, 1997. EIA 1997b, ‘Flurry of Legislation as NSW Overhauls Environmental Laws’, EIA Newsletter, December, 1997. EIA, ‘President’s Report’, EIA Newsletter, August, 1998. Ellyard, P., ‘What is the Environmental Image that Australians want and are we Achieving this?’ Address to the EIA 11th Annual National Conference, December 1998. Emy, H. and James, P., ‘Debating the State: the Real Reasons for Bringing the State Back in’ in: P. James (ed.), The State in Question: Transformations of the Australian State, Allen and Unwin, Sydney, 1996, pp. 8-37. Environment Business, ‘Environment Operations Bill’, Environment Business, December 1997. Environment Business 1998a, ‘Site Auditor Scheme’, Environment Business, February 1998. Environment Business 1998c, ‘New Licensing to Penalise Polluters’, Environment Business, March 1998. Environment Business 1998b, ‘Government IC Response’, Environment Business, April 1998. Environment Business 1998d, ‘Coastal Acid Pollution’, Environment Business, August 1998. Environment Business, ‘PEOA Commences’, Environment Business, February 1999. Environment Business, ‘Biodiversity Bill Runs into Flak’, Environment Business, February 1999. Environment Law Association (ELA), Submission to the SPCC by the ELA of NSW, SPCC, Bankstown, 1984. Environmental Advocates, ‘History of Chlordane and the Organochlorine Pesticides’,
244 Environmental Manager 1997b, ‘NPI: Over 90 Substances to be Reportable’, Environmental Manager, 159, 1997. Environmental Manager 1997c, ‘NSW Set to Boost Vocational Educational Training’, Environmental Manager, 174, 1997. Environmental Manager 1997d, ‘ACM Praises NSW Bill’, Environmental Manager, 181, 1997. Environmental Manager 1998a, ‘OECD on Australia’s Environmental Performance: Fix the Mix’, Environmental Manager, 196, 1998. Environmental Manager 1998b, ‘NSW EPA Re-iterates: No Special Deal for Mines’, Environmental Manager, 223, 1998. Environmental Manager 1998c, ‘NSW Govt Puts Bill on Hold’, Environmental Manager, 229, 1998. Environmental Manager, ‘NSW Government Puts Bill on Hold’, Environmental Manager, 235, 1999. EPLJ, ‘Editorial’, EPLJ, 1984, 1, pp. 209-210. ESD Steering Committee, Compendium of Ecologically Sustainable Development Recommendations, AGPS, Canberra, 1992. Evans, P., Rueschemeyer, D., and Skocpol, T., ‘On the Road Toward a More Adequate Understanding of the State’, in: P. Evans, D. Rueschemeyer and T. Skocpol (eds.), Bringing the State Back In, Cambridge University Press, Cambridge, 1985, pp. 347-367. Farrier, D., Environmental Law Handbook-Planning and Land Use in Australia, Redfern Legal Centre Publishing, Redfern, 1988. Farrier, D., Environmental Law Handbook-Planning and Land Use in Australia, 2nd edition, Redfern Legal Centre Publishing, Sydney, 1993. Foucault, M., Discipline and Punish, The Birth of Prison, Penguin: London, 1977. Foucault, M., ‘Truth and Power-Interview with Alessandro Fontano and Pasquale Pasquino’, in: M. .Morris and P. Paton, (eds.), Michel Foucault: Power,Truth, Strategy, Feral Press, 1979. Fox, W., ‘Deep Ecology: A New Philosophy of Our Time’, The Ecologist, 1984, 14, pp. 194-199. Frankel, C.,‘The Next Wave’, Tomorrow, 7, Number 6, November-December 1997, pp. 30-31. Freeman A., Haverman R. and Kneese A., The Economics of Environmental Policy, John Wiley and sons, New York, 1973. Friedman, G., ‘Introduction: Economic Approaches to Politics’, in: J. Friedman, The Rational Choice Controversy, Yale University Press, New Haven and London, 1996, pp. 1-24. Fulcher, J., ‘Labour Movement Theory versus Corporatism: Social Democracy in Sweden’, Sociology, 1987, 21, pp. 231-252.
245 Gerlich, P., Grande, E and Muller, W., ‘Corporatism in Crisis: Stability and Change of Social Partnership in Austria’, Political Studies, 1988, 36, pp. 209-223. Gerritsen, R., ‘The Necessity of Corporatism: the Case of the Hawke Labor Government’, Politics, 1986, 21, pp. 45-54. Geuss, R., ‘Editor’s Introduction’, in: R. Geuss (ed.), The Idea of Critical Theory, Habermas and the Frankfurt School, Cambridge University Press, Cambridge, 1981. Giddens, A., Politics and Sociology in the Thought of Max Weber, Macmillan Press, London, 1972. Giddens, A., The Consequences of Modernity, Polity Press, Cambridge, 1990. Giddens, A., Beyond Left and Right: the Future of Radical Politics, Polity Press, Cambridge, 1994. Giddens, A., A Contemporary Critique of Historical Materialism, 2nd edition, Macmillan Press Pty. Ltd., London, 1995. Giddens, A., The Third Way, Polity Press, Cambridge, 1998. Giere, R., ‘Controversies involving Science and technology: a theoretical perspective’, in: H.T. Engelhardt, Jr. and A. L. Caplan, (eds.), Scientific Controversies, Cambridge University Press, Cambridge, 1987, pp. 125-150. Gillespie, B., Eva, D., and Johnston, R., ‘Carcinogenic Risk Assessment in the United States and Great Britain: The Case of Aldrin and Dieldrin?’ Social Studies of Science, 1979, 9, p. 294. Glasbergen, P. and Driesson, P., ‘New Strategies for Environmental Policy: Regional Network Management in the Netherlands’, in: M. Whintle (ed.), Rhetoric and Reality in Environmental Politics, Ashgate Publishing Co., Aldershot, 1994. Global Environmental Change Program, ‘Trade Liberalisation and Global Design of Environmental Policy’, The Newsletter of the Global Environmental Change Program, 1998, 18, p. 5. Gobeyn, M., ‘Explaining the Decline of Macro-Corporatist Political Bargaining Structures in Advanced Capitalist Societies’, Governance: An International Journal of Policy and Administration, 1993, 6, pp. 3-22. Goodin, R., Green Political Theory, Polity Press, Cambridge, 1992. Gow, D., ‘Economic Voting and Postmaterialist Values’, in: C. Bean, I. McAllister, and J. Warhurst (eds.), The Greening of Australian Politics, Longman Cheshire, Melbourne, 1990, pp. 54-72. Green, D., and Shapiro, I., Pathologies of Rational Choice Theory, Yale University Press, New Haven and London, 1994. Grey, F., in: ‘Discussion’, Environmental Economics Seminar Series: Environmental Policy and International Competitiveness, Department of Sport, Environment and Territories, Canberra, 1996, pp. 29-37.
246 Grove-White, R., ‘Environmentalism: A New Moral Discourse for Technological Society’, in: K. Milton (ed.), Environmentalism, Routledge, London, 1993, pp. 112-123. Habermas, J., Towards a Rational Society, Heinemann, London, 1968. Habermas, J., Knowledge and Human Interests, Beacon Press, Boston, 1971. Habermas, J., Legitimation Crisis, translated from German by Thomas McCarthy, Heinemann Educational, London, 1976. Habermas, J., Theory of Communicative Action, Vol. 2., Beacon Press, Boston, 1984. Habermas, J. 1989a, ‘The Uncoupling of System and Lifeworld’, in: S. Seidman (ed.), Jurgen Habermas on Society and Politics-A Reader, Beacon Press, Boston, 1989, pp. 188-230. Habermas, J. 1989b, ‘What Does a Crisis Mean Today? Legitimation Problems in Late Capitalism’, in: S. Seidman (ed.), Jurgen Habermas on Society and Politics-A Reader, Beacon Press, Boston, 1989, pp. 266-283. Hajer, M., ‘Ecological Modernisation as Cultural Politics’, in: S. Lash, B. Szerszynski, and B. Wynne (eds.), Risk, Environment and Modernity, Sage Publications, London, 1996, pp. 246-269. Ham, C. and Hill, M., The Policy Process in the Modern Capitalist State, 2nd edition, Harvester Wheatsheaf, New York, 1993. Hamilton, C. 1996a, ‘Thinking about the Future: Equity and Sustainablity’, Environmental Economics Seminar Series: Equity and the Environment, Department of Sport, Environment and Territories, Canberra, 1996, pp. 16-21. Hamilton, C. 1996b, ‘Public Policy and the Environment’, address to the Public Policy and the Environment’ Conference, Royal Institute for Public Administration Australia, 5 December 1996. Hamilton, C. 1996c, ‘ Generational Justice: the Marriage of Sustainability and Social Equity’ Australian Journal of Environmental Management, 1996, 3, pp. 163-173. Hamilton, C. 1998a, ‘Measuring Changes in Economic Welfare’ in: R. Eckersley (ed.), Measuring Progress: is life getting better? CSIRO, Collingwood, 1998, pp. 69- 92. Hamilton, C. 1998b, ‘Will Emissions Trading Save Australia’s Forests?’ Australasian Science, 1998, 19, No. 4, pp. 21-22. Hansard 1982a, NSW Parliament, Parliamentary Debates, Proceedings of the NSW Legislative Assembly, 20 October 1982, 171, p. 1816. Hansard 1982b, NSW Parliament, Parliamentary Debates, Proceedings of the NSW Legislative Assembly, 21 October 1982, 171, p. 1968. Hansard, NSW Parliament, Parliamentary Debates, Proceedings of the NSW Legislative Assembly, 24 November 1983, 177, p. 3523. Hansard 1984, NSW Parliament, Parliamentary Debates, Proceedings of the NSW Legislative Assembly, 2 November 1984, 183, pp. 3374-3379.
247 Hansard 1985a, NSW Parliament, Parliamentary Debates, Proceedings of the NSW Legislative Assembly, 27 February 1985, 183, pp. 3892-3897. Hansard 1985b, NSW Parliament, Parliamentary Debates, Proceedings of the NSW Legislative Assembly, 20 February 1985, 183, p. 3517. Hansard 1985c, NSW Parliament, Parliamentary Debates, Proceedings of the NSW Legislative Assembly, 26 February 1985, 183, pp. 3750-3754. Hansard 1985d, NSW Parliament, Parliamentary Debates, Proceedings of the NSW Legislative Council, 5 March 1985, 184, pp. 4076-4095. Hansard 1987a, NSW Parliament, Parliamentary Debates, Proceedings of the NSW Legislative Assembly, 21 October 1987, 199, p. 14, 923. Hansard 1987b, NSW Parliament, Parliamentary Debates, Proceedings of the NSW Legislative Assembly, 21 November 1987, 200, p. 16,876. Hansard, NSW Parliament, Parliamentary Debates, Proceedings of the NSW Legislative Assembly, 17 September 1997, 260, p. 524. Hardiman, N., ‘Consensual Politics? Public Goods and Collective Action in Ireland’, in I. Scholten (ed.), Political Stability and Neo-Corporatism, Sage Series in Neo- Corporatism, edited by P. Schmitter, Sage Publications, London, 1987, pp. 120- 152. Harding, R., and Fisher, L., ‘The Precautionary Principle in Australia: Background Paper’, The Precautionary Principle Conference Papers, Institute of Environmental Studies, UNSW, Kensington, 1993. Harding, R., Managing for the Future, Course developed for the Australian Petroleum Energy Association by Unisearch, Institute of Environmental Studies, and the Centre for Petroleum Engineering at UNSW, 1994. Material from Module 1, ‘Understanding the Environment’, pp. 229-224. Harding, R., Young, M., and Fisher, E., 1996a, ‘Interpretation of the Principles for the Fenner Conference of the Environment: Sustainability - Principles to Practice’, Report for the Australian and New Zealand Conservation Council, Department of Environment, Sport and the Territories, Canberra, 1996. Harding, R., Young, M., and Fisher, E. 1996b, ‘Outcomes: Fenner Conference of the Environment: Sustainability-Principles to Practice’, Report for the Australian and New Zealand Conservation Council, Department of Environment, Sport and the Territories, Canberra, 1996. Harding, R., Environmental Decision-Making, The Federation Press, Annandale, 1998. Harrington, M., The Twilight of Capitalism, The Macmillan Press, London, 1976. Harris, S., ‘Introduction’, Environmental Economics Seminar Series: Environmental Policy and International Competitiveness, Department of Sport, Environment and Territories, Canberra, 1996, pp. 5-8. Hayek, F., Law, Legislation and Liberty, Vol. 11, Routledge and Kegan Paul, London, 1982. Head, B.W., ‘State and Economy: Theories and Problems’, in B. W. Head (ed.), State and Economy in Australia, Oxford University Press, Oxford, 1983.
248 Head, B. and Bell, S., ‘Understanding the Modern State: Explanatory Approaches’, in S. Bell and B. Head (eds.), State, Economy and Public Policy in Australia, OUP, Melbourne, 1994. Hearn, F. ‘Durkheim’s Political Sociology: Corporatism, State Autonomy, and Democracy’, Social Research, 1985, 52, pp. 152-177. Heilbroner, R., Twenty-First Century Capitalism, Allen and Unwin, St. Leonards, 1992. Held, D., Introduction to Critical Theory, Horkheimer to Habermas, Hutchinson, London, 1980. Held, D., ‘Democracy: From City-states to a Cosmopolitan Order?’ in: D. Held (ed.), Prospects for Democracy, Polity Press, Cambridge, 1993, pp. 13-52. Henry, D., ‘What are the Options for Global National Environmental Action in the 21st Century?’ Keynote Address to the EIA 11th Annual National Conference, December 1998, Sydney. Hildyard, N., ‘Foxes in Charge of the Chickens’, in: W. Sachs (ed.), Global Ecology, Zed Books Ltd., London, 1993, pp. 22-35. Hinkson, J., ‘The State of Postmodernity: beyond Cultural Nostalgia or Pessimism’, in: P. James (ed.), The State in Question: Transformations of the Australian State, Allen and Unwin, Sydney, 1996, pp. 196-223. Hinterberger, F., Luks, F., and Schmidt-Bleek, F., ‘Material Flows vs. ‘Natural Capital’: What Makes an Economy Sustainable?, Ecological Economics, 1997, 23, pp. 1- 14. Holmes, S. and Larmore. C., ‘Translators Introduction’, in: N. Luhmann, The Differentiation of Society, trans. S. Holmes and C. Larmore, Colombia University Press, New York, 1982, pp. i-xxxvii. Horstman, M., ‘One Continent or Seven Countries’, Habitat, 1998, 26, No 2, April 1998, p. 21. House of Representatives Standing Committee on Environment and Conservation, Second Report on the Inquiry into Hazardous Chemicals; December, 1982, AGPS, Canberra, 1982. Huckle, J., ‘Teacher Education’ in: J. Huckle and S. Sterling (eds.), Education for Sustainability, Earthscan Publications Ltd., London, 1996, pp. 105-119. Humphries, D., ‘The Premier’s Movers’, SMH, 21 March 1997, p. 9 Huntington, S., ‘The United States’, in: M. Crozier, S. Huntington and J. Watanuki (eds.), The Crisis of Democracy: Report on the Governability of Democracies to the Trilateral Commission, New York University Press, New York, 1975, pp. 11- 58. Institute of Environmental Studies, Environs, Institute of Environmental Studies, University of New South Wales, Kensington, 28 April 1997. Intergovernmental Agreement on the Environment (IGAE), Heads of Government in Australia, May 1992.
249 Jackson, T., Marks, N., Ralls, J., and Styme, S., Sustainable Economic Welfare in the UK 1950-1996, New Economics Foundation, Centre for Environmental Strategy, University of Surrey, Surrey, 1997. Jacobs, M., The Green Economy: Environment, Sustainable Development and the Politics of the Future, Pluto Press, London, 1991. Jacobs, M., ‘Sustainability and “the Market”’: A Typology of Environmental Economics’, in: R. Eckersley (ed.), Markets, the State and the Environment, Macmillan Education Australia Pty. Ltd., South Melbourne, 1995, pp. 46-85. Jaensch, D., The Politics of Australia, Macmillan Education Australia Pty. Ltd., South Melbourne, 1992. James D., Using Economic Instruments for Meeting Environmental Objectives: Australia’s Experience, DASET, Canberra, 1993 quoted in Ramsey R. and Rowe G., Environmental Law and Policy in Australia, Butterworths, Sydney, 1995. James, P. 1996a, ‘Introduction’, in: P. James (ed.), The State in Question: Transformations of the Australian State, Allen and Unwin, Sydney, 1996, pp. 1-7. James, P., ‘As Nation and State: a Postmodern Republic Takes Shape’, in: P. James (ed.), The State in Question: Transformations of the Australian State, Allen and Unwin, Sydney, 1996, pp. 224-252. Janes, B., SPCC Discussion Paper-Possible Reforms to Legislation and Administration of Hazardous Chemicals in New South Wales, Internal document, SPCC, Bankstown, July 1982. Janes, B., (SPCC Officer A) SPCC Officer in charge of the drawing-up of the EHCA, Personal Interview, Castle Hill, 10 January 1992. Jasanoff, S., Risk Study and Political Culture: A Comparative Study of Science in the Policy Context, Russel Sage Foundation, New York, 1986. Jasanoff, S., Fifth Branch - Science Advisers as Policy Makers, Harvard University Press, Harvard, 1990. Johnson, J., ‘The Solution to Pollution’, Pollution Perspectives Program and Conference Papers, EDO, Sydney, 1997. Johnston, M., ‘Systemic Environmental Damage: The Challenge to International Law and Organisation’, Syracuse J L & Commerce, 1985, 12, pp. 255-282. Jordan, G., ‘Iron Triangles, Woolly Corporatism, and Elastic Nets: Images of the Policy Process’, Journal of Public Policy, 1981, 1, pp. 95-123. Keane, J., ‘Introduction’, in: J. Keane (ed.), Contradictions of the Welfare State, the MIT Press, Cambridge, 1984, pp. 11-34. Kellow, A., ‘The Environment’, in M. Laffin and M. Painter (eds.), Reform and Reversal, Macmillan Education Australia, South Melbourne, 1995, pp. 256-269. Kellow, A.,‘ Public Policy- Help or Hindrance to the Successful Management of the Environment’, Proceedings of the Public Policy and Environment Conference, December 5 and 6, 1996, Royal Institute of Public Administration of Australia. Kelly, P., The End of Certainty, Allen and Unwin, Sydney, 1992.
250 Kinrade, P., ‘Towards Ecologically Sustainable Development: The Role and Shortcomings of Markets’, in: R. Eckersley (ed.), Markets, the State and the Environment, Macmillan Education Australia Pty. Ltd., South Melbourne, 1995, pp. 86-109. Kortian, G., Metacritique, The Philosophical Argument of Jurgen Habermas, Cambridge University Press, Cambridge, 1980. Kymlicka, W., Contemporary Political Philosophy, Clarendon Press, Oxford, 1990. Laffin, M., and Painter, M., ‘Introduction’, Reform and Reversal: Lessons from the Coalition Government in NSW 1988-1995, Macmillan Education Australia Pty Ltd., South Melbourne, 1995. Lash, S. and Urry, J., The End of Organised Capitalism, Polity Press, Cambridge, 1987. Lash, S., ‘Expert- Systems or Situated Interpretation? Culture and Institutions in Disorganised Capitalism’, in: U. Beck, A. Giddens and S. Lash, Reflexive Modernisation, Polity Press, Cambridge, 1994, pp. 198-215. Lash, S., and Whimster, S., ‘General Comments’, in: S. Lash and S. Whimster (eds.), Max Weber, Rationality and Modernity, Allen and Unwin, London, 1987, pp. 1- 34. Lash, S., Sociology of Postmodernism, Routledge, London and New York, 1989. Lash, S., Szerszynski, B. and Wynne, B. ‘ Introduction: Ecology, Realism and the Social Sciences’, in: S. Lash, B. Szerszynski, and B. Wynne (eds.), Risk, Environment and Modernity, Sage Publications, London, 1996, pp. 1-26. Leece, D., (SPCC Officer B), Personal Interview, SPCC, Bankstown, 28 October 1991. Lemert, C., ‘Poststructuralism and Sociology’, in: S. Seidman (ed.), The Postmodern Turn, Cambridge University Press, Cambridge, 1994, pp. 263-279. Levi, M., ‘Are Political Acts Really so Cheap?’ in: G. Brennan and C. Walsh (eds.), Rationality, Individualism and Public Policy, Centre for Research on Federal Financial Relations, Canberra, 1990, pp. 141-144. Lijphart, A., Democracies: Patterns of Majoritarian and Consensus Government in Twenty-one Countries, Yale University Press, New Haven, 1984. Lloyd, G., ‘Democracy, Philosophy and Science in Ancient Greece’, Democracy, the Unfinished Journey, in: J. Dunn (ed.), Oxford University Press, Oxford, 1992. Lloyd-Smith, M., ‘National Pollution Inventory: A National Environment Protection Measure’, 17th Annual National Environmental Law Conference, Canberra, 25- 27 March 1998. Loveday, P., ‘Corporatist Trends in Australia’, Politics, 1984, 19, pp. 46-51. Lowe, I., ERDIC Annual Lecture, University of New South Wales, Kensington, 4 November 1998. Luhmann, N., The Differentiation of Society, Columbia University Press, New York, 1982. Luhmann, N., Political Theory of the Welfare State, 1987.
251 Luhmann, N., Ecological Communication, Polity Press, Cambridge, 1989. Luhmann, N., ‘The Concept of Society’, Thesis 11, 1992, 31, pp. 68-72. Lyotard, J.F., The Postmodern Condition, University of Manchester Press, Manchester: 1984. Maier, C., ‘Democracy since the French Revolution’, Democracy, the Unfinished Journey, in J. Dunn (ed.), Oxford University Press, Oxford, 1992, pp. 125-154. Marcuse, H., Eros and Civilisation, Sphere Press, Great Britain, 1969. Marin, B., ‘From Consociationalism to Technocorporatism: the Austrian Case as a Model-Generator?’, in I. Scholten (ed.), Political Stability and Neo-Corporatism, Sage Series in Neo-Corporatism, edited by P. Schmitter, Sage Publications, London, 1987. Marsh, C., The Control of Environmentally Hazardous Chemicals in NSW, unpublished thesis, submitted in fulfillment of the course requirement for Law 514, School of Law, Macquarie University, Sydney, 1984. Marshall, G., A Dictionary of Sociology, Oxford University Press, Oxford, 1998. Martin, R., ‘Pluralism and the New Corporatism: a Reply’, Political Studies, 1983, 31, pp. 461-462. Matten, D., ‘Strategy Follows Structure: Environmental Risk Management in Commercial Enterprises’, Business Strategy and the Environment, 1995, 4, pp. 107-116. Matten, D., 1996a, ‘Enforcing Sustainable Development by Legislation: Entrepreneurial Consequences of the New German Waste Management Act’, Sustainable Development, 1996, 4, pp. 130-137. Matten, D., 1996b, ‘Environmental Risk Management in Commercial Risk Enterprises’, The Geneva Papers on Risk and Insurance-Issues and Practice, 1996, 21, pp. 360-382. Matthews, T., ‘Employer’s Associations, Corporatism and the Accord’, in S. Bell and B. Head (eds.), State, Economy and Public Policy, OUP, Melbourne, 1994. Mayntz, R., ‘Legitimacy and the Directive Capacity of the Political System’, in: L. Lindberg (ed.), Stress and Contradictions in Modern Capitalism, D. C. Heath and Co, USA and Canada, pp. 261-274. McAllister, I. and Bean, C., ‘Explaining Labor’s Victory’, in: C. Bean, I. McAllister, and J. Warhurst (eds.), The Greening of Australian Politics, Longman Cheshire, Melbourne, 1990, pp. 155-180. McDonell, G., ‘Scientific and Everyday Knowledge: Trust and the Politics of Environmental Initiatives’, Social Studies of Science, 1997, 27, pp. 819-863. McEachern, D., ‘Environmental Policy in Australia 1981-1991: A Form of Corporatism’, Australian Journal of Public Administration, 1993, 52, pp. 173-185. McFarland, R., (NSW EPA Officer C), Contaminated Sites Division, NSW EPA, Chatswood, NSW EPA, Personal Interview, 19 September 1993 and 15 May 1995.
252 McFarland, R., Contaminated Sites, A Regulatory Perspective, Internal Publication NSW EPA, Chatswood, 1995. Meadows, D.H., Meadows, D.L., Randers, J., Behrens III, W.W., The Limits to Growth: A Report of the Club of Rome’s Project on the Predicament of Mankind, Universe Books, New York, 1972. Merchant, C., Radical Ecology, Routledge, London, 1992. Merquior, J.C., Foucault, Fontana Press, London, 1985. Mill, J.S., Utilitarianism, Liberty, and Representative Government, J. M. Dent and Sons Ltd., London, 1910. Miller, D., ‘Deliberative Democracy and Social Choice’ in: D. Held (ed.), Prospects for Democracy, Polity Press, Cambridge, 1993, pp. 74-92. Minogue, K., ‘Thomas Hobbes and the Philosophy of Absolutism’, in: D. Thomson (ed.), Political Ideas, Penguin Books Ltd., Harmondsworth, 1966, pp. 48-64. Mueller, D., ‘Democracy: the Public Choice Approach’, in: G. Brennan and L. Lomasky (eds.), Politics and Process: New Essays in Democratic Thought, Cambridge University Press, Cambridge, 1989, pp. 78-95. Musgrave, B., (TEC Representative B), Telephone Interview, 12 December 1991, Sydney. NACC, Minutes of NACC meeting, 20 September 1983, Files on the EHCA (NSW) 1985, NSW EPA, Chatswood, examined 1994. National Toxics Network, Sentinel News Bulletin, March 1998. National Toxics Network, Sentinel News Bulletin, November 1997. NELA, Australian Environmental Law News, Issue 4, December 1997, p. 9. New Scientist, 30 May 1998. Newman, O., The Challenge of Corporatism, The Macmillan Press Ltd., London, 1981. Nichols, J.K., and Crawford, P.J., Managing Chemicals in the 1980's, OECD, Paris, 1983. Norwegian Ministry of the Environment, ‘Summary Report of the Workshop on Consumption in a Sustainable World’, Sustainable Developments, 1998, 16, pp. 1-8. NSW Agriculture, A Pesticide Risk Reduction Policy for NSW, NSW EPA, Chatswood, 1998. NSW Cabinet Office, Participation and the NSW Policy Process: a Discussion Paper for the Cabinet Office, The Cabinet Office, Sydney, 1998. NSW EPA 1994a, New South Wales State of the Environment, 1993, Highlights, NSW EPA, Bankstown, 1994.
253 NSW EPA 1994b, Environment Protection Authority: Summary of Activities 1993-94, NSW EPA, Chatswood, 1994. NSW EPA 1994c, Who Cares about the Environment? A Benchmark Survey of the Environmental knowledge, Skills, Attitudes and Behaviour of the People of NSW, NSW EPA, Chatswood, 1994. NSW EPA 1995a, Summary of Activities 1994-95, NSW EPA, Chatswood, 1995. NSW EPA 1995b, Regulatory Impact Statement: Pesticides Regulation 1995, NSW EPA, Chatswood, 1995. NSW EPA 1995c, Waste Reforms, Waste Management Branch, NSW EPA, Chatswood, 1995. NSW EPA 1996a, Managing Contaminated Land in NSW: Proposals for a New Legislative and Administrative Framework, A NSW Government Green Paper, NSW EPA, Chatswood, 1996. NSW EPA 1996b, The Future of NSW State of the Environment Reporting, Discussion Paper, NSW EPA, Chatswood, 1996. NSW EPA 1996c, Summary of Affairs: NSW EPA June 1996, NSW EPA, Chatswood, 1996. NSW EPA 1996d, Regulatory Impact Statement: Proposed Waste Minimisation and Management Regulation 1996, NSW EPA, Chatswood, 1996. NSW EPA 1996e, Protection of the Environment Operations Bill 1996: Public Discussion Paper, A NSW Government Green Paper, NSW EPA, Chatswood, 1996. NSW EPA 1996f, A New Approach to Environmental Education in NSW, A NSW Government Green Paper, NSW EPA, Chatswood, 1996. NSW EPA 1997a, Industry and the Environment, NSW EPA, Chatswood, 1997. NSW EPA 1997b, State of the Environment Report, NSW EPA, Chatswood, 1997. NSW EPA 1997c, Enviro Network News, NSW EPA Chatswood, September 1997. NSW EPA 1997d, ‘Improving Pesticide Management in NSW’, Discussion Paper, NSW EPA, Chatswood, 1997. NSW EPA 1998a, Tradeable Credits Scheme for Greenhouse Gases-NSW Electricity Sector, Environmental Economics Series, NSW EPA, Chatswood, 1998. NSW EPA 1998b, The NSW EPA’s First Phase, NSW EPA, Chatswood, 1998. NSW EPA 1998c, The New Environment Protection Legislation’, Internal document of the NSW EPA, Chatswood, 1998. NSW EPAd, Environmental Economics Series: Using Economic Instruments to Control Salinity in the Hunter River, NSW EPA, Chatswood, 1994. NSW EPA Officer F, Telephone Interview, 11 September 1996, Sydney. NSW EPA Officer G, Telephone Interview, 12 February 1998, Sydney. O’Connor, J., The Fiscal Crisis of the State, St.Martin’s Press, New York, 1973.
254 O’Connor J., Accumulation Crisis, Basil Blackwell, Oxford, 1984. O’Riordan, T., ‘The New Environmentalism and Sustainable Development’, Science of the Total Environment, Nos1/2, 108, p. 5, 1991. O’Riordan, T., ‘The Politics of Sustainability’, in: R. K. Turner (ed.), Sustainable Environmental Economics and Management’, Belhaven Press, London and New York, 1993. O’Riordan, T., ‘The Precaution Principle in Environmental Management’ in R. Ayres and U. Simonis (eds.), Industrial Metabolism, the United Nations University Press, Tokyo, 1994, pp. 299-318. Odgers, B., 1996, quoted in ‘Discussion’, Environmental Economics Seminar Series: Environmental Policy and International Competitiveness, Department of Sport, Environment and Territories, Canberra, 1996, pp. 5-8. Odum, E. Ecological Vignettes, Harwood, The Netherlands, 1998. OECD, The State of the Environment in OECD Member Countries, OECD, Paris, 1979. Offe, C., 1975a, ‘The Theory of the Capitalist State and the Problem of Policy Formation’, in Leon L. Lindberg, (ed.), Stress and Contradictions in Modern Capitalism, D.C. Heath and Co., USA and Canada, 1975, pp. 125-144. Offe, C. 1975b, ‘Introduction to Part II’, Stress and Contradictions in Modern Capitalism, Leon L. Lindberg, (ed.), D. C. Heath and Co: USA and Canada, 1975, p. 245-259. Offe, C., ‘Reaching for the Brake: the Greens in Germany’, New Political Science, 1983, 11, pp. 45-52. Offe, C. 1984a, ‘Crises of Crisis Management: Elements of a Political Crisis Theory’, in: J. Keane (ed.), Contradictions of the Welfare State, The MIT Press, Cambridge, 1984, pp. 35-64. Offe, C. 1984b, ‘Reflections on the welfare state and the future of socialism’, in: J. Keane, (ed.), Contradictions of the Welfare State, The MIT Press, Cambridge, 1984, pp. 252-300. Offe, C. 1984c, ‘European Socialism and the Role of the State’, in: J. Keane (ed.), Contradictions of the Welfare State, The MIT Press, Cambridge, 1984, pp. 239- 251. Offe, C., 1984d, ‘”Ungovernability”’: the Renaissance of Conservative Theories of Crisis’, in: J. Keane (ed.), Contradictions of the Welfare State, The MIT Press, Cambridge, 1984, pp. 65-87. Offe, C., ‘New Social Movements: Challenging the Boundaries of Institutional Politics’, Social Research, 1985, 52, pp. 817-868. Offe, C. 1985a, ‘The Attribution of Public Status to Interest Groups’, in J. Keane (ed.), Disorganised Capitalism, Polity Press, Cambridge, 1985, pp. 221-258. Offe, C., 1985b, ‘Two Logics of Collective Action’, in J. Keane (ed.), Disorganised Capitalism, Polity Press, Cambridge, 1985, pp. 221-258.
255 Offe, C., and Ronge, R., ‘Theses on the Theory of the State, Classes, Power and Conflict’, in: A. Giddens and D. Held (eds.), Macmillan, 1983, pp. 249-256. Offe, C., Modernity and the State, Polity Press, Cambridge, 1996. Ogle, L., ‘Protection of the Environment Operations Bill: Keeping the Public in the Dark’, Pollution Perspectives Program and Conference Papers, EDO, Sydney, 1997. Outhwaite, W., Habermas: A Critical Introduction, Polity Press, Cambridge, 1994, pp. 138-139. Paehlke, R. and Torgerson, D., ‘Environmental Politics and the Administrative State’ in: R. Paehlke and D. Torgerson (eds.), Managing Leviathan: Environmental Politics and the Administrative State, Broadview Press, Peterborough, Ontario, 1990, pp. 285-301. Painter, M., ‘Reshaping the Public Sector’, in B. Galligan, I. McAllister and J. Ravenhill (eds.), New Developments in Australian Politics’ Macmillan Education Australia, South Melbourne, 1997, pp. 148-166. Panitch, L., ‘Recent Theorisations of Corporatism: Reflections on a Growth Industry’, British Journal of Sociology, 1980, 31, pp. 159-185. Papadakis, E., ‘Minor Parties, the Environment and the New Politics’, in: C. Bean, I. McAllister, and J. Warhurst (eds.), The Greening of Australian Politics, Longman Cheshire, Melbourne, 1990, pp. 33-53. Papadakis, E., Politics and the Environment, Allen and Unwin, St. Leonards, 1993. Parsons, S., ‘On the Logic of Corporatism’, Political Studies, 1988, 36, pp. 515-523. Pearce, D., Markanya, A., and Barbier, E., Blueprint for a Green Economy, Earthscan Publications Ltd., London, 1989. Pearce, D., et al., Blueprint 3: Measuring Sustainable Development, Earthscan Publications, London, 1993. Pennock, J., ‘The Justification of Democracy’, in: G. Brennan and L. Lomasky (eds.), Politics and Process: New Essays in Democratic Thought, Cambridge University Press, Cambridge, 1989, pp.11-41. Perkins, P., ‘The Effect of Globalisation on Environmental Management’, Paper presented at the EIA 11th Annual National Conference, December 1998, Sydney. Phelan, A., ‘World Clean-up Campaign Turns it on for Fresh Water’, SMH 15 September 1997. Piccone, P., ‘Introduction’, in: A. Arato and E. Gebhardt (eds.), The Essential Frankfurt School Reader, Basil Blackwell, Oxford, 1978 pp. xi-xxiii. Piccone, P., ‘Does Critical Theory Need Saints or Foundations?’ Telos, 1991, 87, pp. 146-158. Pierson, C., ‘Democracy, Markets and Capital: Are There Necessary Economic Limits to Capital?’ in: D. Held (ed.), Prospects for Democracy, Polity Press, Cambridge, 1993, pp. 179-199.
256 Poggi, G., The Development of the Modern State- A Sociological Introduction, Hutchinson and Co., London, 1978. Pollak, J., (TEC Representative A), Telephone Interview, 8 December 1991, Sydney. Productivity Commission, ‘Inquiry into Implementation of ESD by Commonwealth Departments and Agencies,
257 Salleh, A., Ecofeminism as Politics, Zed Books Ltd, London and New York, 1997. Salvaris, M., ‘Citizenship and Progress’, in R. Eckersley (ed.), Measuring Progress: Is Life Getting Better? CSIRO, Collingwood, 1998, pp. 35-52. Saul, J. Ralston, The Unconscious Civilisation, Penguin Books Australia Ltd., Ringwood, 1997. Schaltegger, S., and Muller, K., ‘Calculating the True Profitability of Pollution Prevention’ in: M. Bennett and P. James (eds.) The Green Bottom Line, Greenleaf Publishing, Sheffield, 1998, pp. 86-99. Schmidheiny, S., Changing Course: A Global Business Perspective on the Environment, MIT Press, Cambridge, Mass., 1992. Schmitter, P., ‘Still the Century of Corporatism?’, in P. Schmitter and G. Lehmbruch (eds.), Trends towards Corporatist Intermediation, Sage Publications, London, 1979. Schmitter, P., ‘Democratic Theory and Neo-corporatist Practice’, Social Research, 1983, 50, pp. 885-928. Schofield, N., ‘Rational Choice and Political Economy’, in: J. Friedman, The Rational Choice Controversy, Yale University Press, New Haven and London, 1996, pp. 189-212. Scholten, I., ‘Introduction: Corporatist and Consociational Arrangements’, in I. Scholten (ed.), Political Stability and Neo-Corporatism, Sage Publications, California, 1987. Schutz, A., ‘Problems of Interpretative Sociology’, in A. Ryan (edit.), Philosophy of Social Explanation, Oxford University Press, London, 1973, pp. 203-217. Seidman, S., ‘Introduction’, in: S. Seidman (ed.), Jurgen Habermas on Society and Politics-A Reader, Beacon Press, Boston, 1989, pp. 1-28. Seidman, S., and Wagner, D., ‘Introduction’, in: S. Seidman and D. Wagner (eds.), Postmodernism and Social Theory, Basil Blackwell, Cambridge, 1992, pp. 1-14. Self, P., Political Theories of Modern Government, Allen and Unwin, Sydney, 1985. Self, P., Government by the Market? The Politics of Public Choice, The Macmillan Press Ltd., Basingstoke, 1993. Selinger, B., Chemistry in the Marketplace, 4th edition, Harcourt Brace Jovanovich (Australia) Pty Ltd., Marrickville, 1987. Shepherd, N., ‘Corporate Environmental Reporting- a NSW EPA Perspective’, Groundwork, 1998, 1, p. 15. Shiva, V., ‘The Greening of the Global Reach’, in: W. Sachs (ed.), Global Ecology, Zed Books Ltd., London, 1993, pp. 149-154. Short K., Quick Poison, Slow Poison, Kate Short, St Albans, 1994. Simonis, U., ‘Environmental Policy in the Federal Republic of Germany - Curative and Precautionary Approaches’, The Precautionary Principle Conference Papers, Institute of Environmental Studies, UNSW, Kensington, 1993.
258 Simonis, U., ‘ Industrial Restructuring in Industrial Countries’, in: R. Ayres and U. Simonis (eds.), Industrial Metabolism, The United Nations University Press, Tokyo, 1994, pp. 31-54. Skocpol, T., ‘Bringing the State Back In: Strategies of Analysis in Current Research’, in: P. Evans, D. Rueschemeyer and T. Skocpol (eds.), Bringing the State Back In, Cambridge University Press, Cambridge, 1985, pp. 3-43. Smith, M, Towards Ecological Citizenship, Open University Press, Buckingham, 1998. SMH 1984a, ‘Letters’, SMH, 17 December 1984. SMH 1984b, ‘Letters’, 21 November 1984. Somers, M., ‘Narrating and Naturalising Civil Society and Citizenship Theory: The Place of Political Culture and the Public Sphere’, Sociological Theory, 1994, 31, pp. 229-274. Sorenson, A., Personal communication from Andrew Sorenson, EDO Senior Solicitor, November 1997, Sydney. SPCC, Annual Report, 1981-82: State Pollution Control Commission, SPCC, Bankstown, 1982. SPCC, Annual Report, 1982-83: State Pollution Control Commission, SPCC, Bankstown, 1983. SPCC 1984a, Annual Report, 1983-84: State Pollution Control Commission, SPCC, Bankstown, 1984. SPCC 1984b, Internal memo from B. Janes to W. Forrest, Files on the EHCA, SPCC Bankstown, examined January 1992. SPCC 1984c, A Proposal for an Environmentally Hazardous Chemicals Bill, Internal document, SPCC, February 1984. SPCC 1985a, Protecting the Environment from Chemicals, The Environmentally Hazardous Chemicals Act, Brochure printed by the SPCC, Bankstown, 1985. SPCC 1985b, Submissions Summary: EHCA, Internal Document, SPCC, Bankstown, 1985. Speers, A., ‘Enforcement Provisions - Is the Balance Right?’, Pollution Perspectives Program and Conference Papers, EDO, Sydney, 1997. Stein, Justice Paul, and Mahoney, S., ‘Sustainable Development: From Theory to Practice’, paper delivered to the Australian Centre for Environmental Law, Third Environmental Outlook Conference, 1997. Stewart, R., ‘Models for Environmental Regulation: Central Planning Versus Market- Based Approaches’, Boston College Environmental Law Review, 1992, 19, pp. 547-562. Stilwell, F., ‘From ‘Fightback’ and ‘One Nation’ to an Alternative Economic Strategy’, in: S. Rees, G. Rodely and F. Stilwell (eds.), Beyond the Market: Alternatives to Economic Rationalism, Pluto Press, Leichhardt, 1993, pp. 189-202. Streeck, W., and. Schmitter, P.C., ‘Community, Market, State and Associations?:The prospective contribution of interest governance to social order’, in: W. Streeck
259 and P. C. Schmitter, (eds.), Private Interest Government, Beyond Market and State, Sage Publications, London, 1985, pp. 1-28. Streeck, W., and Schmitter, P.C., ‘Foreward’, in I. Scholten (ed.), Political Stability and Neo-Corporatism, Sage Publications, London, 1987. Stretton, H., and Orchard, L., Public Goods, Public Enterprise, Public Choice, The Macmillan Press Ltd., Basingstoke, 1994. Szasz, A., Ecopopulism: Toxic Waste and the Movement for Environmental Justice, University of Minnesota Press, Minneapolis, 1994. Szerszynski, B., ‘On Knowing What to Do: Environmentalism and the Modern Problematic’, in: S. Lash, B. Szerszynski, and B. Wynne (eds.), Risk, Environment and Modernity, Sage Publications, London, 1996, pp. 84-103. Tait, J., Brown, S., and Carr, S., ‘Pesticide Innovation and Public Acceptability: The Role of Regulation’ in L. Roberts and A. Weale (eds.), Innovation and Environmental Risk, Belhaven Press, London, 1991. Taplin, R., ‘Environmental Politics in the Wran Style: A Decade of Juggling Rainforest Preservation with Urban and Industrial Developmentalism’, in: P. Hay, R. Eckersley and G. Holloway (eds.), Environmental Politics in Australia, Board of Environmental Studies, University of Tasmania, 1989. TEC, ‘Pesticide Pollution: Act Now’, Media Release, TEC, Sydney, 7 May 1998. Telos Staff, ‘Populism vs. the New Class: The Second Elizabethtown Telos Conference (April 5-7, 1991), Telos, 88, Summer 1991. TFCTS, Final Report: Task Force on Toxic Substances, Division of Health Services, NSW Department of Health, NSW, 1983. Tomasic, R., ‘Ideology and Coherence in the Australian Legal Order’, in: J. M. Najman and J. S. Western (eds.), A Sociology of Australian Society, University of Queensland, St. Lucia, 1988, pp. 124-161. Torgerson, D. 1990a, ‘Limits of the Administrative Mind: The Problem of Defining Environmental Problems’, in: R. Paehlke, and D. Torgerson, (eds.), Managing Leviathan: Environmental Politics and the Administrative State, Broadview Press, Peterborough, Ontario, 1990, pp. 115-163. Torgerson, D. 1990b, ‘Obsolescent Leviathan: Problems of Order in Administrative Thought’, in:R. Paehlke and D. Torgerson (eds.), Managing Leviathan: Environmental Politics and the Administrative State, Broadview Press, Peterborough, Ontario, 1990, pp. 17-33. Toxic and Hazardous Chemicals Committee of the TEC, Letter to Dr. W. G. Forrest: SPCC 20 August 1984, Files on the EHCA (NSW) 1985, SPCC, Bankstown, examined 1992. Trainer, T., ‘If You Really Want to Save the Environment’, Australian Journal of Environmental Education, 1994, 10, pp. 59-70. Tratt, K., (NSW EPA Officer D), Personal Interview, 6 January 1992, Bankstown. Tratt, K., (NSW EPA Officer D), Telephone Interview, 8 March 1995, Sydney.
260 Van der Straaten, J. and Ugelow, J., ‘Environmental Policy in the Netherlands’ in: M. Whintle (ed.), Rhetoric and Reality in Environmental Politics, Ashgate Publishing Co., Aldershot, 1994. Vogler, J., ‘The Politics of the Global Environment’, in: C. Bretherton and G. Ponton (eds.), Global Politics: An Introduction, Basil Blackwell, Cambridge, 1996, pp. 194-219. Wainright, R., ‘New Waste Laws Hailed as Gutsy’, SMH 16 November 1995. Walker, F., ‘Chemical Controls: Secrecy Provisions Upset Greenies’, The National Times, 22-28 February 1985. Warhurst, J., ‘The National Campaign’, in: C. Bean, I. McAllister, and J. Warhurst (eds.), The Greening of Australian Politics, Longman Cheshire, Melbourne, 1990, pp. 17-32. Watts, R., ‘Laborism and the State: Confronting Modernity’, in: P. James (ed.), The State in Question: Transformations of the Australian State, Allen and Unwin, Sydney, 1996, pp. 38-73. Weale, A., The New Politics of Pollution, Manchester University Press, Manchester, 1992. Weber, M., The Sociology of the Social Sciences, translated and edited by Edward A. Shils and Henry A. Finch, The Free Press: USA, 1949, p. 57 Weber, M., ‘Parliamentary Government in a Reconstructed Germany’, in G. Roth and C. Wittich (eds.), Economy and Society, Bedminster Press, New York, 1968, pp. 1381-1392. Weber, M., ‘Legitimacy, Politics and the State’, in: W. Connolly (ed.), Legitimacy and the State, Basil Blackwell, Oxford, 1984, pp. 32-62. Welford, R., ‘Environmental Issues and Corporate Environmental Management’ in: R. Welford (ed.), Corporate Environmental Management, Earthscan Publications, London, 1996, pp. 1-12. Welford, R., Hijacking Environmentalism, Earthscan Publications Ltd., London, 1997. Wells, K., EDO Solicitor, Personal Communication, 13 January 1998, Sydney. West, J., ‘Goals, Strategy and Structure: How the Environment Movement Organised for Victory in the 1980s’, in: I. Marsh (ed.), The Environmental Challenge, Longman Cheshire Pty. Ltd., Melbourne, 1991, pp. 135-156. Whitlam, G., The Whitlam Government, Penguin Books Australia Ltd., Ringwood, Victoria, 1985. Whittaker, S. ‘Local Agenda in Australia’, The Australian Local Government Environment Year Book, Executive Media Pty. Ltd., Melbourne, 1997, pp. 23-31. Williamson, P., Corporatism in Perspective: An Introductory Guide to Corporatist Theory, Sage Publications, London, 1989. Wills, I., Economics and the Environment, Allen and Unwin, St. Leonards, 1997. Woodford, J., ‘Australia’s Greenhouse Bombshell’, SMH 30 April 1997.
261 Woodford, J., ‘Clean up Nation before its too Late’, SMH 12 September 1997. Workcover NSW, A Guide to the Hazardous Substances Regulation and Control code of practice, Workcover Authority of NSW, Sydney, 1996. World Commission on Environment and Development, Our Common Future, Oxford University Press, Oxford, 1987. Worster, D., ‘The Shaky Ground of Sustainability’, in: W. Sachs (ed.), Global Ecology, Zed Books Ltd., London, 1993, pp. 132-145. Wynne, B. and Mayer, S., ‘How Science Fails the Environment’, New Scientist, 1993, 138, pp. 33-35. Wynne, B., ‘May the Sheep Safely Graze?’ in: S. Lash, B. Szerszynski and B. Wynne (eds.), Risk, Environment and Modernity, Sage Publications, London, 1996, pp. 44-83. Wynne, B., ‘Summary and Conclusions’, in: B. Wynne (ed.), Risk Management and Hazardous Waste, Springer-Verlag, New York, 1987, pp. 397-440. Yeager, P., The Limits of Law, Cambridge University Press, Cambridge, 1991. Yearley, S., Sociology, Environmentalism, Globalisation, Sage Publications, London, 1996. Yergin, D., and Stanislaw, J., The Commanding Heights, Simon and Schuster, New York, 1998. Young, M., Sustainable Investment and Resource Use, UNESCO, Paris, 1992.
262 Glossary AAC Australian Agricultural Council ABARE Australian Bureau of Agricultural and Resource Economics ACF Australian Conservation Foundation ACIC Australian Chemical Industry Council ACTU Australian Council of Trade Unions AEC Australian Environment Council AEC Australian Environment Council ALP Australian Labor Party APM Australian Paper Manufacturers AVCA Australian and Veterinary Chemicals Association BLF Builders Labourers Federation CCA Clean Air Act (NSW) 1961 CPP Coalition for Public Protection CWA Clean Waters Act (NSW) 1970 DDT dichlordiphenyltrichlorethane DEST Department of Environment, Sport and Territories (Cwlth) DGA Dangerous Goods Act (NSW) 1975 DIR Department of Industrial Relations (NSW) DUAP Department of Urban Affairs and Planning (NSW) EC European Committee EDO Environmental Defenders Office EEC European Economic Community EHCA Environmentally Hazardous Chemicals Act (NSW) 1985 EHCB Environmentally Hazardous Chemicals Bill EIA Environment Institute of Australia EIS Environmental Impact Statement ELA Environment Law Association EPA Environmental Protection Agency (USA) EPAA Environmental Planning and Assessment Act (NSW) 1979 EPLJ Environment Planning and Law Journal
263 ESD Ecologically Sustainable Development ESD Act Local Government Amendment (ESD) (NSW) 1997 FOE Friends of the Earth HCAC Hazardous Chemicals Advisory Committee HORIHC House of Representatives Inquiry into Hazardous Chemicals (Cwlth) IDA Integrated Development Assessment Act (NSW) 1997 IFCS Intergovernmental Forum on Chemical Safety IGAE Intergovernmental Agreement on the Environment IISD International Institute for Sustainable Development INC Intergovernmental Negotiating Committee INS Interim Notification Scheme IOMC Inter-Organisation Programme on the Sound Management of Chemicals IPCS International Program on Chemical Safety NACC National Advisory Committee on Chemicals NCNAS National Chemicals Notification and Assessment Scheme NEPA National Environmental Policy Act (USA) NEPM National Environment Protection council NEPM National Environment Protection Measure NH and MRC National Health and Medical Research Council NICNAS National Industrial Chemicals Notification and Assessment Scheme NOHSC National Occupational Health and Safety Commission NOHSC National Occupational Health and Safety Council NPI National Pollutant Inventory NRA National Registration Authority for Agricultural and Veterinary Chemicals NSW EPA NSW Environment Protection Agency OECD Organisation for Economic Cooperation and Development PCBs Polychlorinated Biphenyls PEP Protection of the Environment Policy PIAC Public Interest Advocacy Centre POEOA Protection of the Environment Operations Act (NSW) 1997 POPS Persistent Organic Pollutants
264 PROTEA Protection of the Environment Administration Act (NSW) 1992 SA South Australia SEPP State Environmental Protection Policies SMH Sydney Morning Herald SPCC State Pollution Control Commission SPCCA State Pollution Control Commission Act (NSW) 1970 TEC Total Environment Centre TFCTS Task Force into the Control of Toxic Substances TSCA Toxic Substances Control Act (USA) 1976 UNEP GC United Nations Environment Programme Governing Council WHO World Health Organisation WMMA Waste Management and Minimisation Act (NSW) 1995
265 APPENDIX A
Flow Charts of the Operation of the EHCA (NSW) 1985: based on legislation as amended to 24 July 1995
266 OPERATION OF THE ENVIRONMENTALLY HAZARDOUS CHEMICALS ACT 1985 CHART ONE – FACTORS LEADING TO APPLICATIONS FOR ASSESSMENT
Radioactive substance YES – s.3
NO
Prescribed substance YES –s.3
Act has no application – Radioactive Substances Act or NO other legislation may apply – s.5
Physical YES Declared chemical waste NO Mixture – s.3 – s.10
NO YES
Listed chemical* Existing chemical YEScontrol order in effect** NO
NO
APPLICATION PROCEDURES YES FOR “PRESCRIBED ACTIVITIES”
*note 1: chemicals are listed when they appear in the inventory published by the EPA either as a result of assessment of chemicals or the adoption of a specified list – s.8 **note 2: chemical control orders re declared chemical waste may be made at any time – whether or not there is a pending application.- s.11 OPERATION OF THE ENVIRONMENTALLY HAZARDOUS CHEMICALS ACT 1985 CHART TWO – APPLICATION PROCEDURES AND PRINCIPLES RELATING TO “PRESCRIBED ACTIVITIES”
APPLICATION BY A PERSON WHO PROPOSES TO CARRY ON A “PRESCRIBED ACTIVITY” being: (a) manufacture or other use or possession of an “unlisted chemical” – s.12 (b) a “prohibited activity” involving an environmentally hazardous chemical or declared chemical waste – s.13
UNLISTED CHEMICAL – not listed in s.8 inventory – leads EXISTING CHEMICAL to application under s.12 CONTROL ORDER YES YES
Prohibited activities declared – s.13 application
NO
1. Hazardous Chemicals Advisory Committee advises or reports on assessment or Transfer of licence investigation – s.7 YES sought – s.29A
and/or NO 2. Environment Protection Authority makes order(s) - s.22, s.23, s.24, s.25
3. Notices etc given – s.21 New Licence sought – s.28
YES
Order not Prohibited Licence notified in activities conditions time declared imposed
No order Act does not made apply Appeal Procedures can be invoked under s.37, s.38, s.39 OPERATION OF THE ENVIRONMENTALLY HAZARDOUS CHEMICALS ACT 1985 CHART THREE – DEALING WITH CONTAMINATED PREMISES
PREMISES ARE DEEMED TO BE CONTAMINATED if by reason of being affected by a chemical or chemical waste they are:
(a) unsafe/unfit for habitation/occupation or (b) degraded in their capacity to support plant life or (c) otherwise environmentally degraded
- s.33 (and see very broad definition of “environment” in s.3
EPA considers contamination may occur as EPA has reasonable grounds to believe a result of proposed activities under a premises are becoming contaminated as licence or as a result of misadventure a result of “prescribed activity” – - s.34 whether/not occupied by a licensee – s.35*
CONDITIONS IMPOSED ON LICENCE Direction to Entry by EPA/public – s.34 occupant – s.35 authority – s.36
Right to appeal – s. 40
UNDERTAKING SECURITY FOR TO COMPLY – PERFORMANCE s.34(2) – s.34 (3) REMEDIAL ACTION – s.33(3), s.34, s.35, s.36
RECOVERY PROCEEDINGS
Licensee if an appropriate defendant – s.36 Other appropriate defendant – S.36(4)
*mote: this power is additional to the power under section 34 APPENDIX B
Item 1: Membership of the HCAC
Item 2: List of invited submissions to the EHCB
270 Item 1 Membership of the HCAC Members of the HCAC represent:
State Pollution Control Commission-two Department of Environment and Planning-one Department of Health-one Department of Industrial Relations-one Department of Agriculture-one Metropolitan Waste Authority-one Board of Fire Commissioners-one Department of Consumer Affairs-one Chamber of Manufacturers-one Labor Council of NSW-one Major users of chemicals-one Local government-one Environmental protection groups-one Experts with appropriate professional and technical qualifications-two
Source: Protecting the Environment from Chemicals: The Environmentally Hazardous Chemicals Act 1985, SPCC, Sydney, 1985.
Item 2
List of invited submissions to the EHCB The following were requested by the SPCC to make submissions concerning the EHCB: Workers Health Centre Labor Council Victorian Trades and Labor Council Printing and Allied Trades Employers Federation Plastics Industry Association Waste Management Authority Department of Industrial Relations Department of Health Board of Fire Commissioners Ministry for the Environment Department of Business and Consumer Affairs Department of Agriculture Local Government Associations Environmental Defenders Office Environmental Law Association Total Environment Centre Friends of the Earth Agriculture and Veterinary Chemicals Association Australian Chamber of Manufacturers Aerosol Association of Australia Australian Chemical Manufacturers Association
271 Australian Consumers Association Australian Chemical Industry Council Australian Conservation Foundation Chamber of Mines, Metals and Extractive Industries
Source: Interview, SPCC Officer B, 1992.
272 APPENDIX C
Item 1: Minister’s foreword to the POEO Bill
Item 2: Objects of the POEO Bill
Item 3: Minister’s opening address to the Pollution Perspectives Conference, Sydney, 20 March 1997
273 Item 1 Ministers foreword: Protection of the Environment Operations Bill The draft Bill is a landmark piece of legislation to replace our outdated core pollution control Acts, most of which were enacted more than 25 years ago. It modernises our environmental regulatory scheme, building on regulatory concepts such as cleaner production, integrated environmental management and ecologically sustainable development (NSW EPA 1996e).
Item 2 Objects of Protection of the Environment Operations Bill Chapter 1 Part 1.3 Objects of the Act The objects of the Act are as follows: (a) to rationalise, simplify and strengthen the regulatory framework for environment protection, (b) to improve the efficiency of administration of the environment protection legislation, (c) to provide mechanisms to protect the environment, consistently with the objectives of the EPA as set out in section 6 of the Protection of the Environment Act 1991, (d) to assist in the achievement of the objectives of the Waste Minimisation and Management Act 1995 (NSW EPA 1996e).
Item 3 Minister’s Opening Address to Pollution Perspectives Conference, Sydney, 20 March 1997 The Hon. Pam Allan, Minister for the Environment: I am very pleased to have the opportunity to open this conference, which will provide vital input to the Government’s proposed new environment laws. The NSW Government last year released the long awaited proposals for legislation to overhaul the State’s antiquated anti-pollution laws. The discussion paper and draft exposure bill, called the Protection of the Environment Operations Bill, will for the first time allow a truly comprehensive approach to environment protection in NSW. This Bill is the fourth plank in the Carr Government’s major reform agenda- saving our forests, reforming waterways management and introducing a world class waste management system. NSW is poised to lead Australia into the 21st century with a legislative package offering a tough, streamlined approach to catching and punishing polluters while giving incentives to responsible industry. The package is the second and crucial stage in the development of the EPA into an effective environmental watchdog with the tools to fight pollution and the mechanisms to broadly consult with the community and industry.
274 Its an essential step that has been needed to reinforce the law which set up the NSW EPA and to provide the EPA and local councils with powers they need to protect our environment. But this essential step, the one which gives more teeth to our environmental laws and streamlines an antiquated system, was ignored by the previous coalition government. They promised these reforms every year from 1992. As usual with their environmental performance, the real clean up job was left undone, just swept to the side and ignored. The major environment protection and pollution control acts cover air, water, waste, noise, and frame our system of pollution control regulation. Some of these Acts are as much as 35 years old. This refinement, consolidation and improvement of the laws will provide a better and more focused framework for environment protection in NSW, adding to our work in waste reform, endangered species protection and contaminated land management. It will be a framework that is ready to meet the challenges of the ever increasing and constantly changing threats to our neighbourhoods, bushland, waterways, oceans and the air we breathe. In order to take this essential step, we all- industry, state government agencies, local government and the community-will need to make some changes to the way we do things. Because all change is difficult and so many different groups and organisations are affected, the Government has committed to an unprecedented program of broad consultation on legislation. That consultation has been designed to allow for the maximum input from interested groups, such as environment, industry, local government, academic and other groups and individuals. The Bill which will eventually be considered by the Parliament will be improved by the refinement of public consolation. Today’s conference provides an ideal opportunity for the government to receive feedback from environment groups on the reform proposals. In addition to today’s conference, the EPA has been conducting seminars around the State for councils and the community and will be receiving written submissions until 14 April 1997. I want to highlight particularly several important features in the new legislation.
Protection of the Environment Policies
New Protection of the Environment Policies (PEPs) which carry the force of law will be created for the first time, to set goals, standards and guidelines for protecting specific geographic areas or reducing specific pollutants. PEPs area truly missing link in the current environmental management regime. We need PEPs to get environmental standards out in front of the development process.
275 The EPA and other authorities will have to consider PEPs before allowing new developments or activities, particularly to ensure that cumulative impacts are considered. I want the first two PEPs proposed to cover Sydney Harbour and the Hawkesbury/ Nepean river system. The PEPs will help us attack all pollution discharges affecting these waterway, including stormwater outlets, sewer overflows and leachate from contaminated sites.
Roles of Local and State Government
The Bill outlines a clearer definition of the roles each sphere of government can play and recognises the important role and responsibility of local councils in environment protection. We must have a more effective partnership with local councils to get real environment improvement. Council officers are on the ground- at the local level- and have important local knowledge. Within the fist few months of this Government, local councils were given new powers to control water pollution, which I am pleased to say has been used to good effect. This Bill goes further to bring the range of powers available to local government more in line with those of the EPA. What is needed now is a clear delineation of which activities and what levels of potential environmental impacts are best managed by which sphere of government. The Bill gives us a starting point for discussion on this issue by proposing a schedule of activities to be controlled by the EPA.’ I know that concerns have been raised about the resources needed by councils to take up these responsibilities. As a Government we are committed to dealing with this issue openly and in full consultation with councils. In this proposal, the environment protection workload of local governments will be able to be more directly funded through new powers for councils to charge fees for water licences and notices they issue, and they will continue to retain revenue from fines issued to polluters. The EPA can then concentrate on getting better and more consistent environmental outcomes on the proposals that are likely to impact on the whole state or on entire regions, rather than stepping on council’s toes in local matters. They will also be able to provide better researched guidelines to councils. The principle is clear- we must have active involvement by local councils in local environmental management and in planning decisions to get real environmental improvement.
Environment Protection Licences
We are committed to streamlining the regulatory system without losing effectiveness, The Bill will give us a better system of environment
276 protection regulation by making a major shift from the old ‘licences to pollute’ to new environment protection licences. Frankly, the current licensing scheme requires too much concentration on administrative and processing matters , and not enough on real environmental issues. Our proposals shift the focus and recognise that to force effective pollution reduction, we may need to allow for the longer timeframes needed to plan and undertake major capital investment. New environment protection licences are to be thoroughly reviewed by the EPA every three years, replacing outdated pollution control licences. New environment protection licences could require bonds to be posted, or cleaner production targets to be set, or increase the use of pollution reduction programs.
Planning and Environment Protection Links
Closer links between the planning approval and environment protection regulation systems are needed if we are to get rid of some of the red tape which bogs down business, industry and developers. The Government has also recognised that many of our environmental problems need to be dealt with more effectively at the planning stage. This Bill proposes a streamlined approach where the environment is considered very early, as a development proposal goes through the land use planning system. It also makes sense that the public participation on new proposals be conducted openly upfront at the planning stage. Independent environment protection licences will control on-going operations.
Increased Powers, Tougher Penalties, New Offences
We have brought forward increased powers to direct cleanup or environment protection action and request information. New offences, penalties and sentencing options will be available to the courts to use against those individuals and organisations that fail to take our environmental laws seriously. We brought forward some particularly innovative proposals for the Courts to use, like being able to impose costs on polluters -in addition to the already high penalties -if polluters got a financial benefit as a result of the polluting activities. The regulators will have increased powers to demand specific environmental information or require a mandatory audit of those industries or Government utilities that are dragging the environmental chain. At the same time, progressive and environmentally responsible industry or Government utilities would be able to keep confidential their own environmental voluntary audits and these will not be able to be used against them in an environmental prosecution.
277 Conclusion
The Protection of the Environment Operations Bill sets out to clean up our legislative environment while it gives us the teeth to clean up the NSW environment. The Bill gives us better legislation, better protection for a better environment.
278