Commonwealth will keep environmental power over state projects

The Franklin River in Tasmania, site of the landmark decision by the Commonwealth to stop a state-proposed dam. Flickr/Two Big Paws

The Commonwealth will not delegate to the states decisions under its national environmental laws in which the states have a “conflict of interest”. Federal Environment Minister Greg Hunt confirmed this significant commitment in an interview on ABC radio last Thursday.

The Coalition’s pre-election Policy for Resources and Energy promised to deliver a “one-stop-shop” for environmental approvals. The policy read like a complete handover of all Commonwealth decisions to the states.

But the Minister qualified the Coalition’s policy before the election when he was the Coalition’s environment spokesperson. He said in an interview reported in the Weekend Australian in May 2013 that: “some matters would be reserved where the Commonwealth would be the one-stop-shop but overwhelmingly it would be the states.”

In his recent radio interview, the Minister confirmed that the Commonwealth will retain control over decisions involving offshore Commonwealth waters, nuclear actions, and projects for which state governments are “likely to have a significant conflict of interest” as the proponent.

This alleviates the most significant concern about the one-stop-shop policy: where the state is the proponent they’ll have difficulty making an independent assessment.

Tasmanian Dam dispute re-visited

The famous battle to stop the flooding of the Franklin River in southwest Tasmania by the construction of the Gordon-below-Franklin Dam showed the importance of Commonwealth oversight over state projects.

In that dispute the Tasmanian Government’s Hydro-Electric Commission proposed to construct the dam with the vocal support of the state government.

Bob Hawke won the 1983 federal election on the back of a promise to stop the damming of the Franklin River. His government then won the most famous and influential environmental court case in Australian history.

It was a landmark in Australian constitutional law that showed the Commonwealth had enormous powers to enact laws to fulfil Australia’s international obligations.

Two steps forward, one back

In 1999 the Howard Government drew heavily on the powers recognised in the Tasmanian Dam case to enact the Environment Protection and Biodiversity Conservation Act (EPBC Act).

While not a panacea for environmental problems in Australia, the Act was a significant step forward by providing a more comprehensive and structured role for the Commonwealth in protecting the environment.

It provides a power to the Commonwealth to delegate final decisions on projects to state and territory governments but this has been virtually unused since the Act commenced.

At one stage the Gillard Government proposed to delegate final decisions to the states. This was placed on hold in late 2012 due to concerns it would create uncertainty and a patchwork regime across Australia.

The Queensland and Commonwealth environment ministers recently announced their agreement to a memorandum of understanding on delegating federal environmental decisions but few details have been provided. The announcement did not say whether the Commonwealth would retain power over state projects.

While the claim is made that the “one-stop shop will set high standards, make swift decisions and deliver certain outcomes”, it is more likely to be a messy, backwards step for environmental protection in Australia.

Complications of water trigger

The new water trigger created under the EPBC Act also complicates the one-stop-shop policy. Now-retired MP, Tony Windsor, who championed the trigger, managed to include a legislative prohibition on it being delegated to state governments.

Just how big a complication this creates is evident in Greg Hunt’s recent announcement that 47 coal seam gas and mining projects currently being assessed will need to consider the water trigger.

All in all, the “one-stop-shop” policy looks like creating the patchwork regulatory regime that the Gillard Government ultimately decided not to pursue.

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