Agreements and Structural Outcomes

CHAPTER THREE

3.1 THE INTERGOVERNMENTAL AGREEMENT ON THE ENVIRONMENT (IGAE)

The keystone of the Agreements of '92 is the InterGovernmental Agreement on the Environment (IGAE).  It has been hailed as a historic breakthrough in establishing ground rules and cooperative arrangements for government responsibilities on the environment.

The intention to develop the Agreement was announced in the Communique issued by the first Special Premiers' Conference in October 1990.  Section 2 of the Agreement

... delineates for the first time the responsibilities and interests of each of the three spheres of government.  In doing so, it recognises that the States and Territories have responsibility for the majority of environmental issues within their borders.  Nevertheless, it makes provisions for the Commonwealth to become involved in those issues where it has demonstrated responsibilities and interests.

This Section also provides mechanisms and procedures for accommodating the interests of the various levels of government in environmental issues.  The procedures emphasise timely consultation, more streamlining of intergovernmental processes and the need to avoid duplication of decision making.

In particular the Agreement specifies mechanisms for the Commonwealth and a State or Territory to handle issues where both have an involvement.  The Agreement provides for:

• the cooperative setting of outcomes or standards;  and
• accreditation by one government of the decision-making processes of the other.

The accreditation process is aimed at avoiding the arbitrary revisiting of environmental issues by the parties.  (The Oldman River Dam events in Canada shows how judiciaries may have their own views on such agreements -- see Appendix 2 below.)

More focused agreements and understandings had in fact been reached earlier. ⁽¹⁸⁾  Beginning in 1977, environment Ministers in State governments signed agreements with the Commonwealth Minister as regards procedures for environmental impact assessment.  In a press release on 19 March 1978, the then Prime Minister stated the Commonwealth's intention to create a statutory basis for Commonwealth-State cooperation on EIAs.  A recommendation by the House of Representatives Standing Committee on Conservation and Environment in October 1979, that the Federal EIA legislation be amended to formalise recognition of State EIAs, was not followed.  Bureaucracies cooperated across legislative boundaries with various degrees of success.  Intergovernmental conflict in the public domain arose only on a few issues, such as Wesley Vale.

One strength of the new agreement lies in the fact that it is not just one-on-one but involves all governments.  Thus it is relevant to broad issues affecting several States, such as the Murray River issues (which are already covered separately by a Commission).  The IGAE also involves a broad range of environmental issues and not just the environmental impact procedures which relate predominantly to major projects.

In the spirit of consensus, the IGAE sought to involve local authorities, which had not been done in the 1977 agreements.  Australia's third tier of government, local authority, has traditionally been denigrated as being responsible for rates, rubbish and the essential but less spectacular facets of organised Australian society.  In reality, it is of great importance and plays a key role in environmental management.

The Australian Local Government Association is a signatory to the Agreement, because realistically almost 900 Councils could not be.  The IGAE recognises (Section 1.11) that the agreement cannot bind local government bodies.  The inclusion of the third level of government is to acknowledge its responsibilities and interests in environmental matters, and to recognise the partnership established by the Special Premiers' Conference processes.  Similarly, local authorities were involved in the UNCED deliberations.

It is not yet obvious what, if any, changes in the roles of local authorities will result from the environment agreements of 1992.  Because considerations of cost will limit some measures, one can assume that for some time any direct change will be minor.  Under Section 1.12 of the IGAE, the States undertake to consult with and involve local authorities as appropriate.

The IGAE establishes improved consultation arrangements in relation to negotiating and entering into international agreements on the environment.  It also provides for identification of interests:  "With a view to eliminating functional duplication, wherever the interests of a level of Government have been accommodated, the relevant levels of Government will review the need and justification for retaining any comparable processes or institutions." ⁽¹⁹⁾  No provisions are made for resolution of disagreements, except that First Ministers will use their best endeavours. ...

Section 3 of the Agreement proposes a series of 4 broad principles to guide the parties "in the development and implementation of environmental policies and programs".  These principles are:

• the precautionary principle;
• intergenerational equity;
• conservation of biological diversity and ecological integrity;  and
• improved valuation, pricing and incentive mechanisms.

Buried within extremely broad quasi-definitions of those principles are some powerful weapons of policy.  Due to limitations of space, these four principles are not fully discussed here.  However, the precautionary principle is discussed in Sections 3.5.4 and 3.5.5 (below), and some brief comments on the others are made here.

The principle of intergenerational equity is defined in the IGAE:

the present generation should ensure that the health, diversity and productivity of the environment is [sic] maintained or enhanced for the benefit of future generations. ⁽²⁰⁾

The principle of conservation of biological diversity and ecological integrity is "defined" in the IGAE as:

conservation of biological diversity and ecological integrity should be a fundamental consideration. ⁽²¹⁾

Such a profound "principle", it should be noted, "should inform policy making and program implementation". ⁽²²⁾  This is but one of the many examples where the diffuse IGAE document offers unfettered scope for both uncertainty and petty power.

The economic principles include the polluter-pays principle and the inclusion of "environmental factors in the valuation of assets and services."  What these mean in the real world is presumably a detail to be clarified by other than First Ministers.

The polluter-pays principle has received broad agreement since the Stockholm Conference in 1972, but its application by the nine governments requires very clear understanding of its meaning.  Because of the breadth of the topic, this paper simply reproduces what the governments have agreed, and lets the reader evaluate it.  The IGAE, Section 3.5.4, contains the definition:

polluter pays i.e. those who generate pollution and waste should bear the cost of containment, avoidance, or abatement.

The inclusion of "environmental factors" in the "valuation of assets" would seem to represent unlimited opportunities to Treasuries and taxation officers, as well as to environmental agencies.

It is not clear what the governments mean by the term "environmental factors".  Does it mean clean air, and if so, how does one value it in isolation?  Does the value go down if a polluting industry is established upwind?  Clearly, valuation of such assets is a complex matter, quite apart from any ideological issues, market arguments, the matter of public property, Crown ownership and the like, as regards land, or minerals, or water etc.

Who is to say that in a future bureaucratic review of a project, there may not be a requirement to make such an evaluation, because "the Premiers agreed to it and it is now a matter of policy"?  I do not quarrel with the concept but with the uncertainty generated by this formulation of it, and its potential misuse as a consequence.

Schedules to the Agreement spell out cooperative arrangements between the Commonwealth and the States and Territories in nine specific areas:

• Data Collection and Handling;
• Resource Assessment, Land Use Decisions and Approval Processes;
• Environmental Impact Assessment;
• National Environment Protection Measures;
• Climate Change;
• Biological Diversity;
• National Estate;
• World Heritage;  and
• Nature Conservation.

It was in Schedule 4 that the concept of the National Environment Protection Authority (NEPA) was first fleshed out.

The details of national uniformity of Environmental Impact Assessments (EIAs), although mentioned in Schedule 3 of the IGAE, have been developed by another group of government officers under environment Ministers, not First Ministers.  EIAs are the documents whereby governments judge the environmental and community acceptability of major projects.  They are therefore of critical importance to Australian development.

Due to limitations of space the national developments in EIAs are not analysed here. ⁽²³⁾  They represent a lost opportunity to make practical use of the concept of sustainable development.  Here the only comment is that the IGAE sets timetables (Section 2.5.3) for the Commonwealth to express interest and then to comment on information supplied by a State.

If these timetables were followed for a development project, it would imply a twelve-week delay before a proponent would know the environmental guidelines under which he was expected to prepare an EIA.  Such an added delay, caused solely by Commonwealth interest, would be intolerable.  It is such "little" features in the IGAE that suggest it might be slightly out of touch with technical reality, or unclear.

The IGAE must be evaluated in its own right, as a stand-alone document.  But it must also be evaluated in the context of it overhanging the other Agreements of '92.

Without a wish to be alarmist, it must be said that the four principles are only loosely defined in the IGAE (see page 21 above).  There are no references to definitive texts, laws or rulings.  There is great scope for extensive uncertainties.

If one applies the precautionary principle to the National Greenhouse Response Strategy, for example, does it mean that no more fossil-fuel power stations should be built?  Or does it mean that gas-fired power stations are "cautious" enough, but not oil-fired or coal-fired?  The Senate Standing Committee on Industry, Science and Technology suggests a 10-year moratorium on any new power station, but in spite of the title of its report, Rescue the Future, ⁽²⁴⁾ it is not so cautious as to recommend scrapping existing coal-fired stations.  So what does the precautionary principle really mean in the IGAE?

Further, what does it mean, for example, when the IGAE agrees to "improved ... pricing ... mechanisms", ⁽²⁵⁾ but these are not included in the agreed objectives of the nine governments as set out in Section 20 of the NSESD?  "Full life-cycle costs" are not mentioned in the NSESD, surely a fundamental issue.  Do the nine governments intend to impose the concept, and was it simply an oversight or deliberately omitted from the NSESD?  In the event of inconsistency between the IGAE and the NSESD, which is the superior document?

The very idea of the IGAE is obviously politically attractive to some, but what does it really mean?  Why one government of a democratic country like Australia has to make such assurances of environmental morality to another government of the same country might seem strange, but the consensus exists.  Its legal standing may be another issue.  What relevance would it have, for example, in actions on matters like sovereign risk?

The IGAE has firmly interwoven the Commonwealth with virtually every environmental activity of the States and Territories.  It also provides a formal structure of State-Commonwealth consultation on national and international matters.  But the teeth of the agreement rest in Schedule 4, with the yet-to-be-created National Environment Protection Authority (NEPA).

Before the Commonwealth government could assume such a dominant role, it needed an environmental agency of its very own, rather than merely the "Department of the etceteras", the scornful name given to the various portfolio buckets in which Environment had usually been placed by Prime Ministers from McMahon on.

3.2 SPECULATION ABOUT A FEDERAL ENVIRONMENT AGENCY

In the late 1980s there was increasing perception of a need by the Commonwealth government to have an environmental agency at a national level in place before the June 1992 United Nations Conference on Environment and Development (UNCED).  The existing Australian National Parks and Wildlife Service concentrated on conservation issues.  Pollution and the physical environment had been dealt with by the Department of Arts, Sport, Environment and Territories (DASET).  It might have seemed indicative of low priority to have, say, greenhouse spokespersons drawn from a government department that merely lists "environment" in a grab-bag collection including arts and sport.

Accordingly, in July 1991, a Position Paper for Public Comment was released, with the title Proposed Commonwealth Environment Protection Agency (later called CEPA).

From that modest, indeed unimpressive, beginning has come the CEPA, a new arm of Commonwealth administration, without enabling legislation, that will help shape the future development of Australia.

The envelope of interests conjured up by the word "Environment", and the pervasive influence attached to the word "Commonwealth", might give opportunities for extensive future participation nationwide in everyday operations and developments as well as future planning.

A matter not so obvious from the title of the Position Paper, but emerging from it, from discussions with officers and from later events, is that Commonwealth initiatives towards a national (small "n") Environmental Protection Agency involved two stages.  Submissions from the public on the concept of some kind of Australian EPA based on the position paper of July 1991 must not be thought of as being references to the NEPA, whose potential powers under the IGAE were not open to formal public comment.  More specifically, two major papers prepared before the Position Paper expected only one new "federal" EPA. ⁽²⁶⁾  Instead two new and different agencies are proposed, the CEPA and the NEPA.

The Business Council of Australia, for instance, commented in January 1991 that any proposal to establish a new body needed to take account of pre-existing arrangements and "if possible look to significant rationalisation."  There was no thought then of two new "federal" bodies.

The Business Council sought "simplicity and clarity".  And it argued in January 1991 that "the need for a Federal Environmental Protection Agency is yet to be demonstrated". ⁽²⁷⁾  It has to be stated that the subsequent Commonwealth Position Paper failed to be convincing.  The CEPA legislation has not appeared for debate.

Other public reaction includes that of the Metal Trades Industry Association (MTIA).  The MTIA as a non-government body, representing some 7,000 firms in the metal and engineering industries, and accounting for nearly half of Australia's manufactured output, welcomed the proposed establishment of a "National Environment Protection Agency" (as outlined in the Position Paper).  However, it did so only if there could be national standards without imposing an additional layer of bureaucracy on industry.

And so the MTIA set out a series of principles and priorities which it believed essential for a "National Agency."  The MTIA also relied heavily on discounting bureaucracy by a more central role for industry itself.  But now two new agencies are proposed.  It is not clear that the Agreements of '92 meet the MTIA's aims.

On the other hand, neither the CEPA nor the NEPA, as presently planned, meets the high expectations of conservation groups for a national environmental agency.

A report prepared in January 1991, that is, 6 months before the Position Paper, for the Australian Conservation Foundation and Greenpeace Australia Ltd said:

The traditional view that the States have the primary responsibility for environment protection is no longer true, and

The Federal government should establish an effective, "watchdog" EPA which would be of an expert nature;  largely independent of Ministerial control;  have responsibility for establishing national standards, procedures, etc;  pursue a supervisory role in relation to ... the States ..., and

The Federal EPA legislation should also provide for:

(i) its paramountcy over other Federal legislation. ⁽²⁸⁾

Under the IGAE, the environmental controls are more federalised than centralised, or at least that is the impression that the IGAE conveys.  Therein lies one of its shrewdest arguments.  The centralisation comes from the combination of the IGAE with the CEPA, nominally a precursor to the NEPA, but an agency in its own permanent right.

Of course, such desires for Australia to have a body to set national environmental standards were not new.  They pervaded the AEC's deliberations from 1972, and were recommended by bodies such as the House of Representatives Standing Committee in 1979. ⁽²⁹⁾

With the CEPA in existence, a great deal of exploratory work is proceeding in which some of the national functions foreshadowed for the NEPA might actually be initiated by the CEPA, more or less on a consensus rather than an authoritarian basis (see Figure 1 and below).

3.3 THE COMMONWEALTH ENVIRONMENT PROTECTION AGENCY (CEPA)

The first stage of "national" agencies is thus the Commonwealth Environment Protection Agency (CEPA).  Created in 1992 simply as an administrative arm of the Commonwealth government, its purpose is to assist other Commonwealth departments and agencies in environmental and pollution issues, as well as pursuing policy goals such as ecologically sustainable development (ESD).

The CEPA is now operational.  Its initial budget is at least $14 million and it has a staff of 124. ⁽³⁰⁾  Its foundation Executive Director, Dr Ian McPhail, took up his position on 24 February, 1992 and later resigned.  His replacement, David Buckingham, was appointed in November, 1992.

The CEPA has been created in Canberra, as a Commonwealth agency for Commonwealth purposes.  Who can doubt its growth potential?  Is it metamorphosing under Mr Keating, who once claimed that Mr Hawke's "new federalism" could lead to the Federal government losing its environmental powers?  Will the States cede environmental controls, or some of them, in trade-offs by First Ministers dealing with urgent financial issues?  Will the CEPA engage only in issues obviously and indisputably Commonwealth, or might its influence extend by way of the external affairs power, or be facilitated to be nationwide and intertwined with States by the Agreements of '92?  The answers are uncertain.

At present, the CEPA has many priorities -- too many (see Section 4.2).  We recommend in Section 7 that the CEPA focus on achieving measurable outcomes before there is further action on the NEPA.

The second stage has not yet been reached (March 1993).  The Position Paper hinted at, and the InterGovernmental Agreement detailed, a National Environment Protection Authority (not "agency"), NEPA, to be "established by agreed Commonwealth legislation and recognised by agreed complementary State legislation". ⁽³¹⁾

3.4 THE NATIONAL ENVIRONMENT PROTECTION AUTHORITY (NEPA)

Once the CEPA was established, the Commonwealth was better positioned to discuss further a National Environment Protection Authority (NEPA) with a role defined by the InterGovernmental Agreement on the Environment.  The NEPA does not yet exist (March, 1993).

The NEPA would be a statutory Council of Ministers, with a statutory Executive Officer, with powers more akin to the Environmental Protection Authorities of various States, such as Victoria and Western Australia, controlling particularly the physical environment and pollution standards.  The 1991 Position Paper suggested that it would be chaired by the Commonwealth, and decisions would be taken by a simple majority vote.

The present relevant Council of Ministers is the Australian and New Zealand Council of Environment and Conservation, ANZECC, formerly ANZEC and before that -- beginning in 1972 -- the Australian Environment Council (AEC).  Decisions of the ANZECC are by consensual unanimity -- all parties must agree -- and action is optional, but expected if the others all agree, in a kind of good neighbour approach.  The ANZECC is not a statutory body.

By contrast, the new equivalent body, the NEPA, would have teeth.  The Position Paper (June 1991) described it poorly.  One of the three options for the proposed Ministerial Council would be:

a standard-setting body, supported by complementary legislation or a referral of powers by the states to the Commonwealth for the purpose of creating standards. ⁽³²⁾

The IGAE chose this option, and agrees that decisions will be by a two-thirds majority. ⁽³³⁾  The outcomes will be implemented by each government through its own environmental agency, with common penalties.

The NEPA will thus be quite different from the usual Ministerial councils, which are consultative and advisory bodies.  The issue of the States' rights to control their own environments inevitably arises.  This aspect is discussed in more detail in Section 3.7.4 (below), and here only one point is made.

Schedule 4 of the IGAE looks to the NEPA to be able to establish a wide variety of measures which will set standards, guidelines or goals over a comprehensive range of environmental issues such as air quality, marine, estuarine and fresh water quality, noise, hazardous wastes, motor vehicle emissions, recycling and so on.

While the pros and cons of uniform standards may be in dispute, there can be little dispute that environmental priorities should be set by each State or Territory.  The IGAE covers (Section 2.2) matters of foreign policy and national interest.  But in the vast majority of issues, the State must be able to set priorities for its allocation of scarce human and financial resources.  It is difficult to understand how the NEPA can be consistent with this view.

The Special Premiers' Conference in Perth, scheduled for November 21-22 1991 but postponed to meet in Adelaide without the then-Prime Minister, Mr Hawke, might have legitimised a Big Brother NEPA, but the States had difficulties with various components, such as in the chairing by the Commonwealth and a simple majority vote.

While most of such work is currently addressed by the Australian and New Zealand Environment and Conservation Council (ANZECC) there are several critically important differences of which the public may not yet appreciate the full implications.

The ANZECC has grown largely from the Australian Environment Council, established as a basis for consensus consultation in the heady early days of 1971-72.  It absorbed "conservation" Ministers more recently.  At present, the ANZECC operates on the basis that unless there is unanimous support for an action the action will not go forward.

With the NEPA it is proposed that actions will go forward if they achieve a two-thirds majority.  With nine governments one could see that the large resource-based States of Western Australia and Queensland might be disadvantaged by the more urbanised south-eastern bloc.  However, there are also other important issues.

The Commonwealth will chair the NEPA.  This is in contrast to the ANZECC where chairmanship rotates to the particular host government.  The Commonwealth chairs various Ministerial Councils and normally this would not be of great moment.  But with the NEPA, where there will be a statutory Executive Officer, it may be more important.

Furthermore, the NEPA will have its enabling legislation and complementary legislation in each individual government jurisdiction.  The ANZECC has no enabling legislation of its own but consists of member ministers each with individual legislation under his or her own portfolio.  It has been argued that the proposed NEPA arrangements will give more effective and efficient environmental legislation and control across the wide diversity of the Australian environment.

The IGAE proposes that the actual regulation under the NEPA will still take place as at present under the specific and individual government legislation, that is, of each State and Territory.  The States, however, already encounter great technical and logistical difficulties in coping with the wide variety of physical environments encountered in their jurisdictions.  It is by no means self-evident that combining the problems into some standard-setting NEPA overview will necessarily improve the effectiveness of environmental protection unless there is an accompanying enormous injection of professional skills and financial support.

The IGAE is, of course, aware of such concerns.  It states that:

in determining whether to adopt standards, guidelines or goals, the Authority will consider ... the most effective means ... [and] also take into account existing intergovernmental mechanisms ... ⁽³⁴⁾

The IGAE defines these terms as follows:

• A guideline provides guidance on possible means of meeting desired environmental outcomes.  Guidelines are not mandatory.
• A goal is a desired environmental outcome adopted to guide the formulation of strategies for the management of human activities which may affect the environment.
• Standards are quantifiable characteristics of the environment against which environmental quality is assessed.  Standards are mandatory. ⁽³⁵⁾

The IGAE recognises the complexity of setting uniform national standards (or guidelines or goals), which is presently the major function expected of the NEPA.  The IGAE proposes that draft standards be open for public appraisal, and be informed by analyses of the social and economic impacts of the standards.  The impact statements should also include analyses of the environmental objectives and reasons for the measures, and the environmental impact of not adopting the measures. ⁽³⁶⁾  There is also to be assessment of how "regional environmental differences have been addressed."

No explanation is given as to how such measures will improve either of the two components of sustainable development, that is, environment and development.  It is, indeed, not obvious who, apart from conservation groups, is urging that these national moves, and the NEPA, should come to pass.

The foundation Executive Director of the CEPA, Dr Ian McPhail, has made the following comment:

While there is biogeographic and political variation across Australia, we have to recognise that we are a small population and that a "single market-cooperative approach" to environmental management and protection is needed in the same way as it has been recognised across a whole range of financial and legal matters.  As a maturing federation, advantageous harmonisation of approaches is increasingly making sense. ...  The establishment of CEPA does not signal an added layer of bureaucracy -- the only addition will be value. ⁽³⁷⁾

One could be cynical and merely comment in the well-known words "Well, he would say that, wouldn't he?"  But his comments relate to the CEPA, not the NEPA.

The fact remains that it is impossible to predict reliably whether similar hopes for the NEPA will eventuate.  Certainly actions and consultations by Dr McPhail and the new Executive Director, David Buckingham, lend substantial credibility to such hopes for the CEPA, but again the CEPA is a very different creature from the proposed NEPA.

I am unaware of a position paper which demonstrates or examines the need for the NEPA.  The NEPA is apparently such a politically-appealing notion, provided one doesn't worry about its purpose, functions and powers, that it has developed a momentum of its own.  Which government will be brave enough to question it?  But it must be questioned (see also Section 7 below).

One can view the NEPA with a profound scepticism which has nothing to do with either personalities or this particular issue.  Scepticism comes from a physicist's awareness of the overwhelming dominance in governments of the Second Law of Thermodynamics, and an awareness of what vast powers are still hidden when first you see the spouting plume of a whale.

At present, the scope of the NEPA is planned to be emphatically the physical environment, not conservation and (explicitly) not the cultural environment.  So it is already confused and inadequate.

A caution is necessary that too little attention is paid by industry to the bureaucratic and sometimes Ministerial compartmentalisation of "conservation" versus "environmental protection".  The first deals with the biological or living environment, while the second deals with the physical environment, including pollution.

Endangered species, biodiversity and national parks are usually dealt with in the category of "conservation".  At the Commonwealth level, the responsible bureaucracy is the Australian National Parks and Wildlife Service, established by the National Parks and Wildlife Act 1975 on 13 March 1975.

Matters of air and water pollution, noise, waste recycling, and standards of air and water quality are dealt with in the category of "environmental protection".  At the Commonwealth level, the responsible bureaucratic body is now the non-statutory CEPA.

The proposed new NEPA would, like the CEPA, deal predominantly with environmental protection, under the InterGovernmental Agreement.  Yet ecologically sustainable development and environmental impact assessments, two dominant influences in government-approval processes, have to deal with the real world where there is no such artificial compartmentalisation.

Rationalisation of the CEPA (non-statutory) and ANP&WS (statutory) is being avoided at the Commonwealth level and thence directly in the national level of the NEPA, even though most State agencies have long since reached some form of accord in allocation of environmental and conservation responsibilities and have statutory bodies covering either or both areas.  The ANZECC treats both the physical environment and the biological environment in separate sessions, with two separate Standing Committees, one for Environmental Protection and one for Conservation.

The IGAE does not define "environment".

3.5 THE NATIONAL STRATEGY FOR ECOLOGICALLY SUSTAINABLE DEVELOPMENT (NSESD)

3.5.1 Evolution of the NSESD

In a world of placid goodwill, unpeopled by lawyers, unexcited by the media, untroubled by politicians, and unadvised by consultants, it could be possible for future economic developments in Australia to proceed along clear and well-defined paths untroubled by environmental approval processes.  Indeed, in such a world much of the well-meaning idealism of the many Agreements of '92 might even be desirable, provided one was not too concerned about the scientific rigour of their foundations or their relevance to Australia.

In the real world, long-term strategies for coping with government requirements for the environment, including the newly reborn health aspects, were extremely complex even before 1992.

The new structural arrangements combining the Agreements of '92 will be in place for the new Federal government in 1993.  The NEPA will not exist, but agreement to create it is in place.  The task of economic recovery of the nation, the overwhelmingly crucial accomplishment for this generation, will have to cope with or drastically alter the environmental responsibilities and the new administrative instruments that the Agreements of '92 have imposed.

Instead of governments saying that the EIA process has played its part and should now be completely revised for the 1990s, all governments agree (in the IGAE) that the whole process should be broadened, to include economic, social, cultural and health fields, as well as the environment.  Whether the bureaucratic environmental assessors are competent to make judgement in such an expansion of disciplines is unknown.

The possible gains in efficiency of processing of EIAs, which may or may not be achieved, will be offset by the obscure principles of the IGAE and the much broader scope of EIAs.  EIAs may be required not simply for projects but for policies and programmes.  It will be all too easy to frustrate developments without technical reasons but on the basis that they are contrary to some ill-defined principles or tenet of faith on ESD or biodiversity or climate change.  And there are many such tenets, often so loosely phrased as to be capable of wide interpretation, thereby causing greater uncertainty (see Section 3.1 above).  No defence is possible against the precautionary principle, as is shown by the greenhouse example (see Section 3.6 below).

But looming over even the expansion of uncertainty by the IGAE are immense government interventions via the processes of the National Strategy for Ecologically Sustainable Development (NSESD).  This was endorsed by First Ministers on 7 December 1992, after a long period of "community consultation", dating back indeed to the National Conservation Strategy of 1983.

The NSESD evolved from desires to have Australia respond to the calls for action in the report Our Common Future, developed by the World Commission on Environment and Development, chaired by Gro Harlem Brundtland, Prime Minister of Norway.

For some reason, presumably of ideology, Australia chose to put the word "ecologically" in front of the term "sustainable development" used by Brundtland.  Some conservation groups, concerned about their claims of the "finiteness" of resources, argue that sustainable development is impossible in the long term.  If that was the reason Australia used the term Ecologically Sustainable Development, then there is a fundamental issue at stake.  Thus the Australian deliberations were about ESD, but a fundamental issue, the implication that Australia's resources are finite and limited, was not pursued.

In August 1990 the Prime Minister announced his intention to establish nine sectoral ESD Working Groups, involving "government officials, industry, environment, union, welfare and consumer groups."  "Community consultation" was extensive.  Interim reports of the Working Groups were made available.

In November 1991, the nine ESD Working Groups produced reports covering agriculture, forest use, fisheries, manufacturing, mining, energy use, energy production, tourism and transport.  In January 1992, the three Chairs of the Working Groups presented further reports on intersectoral issues and greenhouse.  In all, these 11 reports contained over 500 recommendations of ways of working toward ESD.

An intergovernmental steering committee coordinated assessments of the reports and recommendations.  A draft strategy was released on 30 June 1992 for public comment.  Over 200 submissions were received, and the committee responded with the NSESD, a 128-page document.  The fate of the 500 recommendations is detailed in the companion Compendium. ⁽³⁸⁾

3.5.2 Contents of the NSESD

The NSESD assures us that

governments will be making changes to their institutional arrangements to ensure that ESD principles and objectives are taken into consideration in relevant policy making processes. ⁽³⁹⁾

As discussed below, the nine governments committed themselves to make 384 such changes!

It is symptomatic of the Australian ESD ethos that the National Strategy for Ecologically Sustainable Development was endorsed by First Ministers of the nine Australian governments on 7 December 1992, without agreement on what was meant by the term Ecologically Sustainable Development, but with consensus that "there is no universally accepted definition of ESD". ⁽⁴⁰⁾

The First Ministers were too modest, because ESD appears to be an Australian invention for which they should be accountable.  The rest of the planet discusses, simply, sustainable development.

The Commonwealth kindly volunteered one definition, presented in the manuscript draft of the NSESD in free verse form as follows:

using, conserving and enhancing the community's resources so that ecological processes, on which life depends, are maintained, and the total quality of life, now and in the future can be increased. ⁽⁴¹⁾

The definition, read aloud, sounds like a prayer.  Indeed, ESD has become for some a religious belief.  Alas, the Strategy is no Summa.

For convenience of the reader, the NSESD also provides another definition:

Put more simply, ESD is development which aims to meet the needs of Australians today, while conserving our ecosystems for the benefit of future generations. ⁽⁴²⁾

The absence of an agreed definition of ESD is not a trivial issue of semantics.  The IGAE states ⁽⁴³⁾ that governments will ensure that environmental acceptability of a development will be judged inter alia on the impact being consistent with ecologically sustainable development.  Thus looming over all future development approvals is a concept on which governments cannot agree what it means.

It should come as no surprise that the National Strategy on ESD does not have the most elementary keystone -- an agreed definition of ESD.  After all, the National Greenhouse Response Strategy does not contain the most elementary greenhouse prediction, as to how much hotter greenhouse will make Australia (see Section 3.6 below).  And nowhere is there a discussion of how much the National Greenhouse Response Strategy will decrease the heating of Australia, which is presumably its purpose.  It is the process that is important in the Agreements of '92, not the outcome.

The sheer bulk of issues deemed relevant to ESD is immense.  Part Two of the National Strategy for ESD (1992) covers 8 sectoral issues. ⁽⁴⁴⁾  Part 3 covers another 22 "intersectoral issues". ⁽⁴⁵⁾

Each of the 8 sectors and 22 intersectoral issues has a number of broad Objectives, most devoted to process rather than outcome.  For example, taking the first sector, Agriculture, there are 5 Objectives.  The very first tells it all:

Objective 1.1

to create a framework of integrated government policies and programs which promote [sic] community-based self-reliant approaches to agricultural resource management.

In that one Objective, the NSESD has no fewer than 3 (or perhaps 4 or 5) processes:

• create a framework;
• promote;
• approaches to;  and
• management.

Not discussed here is the fact that the NSESD also contains a set of commitments by the nine governments to "monitor and review the implementation and effectiveness of actions contained in this strategy". ⁽⁴⁶⁾  Clearly at least the processes of ESD will be sustainably developed.

While each sector has only a few Objectives, mostly 3 or 4, these numbers are deceptive.  Each Objective may lead to the nine governments' making up to a dozen or so commitments.  Many noble aims are documented, again largely government processes rather than outcomes.  The results are shown in Figure 2 (below), for the 8 sectors (Agriculture, Tourism etc).

In the 8 sectors, governments declare 29 Objectives and undertake to do 149 things.  For example, to provide opportunities to limit the use of fossil fuels:

Governments will develop and implement travel demand strategies and management techniques (for example central business district parking taxes, flexible working hours, and work from home schemes) to curb the growth in the use of private motor vehicles in urban areas. ⁽⁴⁷⁾

At one swoop, to reduce greenhouse (?), we are committed to wide-ranging notions of flexible working hours and work from home schemes, together with a dislike of private motor vehicles in urban areas.  The social engineering has an endorsed target:  "curb the growth..."  Does an urban dweller have to catch a bus to reach his private motor car, or is he to be condemned to be carless if he is urban?  The National Strategy, incorporating such ideas, has been endorsed by our Premiers and Prime Minister!  And this is just one example.  Each of the pointing fingers of Figure 2 is a commitment of complexity more or less as broad as this.  Including the 8 sectors and 22 intersectoral issues, the National Strategy for ESD has 70 Objectives and 384 commitments by the nine governments.

In Postponing Greenhouse, ⁽⁴⁸⁾ the concept of an Inverted Pyramid was developed.  An Inverted Pyramid is a growing mass of policies and government actions based on an apex of very few facts.  The sheer size of an Inverted Pyramid is somehow interpreted by the community as giving it profundity and validity.

The processes of ESD in Australia have managed to make even the Inverted Pyramid of Greenhouse a mere trifle.  ESD, and the National Strategy, are a veritable Giza of Inverted Pyramids, based on a single concept, ESD, without an agreed definition.

Such far-ranging social engineering processes would clearly require enormous time, cost and effort to implement even if the community accepted them.  And many of the 384 government commitments are themselves breeding multiplicities of more processes, as in the example above.  It is as if the inverted pyramids are reproducing baby inverted pyramids, like fractal images.

Great dissatisfaction had been expressed, principally by environmental groups, that little government action seemed to be resulting from the 500 or so recommendations of the ESD committees.  So part of the published output from the first COAG meeting on 7 December was a Compendium (1992). ⁽⁴⁹⁾  Its purpose is to serve as a record of how the Strategies relate to each of the ESD Working Group recommendations.

The Compendium is in itself a sad document.  Like bits of bread to quacking ducks, it relates government acceptance or other response to the 500 recommendations.  An occasional crust of reality can be found as one or another government can quote an action, but most of it is mush.

As a characteristic example, consider the response to the obviously dedicated Recommendation 3.3a of the Intersectoral Issues that the round-table process, recommended earlier as a "means of maintaining the momentum on the ESD process," be chaired by the Prime Minister.  The put down response was "The Prime Minister will consider his role with regard to the round-table meetings against other priorities at the time".

3.5.3 Examples of the NSESD Commitments

The proliferation of government commitments, many of them open-ended and imprecise, might be ignored as simply political flag waving.  But such a move would be unsafe.  Processes are also in place via the new United Nations Sustainable Development Commission (UNSDC) for countries to report on their follow-up to Agenda 21 and the Rio Declaration.

The Rio Declaration on Environment and Development consists of 27 broad principles, succinctly expressed.  Agenda 21 is a vast (over 600 pages) action document, ten times larger than the comparable output from the 1972 Stockholm Conference.  Agenda 21 is not a legally binding text nor does it have to be ratified.  It is said to have moral if not legal force.  Australia endorsed it at Rio.  I do not begin to understand how it will now be used to "underpin" the IGAE, the NSESD and the NGRS.

The UNCED secretariat papers spoke of the need for $125 billion annually in transferred funds to implement Agenda 21 ⁽⁵⁰⁾ so the UNSDC will presumably be both large and busy.  Similar reporting on actions is an integral part of the Climate Convention.  Any problems for Australia arising from the 1992 agreements cannot be easily deferred or ignored.  They must be reported, openly.  Reporting is also an integral component of the IGAE, as is auditing in greenhouse, for example.  The responsibilities may flow on to industry, a domino effect begun and justified at Rio.

It is probably unfair -- if that word has meaning any more -- to pick out a particular government undertaking in the National Strategy for ESD.  Because few, however, may read all of the commitments made on our behalf by the nine First Ministers, four typical examples are given.

1. From Sector 1, Agriculture, one of the six commitments to meet Objective 1.1 (discussed above) is:

   Governments will establish terms and conditions for leasehold land which encourage sustainable management. ⁽⁵¹⁾

   What does this mean?  Will all governments do this for new leases, or will they do this when leases come up for renewal?  Or will they seek to apply it to existing leases?  And in technical detail what does it mean for the leaseholder?  Is "sustainable" to be evaluated over 5 years or a generation?  Does it apply through El Niño droughts and La Niña floods?

   Are those the words of national vision the struggling rural leaseholder can show to his bank manager when he tries to renew a loan?  Or are they further uncertainties to plague him?

2. Agriculture is not the only major industry where the NSESD introduces uncertainties.  Consider that other mainstay of Australia's wealth, the mining industry.

   From Sector 5, Mining, Objective 5.2 is "To provide appropriate community returns from mineral resource developments."  To meet this Objective, the nine governments made three commitments, of which the first is that governments will:

   continue work to replace progressively pseudo royalties with more transparent, efficient and direct mechanisms.

   Although the resolution of the issue appears to be with the Ministers for Mines, its inclusion under the guise of ESD, must increase uncertainty about "pseudo royalties."

   There is no economic caveat or discussion about international competitiveness.  One might have hoped that in mining, of all issues, more care would have been taken as to whether the prefix "ecologically" to the term "sustainable development" was even relevant.

3. From Intersector 27, Employment and Adjustment, one of the 5 commitments to meet the Objective 27.1 "to assess and monitor the equity implications of proposed ESD actions" is:

   give further consideration to the adequacy of adjustment measures to meet identified needs.

   Who could quarrel with that, but what does it mean?  Who will do whatever it is?  Who will know it has been done?  What impact will there be if it is not done?

4. From Intersector 17, Coast Zone Management, to meet Objective 17.1, governments will:

   examine the scope for utilising the institutional framework and handling mechanisms outlined in the IGAE as a possible mechanism for inter-jurisdictional management of the coastal zone.

   Whether such words will bring comfort to potential investors in off-shore exploration or high-rise coastal apartments is clearly beyond the scope of this paper.  But all governments have made this commitment linked to the IGAE.  Does it inspire certainty?  Will it happen?  When will the outcome be known?  What will it cost?  What does it mean?  Will the Resources Assessment Commission inquiry into the coastal zone take this as a given?

   I hesitate to mention it, but the term "coastal zone" is not defined in the NSESD, and the Intersectoral Issues Report could not agree on a definition, saying "in practice the coastal environment of Australia lacks a unified definition". ⁽⁵²⁾  It may include both land and sea, but how far inland and how far out to sea?

3.5.4 The Precautionary Principle

The principles supported under the Agreements of '92 are already being applied to the real world.  In some issues this is by specific legislation, but in other cases it is by their influence on attitudes and decision-making.  For example, the Resource Assessment Commission combined the two concepts of the precautionary principle and intergenerational equity in its Forest and Timber Inquiry in 1991.  It found that halting wood production activities in native forests was not justified on the evidence before it, but it recommended monitoring and independent audits.  It strongly emphasised uncertainties and found the precautionary principle must form the basis for future actions.  The principle has been cited in a real-world approval process by the Western Australian EPA.

Thus in Australia a development ethos has been replaced with a nationalised environment ethos, endorsed by all nine governments, although their mandate may have been dubious.  As discussed below, the concept of Sustainable Development, which could have offered balance, has been subverted.  The concept of acceptable risk is being replaced with the precautionary principle.  The IGAE adopted this precautionary principle:

Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. ⁽⁵³⁾

That seems a sound forward strategy and the IGAE then goes on to clarify it, by stating:

In the application of the precautionary principle, public and private decisions should be guided by:

1. careful evaluation to avoid wherever practicable, serious or irreversible damage to the environment;  and
2. an assessment of the risk-weighted consequences of various options. ⁽⁵⁴⁾

One can scarcely quarrel with such principles, but in practice the caution they express can be replaced with fright.  It is the bureaucratic application of the precautionary principle that poses problems.

The precautionary principle advocates prevention of pollution rather than belated control.  The principle has an ineffable attraction, particularly for mature industrial areas.  It seems basically a defensive move, but it is more -- it is a denial that future environmental management can develop the skills or improve methods to solve a problem.  It requires those skills to be proven up front.

The nuances of the precautionary principle may be appreciated by comparing the IGAE definition with the equivalent expression in the UN Convention on Biological Diversity:

where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimise such a threat.

Interestingly, the precautionary principle per se was not included in the nine principles of the draft National Strategy for the Conservation of Australia's Biological Diversity.

In the real world of politics, the precautionary principle may be applied as requiring that no action be taken, because the action has a finite (greater than zero) risk.  The political preference may be to choose what seems to be a zero-risk option, although in fact, often no action itself may have a finite risk.  For example, one may choose not to have a tourism development near a scenic area for fear of overuse or private "exploitation".  The resultant random use may cause more damage than controlled or managed use would.  Or one may choose not to control-burn forest undergrowth every 5 or 7 years, for fear of harming native fauna.  Yet lightning may start bushfires which are that much hotter and more devastating because of the stockpile of accumulated fuel.

Acceptable risk (action with awareness and acceptance of resulting risk), and the precautionary principle (no action because unidentified risks may exist), must not be confused with complacency, which is no action resulting from the acceptance, frequently unthinking, of the status quo.

The precautionary principle places the onus of proof on the developer or the advocate to prove that a dreaded event will not happen.  DASET applied it in its greenhouse policy, requiring sceptics to prove that this or that "prediction" will not eventuate, an impossible task.  Wildavsky calls such models of risk aversion "trial without error" to contrast them with the common term "trial and error", and points out that without error there is no learning. ⁽⁵⁵⁾

3.5.5 Relevance of the Precautionary Principle to Australia

Australia is a young, resource-rich developing country.  The Agreements of '92 set the scene for the precautionary principle to be increasingly applied as if Australia was already a fully-developed, economically-mature nation.  The precautionary principle is aimed at preventing things happening, instead of having to control their effects.  It has been endorsed at various European Commissions, and is another politically sexy concept imported from Europe without examining its relevance to Australia.

Australia must adopt a strategy of acceptable risk and redefine for itself the notion of the precautionary principle.  Australia's youth, environmental diversity, environmental resilience, its rich potential and its uniqueness make it essential that some risks have to be taken if growth is to be forceful in the pursuit of sustainable development.

Studies of risk analysis by Wildavsky, Viscusi and others point out some of the difficulties with risk perceptions and reality. ⁽⁵⁶⁾  Their studies treat only a fraction of the matter of risk as it applies to Australia.

There is the aspect of risk and hazard analysis as applied to an industrial complex, for example.  One can calculate the risk of this pipe or that vessel or that valve rupturing, the probability of so much gas or chemical being released, the probability of winds, temperature conditions, local topography and other factors producing such and such a ground level concentration (glc) at a given location.

Then one combines that glc risk with the mortality or other risks studied by Viscusi and others.  As they correctly point out, methodologies are often flawed in such mortality risks.  Safety margins may be imposed on top of extrapolations from very high concentration data to very low levels.  Judgements are then made which can never be scientifically certain.  Such are risk considerations world-wide.

But there is yet a further factor, when one is dealing, not with human health, but with the natural environment.  It is what is called here "the Australian factor" (although several aspects are not confined to Australia).  It is often ignored, as by the IGAE.

By the Australian factor is meant many components.  It means, first and foremost, a willingness to take a considered risk.  It means a recognition that no action does not necessarily mean zero risk, but may in the totality mean higher risk (see examples above).  It means an Australian confidence in one's ability to control the consequences of human actions.  "The Australian factor" has two different aspects, the first the Australian environmental factor and the second the Australian skill factor.

Consider the Australian environmental factor.  The Australian environments are heavily stressed by natural forces.  Many of those natural forces routinely cause, and have caused, and will cause, vast changes to the environment.  In many, but by no means all, such changes are so large, and sudden, as to make man's efforts seem puny by comparison.

Yet the Australian environment survives.  It is resilient and adaptable to stresses by flood and drought, and to severe temperature stresses.  And it is a vast land, of enormous diversity.  In the north it has two seasons a year, the Wet and the Dry, and in the south you can choose between the lotus-land Mediterranean climate of Perth, the youthful unpredictability and variety of Sydney or the Manchester grey dank gloominess of Melbourne.  Change is part of the essence of our environment.  Change made and makes it what it is.

Australia has undergone vast changes in the physical environment due to long-term climate changes over the past 40,000 years of human settlement.  Some 17,000 years ago, Aboriginals hunting in the valley between what we now call North Head and South Head of Sydney Harbour would have had to travel a day or two east to reach the ocean.  The vast natural wonder of the world we call the Great Barrier Reef only began to grow some 5,000 years ago, being previously largely dry land.  On a shorter time scale of some 3 to 9 years, the vast pulsations of El Niño and La Niña cause the droughts and flooding rains of this sunburnt country.

These words are not intended to minimise the power of man's impact on the Australian environment.  In the millennia after Aboriginals first lived in Australia, "the environment was to a remarkable degree modified by its prehistoric inhabitants". ⁽⁵⁷⁾

Fire-stick farming was used by Aboriginals over millennia for many purposes, changing forests to open parklands and woodlands.  By mosaic burning, arid areas were managed to increase their productivity.  Not just landscapes changed, but the flora communities themselves.  After European settlement, vast land clearing for wheat and extensive pastoral practices produced other major changes.  Irrigation produced others again.

Before and after European settlement there were losses of mammal species because of human activities.  Some 35 species of mega-fauna (weighing 40kg or more) were extinguished after Aboriginal settlement, ⁽⁵⁸⁾ and a further 20 mammal species became extinct after European settlement. ⁽⁵⁹⁾

Similarly, the introduction of the dingo by Aboriginals some 4,000 years ago, ⁽⁶⁰⁾ and the fox and rabbit by Europeans in the past 200 years have had major impacts.  The dingo is regarded as responsible for the loss of the thylacine and Tasmanian devil from the mainland, ⁽⁶¹⁾ while fox control and other measures have recently resulted in extensive boosts to populations of small native mammals. ⁽⁶²⁾

On a quite separate tack, one might also suggest that Australians have a growing international reputation of being able to control environmental effects.  Their pollution control skills and methodologies are being exported.  The very fact that those skills and methodologies are dynamically improving, funded by wealth from the problems themselves, is in itself a curious rebuttal of the precautionary principle.  Such a negative approach would prevent revitalisation of EIAs.  The principle assumes a static society.

So, in considering environmental strategies, Australia will stultify and cannot achieve ESD if it imports concepts of the precautionary principle from older, developed countries.  Nor should one assume that because some environmental errors were made in the past, we should as a nation be forever cocooned against the very idea of making further mistakes.  Yet there is fundamental wisdom in a form of the precautionary principle.  Accordingly, a recommendation is developed in Section 7 to adapt a new precautionary principle that is applicable to Australia.

3.5.6 Conclusions about the NSESD

Each of the 384 commitments which has been agreed will require action by some bodies within governments.  The Strategy recognises that "each jurisdiction will determine its own priorities for implementation of actions following assessment of the budgetary priority they should command, both between individual ESD-related actions and against other competing demands for public funding". ⁽⁶³⁾  So nobody knows which of the commitments will be implemented or which governments will do what.  Uncertainty is increased, not decreased, although the governments are committed to monitoring and review.

There are many sensible, if often platitudinous, statements and commitments in the NSESD.  After all, they evolved from the long discussions of conservation strategies in the 1980s, and from long deliberations by many interested and intelligent people in the ESD process.  But they are all about government processes, and governments do not create wealth -- and wealth is needed to devise and implement strategies that will lead to sustainable development.

Few of the 384 commitments are aimed at creating economic wealth or development.  Few have a tangible outcome.  The major impact on employment will be to create more bureaucratic positions, and either divert industry from productivity or force the hiring of more lobbyists or consultants.

The operative verbs of the Strategy are:

require, promote, continue, study, establish, encourage, examine, enhance, ensure, review, investigate, undertake.

There are few action verbs such as:

make, build, do.

The strategy is not a strategy for action, but a recital of government processes.  There is no optimism in the Strategy, no life and no vision.  It is a defensive strategy, bred of a fortress mentality which is that of the precautionary principle and zero risk.  It is not a strategy for Australia.  And it is not a strategy for responsibly developing our rich resources as Our Common Future demands.

Quite simply, the National Strategy for Ecologically Sustainable Development deals with ecological (and other) issues, but it is not sustainable and it will not promote development.  The Strategy itself admits this, but in less blunt terms.  It is a strategy to have Australia gradually and sluggishly come to a halt.

The question is, what can we do to rectify the failings of the NSESD and the possible compounded consequences if the IGAE is applied to it?  There are three options:

• withdraw the Strategy;
• rewrite it;  or
• balance it.

Politically, the NSESD cannot be withdrawn.  Nor indeed should it be, since in many ways it is a useful record of the updating of the National Conservation Strategy of the 1980s.  There is potentially much of value in it.

Practically it cannot be rewritten.  Such time-consuming processes as the NSESD cannot occur less than 5 and probably 10 years apart, first to let their messages be absorbed, second because people are "talked out", and third because participants have to revert to the real world.  Tinkering by editing or partially rewriting is also impracticable:  the document is said to be a document of consensus, and also it is the total ethos of the Strategy that it is unbalanced, particularly when overburdened by the IGAE.

So the only remaining option is to produce a new intergovernmental agreement to restore the balance, by emphasising the development component of sustainable development.

It could be written quickly, because the knowledge is available, from the many earnest efforts of the many ESD participants.  The knowledge is ready for use.

Accordingly, as outlined in Section 7 (below), I recommend that a new intergovernmental agreement have a national vision of economically sustainable development, to provide a counterbalance to the existing ecologically sustainable development strategy.

The new strategy must be relevant to Australia, and recognise our enormous natural resources, environmental diversity and resilience.  It must recall and renew our national heritage of considered and finite risk, such as pioneering agricultural settlement and mineral developments.  It must also use Australia's special potential advantages and disadvantages in international competitiveness.

This agreement should not try to be a complete examination of all things economic, but should focus on the theme of economically sustainable development in the context of the NSESD.

3.6 THE NATIONAL GREENHOUSE RESPONSE STRATEGY (NGRS)

On 7 December 1992, the First Ministers also endorsed the National Greenhouse Response Strategy (NGRS).

The Strategy was broadly agreed in Schedule 5 of the IGAE.  It is based on the Federal Cabinet's decision of October 1990 to reduce greenhouse gas emissions.  An interim planning target is to stabilise emissions at 1988 levels by the year 2000, and to reduce them by 20 per cent by 2005, "the Toronto target".  An economic caveat is that Australia will not implement response strategies which would have net adverse economic impacts nationally or on Australia's trade competitiveness, unless other major greenhouse-gas-producing countries reduce their greenhouse emissions likewise.

This caveat is often ignored.  Some studies have been made to achieve reductions in greenhouse emissions via policies of energy efficiency, demand reduction and alternative fuels or energy sources, but costs are quite uncertain. ⁽⁶⁴⁾

However, the general thrust of the Australian greenhouse strategy appears to have settled down into the so-called "no regrets policy", where stratagems have to be justifiable for reasons other than greenhouse.

The Business Council of Australia made a practical contribution to the greenhouse debate when it published opposing views of the CSIRO. ⁽⁶⁵⁾  The CSIRO then vigorously denied their claim that "greenhouse has been postponed".  That denial cannot be made any longer.  The CSIRO has recently issued (November 1992) a new climate scenario which drastically reduces the previous estimate of the impact of greenhouse on Australia. ⁽⁶⁶⁾

In 1987, the CSIRO issued its greenhouse climate scenario for the impacts that greenhouse would have on the Australian climate by the year 2030.  It predicted that the temperature of inland Australia would rise by 2°-4°C.

Thereafter this became the greenhouse gospel for Australian governments for over 5 years.  A sad litany of government policy and information documents promoted it.  In two 1992 publications -- which made a farce of public education being based on reliable and up-to-date information -- the Australian Bureau of Statistics and the National Greenhouse Advisory Committee repeated the estimates. ⁽⁶⁷⁾

In November 1992, the CSIRO's new forecast was that greenhouse might cause the inland temperature to rise by only 0.5°-2.5°C by 2030, replacing the previous figures of 2°-4°C.

The numerical change in the estimates may seem small in terms of numbers or actual temperatures.  The lower limit has been changed from 2° to 0.5°, while the upper limit has been changed from 4° to 2.5°.  But greenhouse is a slow, gradual change, and what these numbers mean is simply that the predictions of the impact by 2030 are now much reduced.  Indeed they are only about a quarter to a half of what was feared when government policies were formed.  Alternatively, one might say that the impacts formerly predicted for 2030 have been postponed to the end of the next century.

Those who are naive in the ways of environmental politics might have thought that the National Greenhouse Response Strategy would have contained estimates of its raison d'être, the greenhouse impact on Australia.  They might have thought that one would find, somewhere in the 107 pages of the national strategy, a statement as to just how much hotter Australia would be next century because of greenhouse.  Perhaps one might even have hoped for a statement as to how much less hot it could be because Australia adopted the Strategy.  After all, is that not the purpose of the strategy, to reduce the greenhouse heating of Australia?

In fact, there is no statement as to how much hotter greenhouse will make Australia, with or without its Strategy.

There is no publication at all which describes how much less heating there will be because of the Australian National Greenhouse Response Strategy, either with the old or the new CSIRO scenario.  I volunteer here an estimate that if this Australian Strategy meets its goal, it would at best result in reducing global heating by a very small proportion (say, less than 0.2 per cent).  In any event, current international forecasts of detectable small global heating (say maybe 0.3°C), accept that it would be undetectable until sometime around the two target years of 2000 and 2005, or later.

I have suggested elsewhere and here in Section 2.2 (above) how Australia can make far more significant contributions to reducing global greenhouse emissions at much less cost, and indeed, with great economic benefit.

The Australian Strategy, however, does have some intrinsic merit which has nothing to do with greenhouse, but comes from its being a "no regrets" policy.  For industry, it may provide useful incentives in varied fields -- architecture, urban planning, alternative energy sources and high-efficiency devices.  There are significant cost savings that can be made in such areas, and if some added comfort is gained from the notion that greenhouse emissions are being reduced, the illusion may be harmless.

The Strategy will not be harmless if it increases unjustified government requirements for environmental audits, pollution control and possible regulation of processes.  It may also lead to government subsidies and incentives to communities or industry, in the name of greenhouse, that impose a net cost.  Environmentally-friendly windmills may be placed on scenically attractive cliffs to deliver expensive electricity, buffered by diesel generators called upon to do their noisy work on quiet, windless days and nights.

Whatever the effect of the strategy, Australia, under present plans, will, within the year, be reporting greenhouse audits and strategic actions to international forums.  The Agreements of '92 say this must be so, driven by the Rio Convention.

It is useful but sad to note that the greenhouse actions of the Commonwealth government and its agencies have given a practical test of the scientific integrity of applications of the precautionary principle in Australia.

All the policies and strategies remain unchanged even though the latest scientific information is that the greenhouse impact is now predicted to be much less.  One must ask how much less the impact would have to be before the policies are reviewed.

3.7 INTERNATIONAL CONVENTIONS

3.7.1 Background

The first UN Conference on the Human Environment was held in Stockholm in June 1972.  Australia fielded 15 delegates, including the Federal Minister, the NSW and Victorian Ministers, a few Commonwealth officers and the CEO of most State environment agencies.

Twenty years later, in June 1992, the UN Conference on Environment and Development, UNCED, was held in Rio.  An Australian party some three times larger attended.  The Federal Minister, Ros Kelly, signed on behalf of Australia the Framework Convention on Climate Change and another on Biological Diversity, as well as the far-ranging Agenda 21 and the Rio Declaration.

It is not always fully appreciated just how these Rio conventions can influence Australia's future planning of its own environment.  Few topics could have delivered to the Commonwealth such far-reaching potential to exercise its external affairs power as does environment.  And the new UN agreements and conventions are not narrow or focused ones, as was often the case previously.  They possess vast scope.  Agenda 21 is a massive document, over 600 pages, or ten times larger than the Stockholm outcome.

The comments in this article do not explore the legal position, or purport to offer legal opinion.  The issues are complex. ⁽⁶⁸⁾  The point must be made, so pervasive and so political is "the environment", that community perception (often based on hearsay and out-of-date predictions) rather than black letter law may be dominant in the first place.  Legislators and judiciary alike may jostle for the last word, but that may well be only to authenticate what the community had decided previously.

Because international economic investment also has a very keen sensitivity to political reality, decisions about Australia's future development may be made on perceptions rather than legal judgments alone.  If mineral deposits in two countries offer comparable economic returns, why bother with the country which is riddled with political uncertainties and provides a favourable climate for litigation and test cases, but an unfavourable ethos for development?

Two decades ago, international conventions on environmental issues were rarely matters of keen general concern.  Then, in the early 1980s, the Franklin Dam controversy focused attention on possible widespread use of the World Heritage Convention on Australian domestic issues. ⁽⁶⁹⁾  Throughout that decade the issues using international convention remained ones of emotional appeal, visual images and "warm and cuddly" concepts.  Rio greatly expanded the scope to include all-embracing concepts of sustainable development, biodiversity and climate change.

In theory, if all signatory nations followed the letter of each convention, one country should not generally get an international competitive edge over another.  However, at Rio such an edge was written into the Convention on Climate Change.  India, China and Chile were among those nations which chose not to be included in Annex I and are therefore not bound, like Australia, to adopt national policies and take measures to mitigate climate change.

The way each country chooses to implement international conventions is now vital.  National policies are doubly important.  And the point pleaded by the Business Council of Australia with regard to standards within Australia (see Appendix 1 below), that they be consistent and internationally competitive, is essential.

An excess of zealotry in a national policy must surely discourage investment and disadvantage international competitiveness.  The Agreements of '92 have such an excess.  For example, in greenhouse the national policy is more zealous than the convention requires.

3.7.2 Climate Change

The political groundwork for Australia to sign the Framework Convention on Climate Change had already been shrewdly laid in Australia.  Before Rio, a National Greenhouse Response Strategy (NGRS) was drafted and the principles were endorsed in Schedule 5 of the IGAE in February 1992.  The final greenhouse strategy, the National Greenhouse Response Strategy, was simply endorsed at the first meeting of the Council of Australian Governments in December 1992, in a very crowded agenda.

The greenhouse strategy is said to be "underpinned" by the National Strategy for Ecologically Sustainable Development (NSESD) also adopted by Heads of Government in December 1992. ⁽⁷⁰⁾  It is not clear what the term means, technically or scientifically, since many of the phenomena are quite unrelated or should be.

No association of either national strategy with the real world can be established through hard science.  Indeed, as predicted in 1990, "Apocalyptic visions by scientists awakened the political beast, which is developing immunity to tranquillising darts of scientific fact." ⁽⁷¹⁾  Because there was relatively little political support for criticisms such as mine, the absurdity of the National Greenhouse Response Strategy and its inconsistency with the latest CSIRO climate scenarios is now fact. ⁽⁷²⁾

The InterGovernmental Panel on Climate Change (IPCC) provided statements on greenhouse science and uncertainties.  One can say that the impacts which were formerly predicted to occur by the year 2030 are now be predicted to occur much later.  Greenhouse has been "postponed". ⁽⁷³⁾  It was consideration of such science, plus consideration of economic impact, that caused the USA to refuse to endorse a Framework Convention on Climate Change if it contained an endorsement of the Toronto Target.  While the USA then became the scapegoat for the absence of a firm target in the United Nations Convention, there can be little doubt that some other governments were relieved.  Yet Australia clings to the Toronto target with caveats, a more rigorous policy than the international convention requires.  It is time we asked ourselves, again, why?

Australia placed itself at an international disadvantage at Rio against countries like China, India and Chile, by choosing to be listed in Annex I.  With the NGRS it places itself at an even greater economic disadvantage, for no good reason.

3.7.3 Biological Diversity

In the case of Biodiversity, again the Federal "political beast" has escaped. ⁽⁷⁴⁾  The new Commonwealth legislation on endangered species is in place.  Few have publicly questioned the scientific basis for the legislation.  Some groups, such as the Tasman Institute, and industry examined the impact of the legislation -- a very different issue.  Few have asked the fundamental scientific questions about biodiversity and loss of species, just as with climate change few thought to ask if any climate change was necessarily A Bad Thing.  There is a need for clear thinking about biodiversity.

There are far-reaching implications in the Biodiversity Convention.  One would not now be surprised to see arguments that the Commonwealth must control all National Parks in order to meet Article 8, or to see arguments for Aboriginal control of them under the same Article.  One would not be surprised to see Article 14 invoked to strengthen control over EIAs, or Article 15 invoked to control access to genetic resources.

Schedule 6 of the IGAE acknowledges the leading role of the Commonwealth in drafting a National Biodiversity Strategy, and that "interests and responsibilities are not confined to any particular portfolios".  Concepts such as "endangered species" and "endangered habitats" are clearly far-reaching.  Any potential debate will be even more difficult to pursue than was greenhouse, because the sciences are softer.

This is not the place to argue how Australian scientists have permitted such sloppy science to occur, and even encouraged it.  But this is the place to point out that the political decision-makers have now comprehensively seized the environmental agenda.  Far more shrewdly than in past years, the instruments of environmental decision-making are now in place with an army of acronyms to spread confusion and despair amongst those who might challenge the wisdom of certain actions.  There are such mazes of intertwining bureaucracies and interdependencies that few can hope to comprehend them in the entirety that is essential.  And the mazes are not carved out of hard and palpable rock, but are fuzzily defined by broad platitudes and ill-defined terms, or even by terms like ESD where there is agreement not to have agreed definitions.

Biological diversity is now embedded in the NSESD, Section 9, as an "Intersectoral Issue", of which there are now 22.  Biological diversity indeed is incorporated into the very documentation, with "Gender Issues" (Section 23) being another Intersectoral Issue.  (Women were given a special mention in Principle 20 of the UNCED declaration in Rio in June 1992.  Men were not.)

And, by the potent interconnection of the National Greenhouse Response Strategy and the National Strategy for ESD and the United Nations Convention on Biological Diversity, and with the weapons of the InterGovernmental Agreement on Environment and the arsenal and armies of the CEPA and possibly the NEPA, Australia has passed through the looking glass into unreality.

Various international treaties of conservation importance have been in operation for several years.  These include rather well-known Conventions such as the RAMSAR Convention on Wetlands of International Significance (1975), and the Japan-Australia (1974) and the China-Australia (1986) Migratory Bird Agreements.

It is less well known that, prior to Rio in June 1992, Australia had signed, ratified or acceded to a total of 43 international treaties and conventions relating to the environment. ⁽⁷⁵⁾  More than half of these were committed in the 1980s, and 5 in 1990.

3.7.4 The Commonwealth's External Affairs Power

It would seem likely that the new UN Sustainable Development Commission, established as a result of the UNCED, will encourage further environmental conventions.  Bureaucracies have long perfected their own art of sustainable development, and the United Nations is among the leaders.  An ambit claim was made for a budget of $125 billion from the developed countries to permit administration.  Thus the concept of sustainable development, immense in its coverage, offers vast scope to the Commonwealth.

International conventions on environmental matters have been a matter of high sensitivity for the States since the Franklin Dam controversy of 1983.  While various constitutional powers, such as those relating to trade and commerce, or taxation, may be invoked to declare a Commonwealth interest, it is probably the external affairs power under s.51 (xxix) of the Constitution that has generated most recent uncertainties and controversies.

Fowler has summarised environmental issues where the power has been exercised in recent years. ⁽⁷⁶⁾  The Commonwealth may, by the High Court ruling in the Tasmanian Dam case, enact legislation which must be "conducive to the performance of the obligations imposed by the [international] Convention". ⁽⁷⁷⁾

Apart from issues of heritage and conservation, the external affairs power has been used to justify legislation on marine pollution, protection of stratospheric ozone and trade in hazardous wastes. ⁽⁷⁸⁾

It would seem, for example, that the Convention on Climate Change could be cited to legitimise Commonwealth legislation on auditing of greenhouse gases and regulation of the energy sector.  Whether Agenda 21 imposes "obligations" of a comparable weight is not an issue I would even attempt to contemplate.

Arrangements for the Commonwealth to consult the States about international treaties of environmental relevance are dealt with in Section 2.5.2 of the IGAE.  The extent to which the Department of Foreign Affairs consults, say, a State environmental agency is clearly beyond the scope of this paper.  Only the naïve could assume that it will always be done.

If, however, one of the purposes of the IGAE was to reduce uncertainty as to possible intervention by the Commonwealth on the grounds of environmental interest, one has to conclude that the effort has been unsuccessful.  Undeniably, the scope for Commonwealth intervention has been greatly expanded by Rio, the National Strategies and the IGAE.  The concept of sustainable development has vast scope, as does greenhouse which captures energy issues.

If a proponent is discussing a project with a State, the Commonwealth now has several new means of securing a role.

Under Section 2.5.3.3 of the IGAE:

Where the Commonwealth wishes to determine whether or not a State agrees that an environmental matter in that State involves the interests of the Commonwealth, it may seek advice from the State concerned and the State and the Commonwealth will, if necessary, enter into discussions on the matter within four weeks after the State receives the request for advice.

There is no time frame for conclusion of discussion.  Under Section 2.5.3.2, where a State initiates discussion, up to 12 weeks may pass before the Commonwealth declares its interest.

The international conventions may enable the external affairs power to be invoked.  But the IGAE more broadly invites such interest.

The NSESD provides a commonality of policies for all nine governments, but it greatly expands their intervention into economic activities, particularly the opportunities for intervention by the Commonwealth government.

Before 1992, the Commonwealth could hook into a project via national interest or an international treaty.  Now, with the IGAE, it has virtually unlimited scope for intervention if it so desires.  One problem is, once both a State and the Commonwealth are jointly hooked into a project, who decides which one is actually responsible for securing a satisfactory outcome?  The IGAE, by ensuring a co-operative approach, may have created more uncertainty than would exist under either a State's rights approach or a Commonwealth dictatorship.

One thing is clear for any State government with the ambition of controlling its own environment:  it should seek clarification of the above issues before the Commonwealth moves to ratify the Rio conventions.

In this context, it is not mischievous to point out that the IGAE came into effect about one month before the Commonwealth signed, at Rio:

• the Framework Convention on Climate Change;
• the Convention on Biological Diversity;
• the Rio Declaration;  and
• Agenda 21.

At the time the IGAE came into effect, it was still uncertain whether for example, the Climate Change Convention would call for the Toronto Target or not.  It did not, but the IGAE does.

Thus by way of the IGAE and the threat of Rio, the States have agreed to the Commonwealth greenhouse policy and a target (the Toronto target) which the Commonwealth could not now impose by way of its external affairs power.

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ENDNOTES

18.  See R.J. Fowler, Environmental Impact Assessment, Planning and Pollution Measurement in Australia;  Australian Environment Council, Guide to environmental legislation and administrative arrangements in Australia, Report No. 16;  and O'Brien, The Functions and Purposes of Environmental Assessments.

19.  IGAE, Section 2.5.4.1.

20.  Ibid., Section 3.5.2.

21.  Ibid., Section 3.5.3.  "Ecological integrity" is not defined.

22.  Ibid., Section 3.5.

23.  They are, however, analysed in Brian J. O'Brien, Revitalising Environmental Assessments.

24.  Senate Standing Committee on Industry, Science and Technology, Rescue the Future:  Reducing the impact of the greenhouse effect.

25.  IGAE, Section 3.5.4.

26.  BCA, "A Federal EPA for Australia?";  Fowler, Proposal for a Federal Environment Protection Agency.

27.  BCA, "A Federal EPA for Australia?"

28.  Fowler, Proposal for a Federal Environment Protection Agency, pages viii, x and xii.

29.  House of Representatives Standing Committee on Conservation and Environment, Environmental Protection, Adequacy of Legislative and Administrative Arrangements, para. 151.

30.  These numbers include resources earmarked in the Prime Minister's statement on the environment in December 1992.  Pers. comm., David Buckingham.

31.  IGAE, Schedule 4.

32.  CEPA, page 19.

33.  IGAE, Schedule 4, Section 2.

34.  See IGAE, Schedule 4, Section 6.

35.  See IGAE, Schedule 4, Section 26.

36.  IGAE, Schedule 4, Section 10.

37.  I. McPhail, "The Role of CEPA and NEPA -- Towards a National Approach to Environmental Protection in Australia".

38.  Intergovernmental ESD Steering Committee, Compendium.

39.  National Strategy for Ecologically Sustainable Development, page 10.  (Hereafter "NSESD".)

40.  NSESD, page 6.

41.  NSESD, final draft, page 3.

42.  NSESD, page 6.

43.  IGAE, Schedule 3, Section 3.

44.  Agriculture, Fisheries Ecosystem Management, Forest Resource Use and Management, Manufacturing, Mining, Urban and Transport Planning, Tourism, Energy Use, Energy Production, and Transport.

45.  For example, Biological Diversity, Land Use Planning and Decision Making, Changes to Government Institutions and Machinery, Native Vegetation, Gender Issues, Population Issues.

46.  NSDED, page 109.

47.  NSDED, Section 6, Objective 6.2, Second Commitment, page 41.

48.  O'Brien, Postponing Greenhouse.

49.  Intergovernmental ESD Steering Committee, Compendium.

50.  Johnson, The Earth Summit -- The United Nations Conference on Environment and Development (UNCED).

51.  NSESD, page 23.

52.  Intersectoral Issues Report, page 97.

53.  IGAE, Section 3.5.1.

54.  Loc. cit.

55.  A. Wildavsky, Trial Without Error:  Anticipation vs Resilience as Strategies for Risk Reduction.

56.  Wildavsky, ibid.;  W Kip. Viscusi, "Risk perceptions in Regulation, Tort Liability and the Market", page 50.

57.  Josephine Flood, Archaeology of the Dreamtime, page 244.

58.  Peter Murray, "The Pleistocene Megafauna of Australia".

59.  National Strategy for the Conservation of Australia's Biological Diversity.

60.  Flood, op. cit.

61.  See Flood, op. cit., and the references therein.

62.  See Ken A. Johnson et al, "Australian Macropodoidea:  Status, causes of decline and future research and management".

63.  NSESD, page 18.

64.  For a discussion, see Industry Commission, Inquiry Into the Costs and Benefits of Reducing Greenhouse Gas Emissions.

65.  CSIRO, The Science of Greenhouse;  O'Brien, "Response to the CSIRO".

66.  CSIRO, Climate Change Scenarios for the Australian Region.

67.  Australian Bureau of Statistics, Australia's Environment:  Issues and Facts, page 125;  and National Greenhouse Advisory Committee, Grappling with Greenhouse, page 30.

68.  See, for example, Colin Howard, "The UNCED Conference and the External Affairs Power".

69.  Convention Concerning the Protection of the World Cultural and Natural Heritage.  (Ratified by Australia on 17 December 1975.)

70.  National Greenhouse Response Strategy, Appendix A.

71.  O'Brien, Postponing Greenhouse, page 39.

72.  Letters, The Australian, 28 January 1993.

73.  O'Brien, Postponing Greenhouse.

74.  Ibid., page 5.

75.  Australian National Report to UNCED.

76.  Fowler, Proposed for a Federal Environment Protection Agency.

77.  Justice G. Brennan, Commonwealth v Tasmania, 158 Commonwealth Law Reports, I, 1983.

78.  See Fowler, Proposal for a Federal Environment Protection Agency.