Forces Leading to the Agreements of '92

CHAPTER TWO

2.1 GENERAL

The forces that led to the Agreements of '92 were a unique combination of international and Australian influences.

The external forces were two decades of environmental globalism.  Starting with the First United Nations Conference on the Human Environment in Stockholm in 1972, the first decade was largely international flagwaving by way of the 1980 World Conservation Strategy and thence national equivalents.  But the second decade armed itself with a bible, Our Common Future ⁽³⁾ written by the Brundtland Commission, and it was inevitable that the Rio Convention, on the 20th anniversary of Stockholm, would be a call for action and for legally binding conventions on a truly grand scale. ⁽⁴⁾

Like the prospect of an imminent hanging, the Rio Convention concentrated the minds of the Canberra politicians and bureaucracy.  Their previous attempts to intervene in State environmental issues, via the external affairs power, had been legitimised by the High Court in the Tasmanian Franklin Dam dispute of 1983.  But such ad hoc interventionism was not a builder of confidence or stability for either Commonwealth or State governments.  Rio presented a unique opportunity, and an excuse, to take a national stance on major issues.

In addition, there were many other internal considerations at work in Australia, calling for a national rationalisation of environmental issues, that had no link with Rio.  There were believers in a new federalism, a partnership of governments.  And the environment was simply a high-profile but little-understood card for Premiers to deal, amidst shuffling of the economic deck at Special Premiers' Conferences.  There was also a widespread desire for uniformity and national environmental standards.  It was believed, quite simply, that a warm, national hug of such uniformity would somehow "make things better".

2.2 EXTERNAL FORCES -- ENVIRONMENTAL GLOBALISM

A fundamental influence on environmental federalism in Australia has been the increasing political globalism of the environment.  Local and State decisions may be assessed against international treaties or expectations of global righteousness.

The field of environment is not the only one where United Nations codes and obligations may be invoked in what may seem to be Australian domestic issues.  Justice Michael Kirby considers that "several of the trailblazing decisions [of the High Court in 1992] were influenced by the fact that what Australian courts decide can now be scrutinised (and criticised) by the UN body [the United Nations Human Rights Committee]." ⁽⁵⁾

The environment, with its indefinite range, its confused emotions, and its scientific complexities, offers unlimited scope for global aspirations.  The words of conventions, even those negotiated in earnest goodwill by hard-working and knowledgeable Australians, can diffuse into platitudes of limitless applicability.  Environmental law is one of the few growth industries in Australia.

Furthermore, the political influence of a United Nations statement remains strong.  An environmental cause espoused as a global issue, such as greenhouse and climate change, or biodiversity, can be enthusiastically embraced by Australia's representatives.  Words rather than outcomes are all that is required.  Our politicians can then imagine themselves as world leaders, and rush to outperform other countries verbally, irrespective of Australia's geographic isolation and southern hemisphere location.  How often must one cringe at claims that Australia is a world leader in greenhouse awareness, or that Australia was the first or the fourth to sign this or that Convention?

As a consequence of such globalism, Australia may well abandon precisely those attributes on which it should be capitalising to improve its international competitiveness.

For example, it has been speculated that Australia's being surrounded by several thousand kilometres of oceans may give it a competitive greenhouse advantage over other countries as a site for industries burning fossil fuels.  The CSIRO has argued that this is unlikely, but the matter is unresolved. ⁽⁶⁾

Furthermore, Australia can save greenhouse gas emissions produced in transporting its raw materials overseas by smelting them locally.  It could also reduce global greenhouse by making hundreds of millions of highly-efficient, pot-belly stoves and exporting them to China, whose family cooking fires burn coal so inefficiently, producing unnecessary excesses of greenhouse gases.

Yet the political pressure to regard Australia as part of a homogeneous global village inhibits the investigation of such non-uniformities.  Our carbon dioxide emissions are politically incorrect, and we must copy, so we are told, the Danish or Swedish examples.

Australians are urged to feel guilty because per capita emission of carbon dioxide is quoted (inaccurately) as the fifth-highest in the world. ⁽⁷⁾  This is implicitly attributed to our hedonistic life style.  It should really be related also to our being a world leader in supplying food, such as wheat, or metals, such as aluminium and gold, or minerals, such as iron ore, coal, diamonds, mineral sands and the like.

Quite separate from such constraints on Australian life-styles is the powerful suasion that is exerted within Australian policy-making councils, by Commonwealth efforts to match or excel efforts by other countries.  This is one of the most effective weapons in the nationalisation of environmental issues.  States are persuaded of "national interests", or made to feel guilty.  The technique is effective for both officials and politicians who may be exposed to public questioning.  The IGAE empowers the Commonwealth to "facilitate the co-operative development of national environmental standards". ⁽⁸⁾

Consider the processes under the umbrella title of "greenhouse".  Under the United Nations Framework Convention on Climate Change, Article 4, each developed member Party is committed to providing information on its policies and measures.  In particular, within six months of the entry into force of the Convention, after 50 countries have ratified it, national inventories of sources and sinks are required.

Theoretically, the Commonwealth government could have its agencies prepare such an Australian response without formal participation by the States and Territories.  But in a spirit of national unity, there were moves towards a truly national greenhouse strategy.  And to achieve that, a draft strategy was published and public participation sought, with comments direct to Canberra.  The end result was the National Greenhouse Response Strategy (NGRS) endorsed by Premiers and the Prime Minister on 7 December 1992. ⁽⁹⁾  It provides machinery for broad participation, with a National Greenhouse Steering Committee (NGSC) coordinating reports to the Council of Australian Governments, after responsible agencies forward reports to the NGSC.  The National Greenhouse Gas Inventory (NGGI) Committee will prepare inventories of greenhouse emissions and sinks on a State-by-State basis as well as a national basis. ⁽¹⁰⁾

In the political forum of environment Ministers thus created, there will clearly be temptations for one government to outperform others.  It is necessary to appreciate in this context the responsibilities of environment Ministers at such national councils.  In a sense some Ministers could be perceived as perhaps being somewhat idealistic and removed from the harsh realities that accompany other Ministerial councils.  Environment Ministers usually make recommendations to decision-making Ministers, rather than take action themselves.  Control of vehicle emissions, for example, is by Ministers of Transport, not Ministers for Environment.

A simple contrast between the 1990 greenhouse policies of the Australian Ministerial councils for minerals and energy (AMEC) and environment (ANZEC) makes this point clearly.  AMEC considered that by the year 2005 it would be feasible to reduce greenhouse emissions from a foreseen growth of 33 per cent to one of 13 per cent (still 33 per cent above the Toronto target).  ANZEC considered the Toronto target was acceptable as an interim goal, but wished to pursue a more ambitious reduction to 53 per cent below what AMEC considered feasible. ⁽¹¹⁾

As a consequence, the risk is that an environment Minister or agency of one State may try to outperform another.  In Western Australia, the environment agency sought to have leading industries provide greenhouse inventories, justifying the move as part of a perceived demand from "the east".  Individual inventories were loosely linked to the pollution control licences some industries have.  The potential or perceived threat of greenhouse control via pollution licences caused considerable disquiet in industry, but was an understandable progression of bureaucratic thinking, derived initially from environmental globalism and transferred via environmental nationalisation, and the requirements to report.

It is in the possible synergy of globalisation and Australian nationalisation that international affairs can play a major part in Australia's regulation of the environment.  If the new US Vice-President, for example, carries forward his previous views on environmental issues, then the ripple effect could be felt very quickly in Australian factories and other industry.

One of the problems in transferring global conventions into detailed national strategies, and then implementing them, is that the highly structured language of diplomats is not the same language as that of junior bureaucrats issuing licences.  Complex philosophies such as the "precautionary principle" are too subtle for the question "Do I give them a licence or not?"  To avoid blame, a confused bureaucrat may load the licence with extra conditions.

The "global essence" that led to the National Strategy for Ecologically Sustainable Development was more remote from real practical actions than greenhouse, and was consistently dominated and organised on a national scale.  States had relatively little part to play other than in an accompanying chorus which was not only politically correct but politically compulsory (see Section 3.1 below).

The concept of ESD, like the concept that led to the National Conservation Strategy of 1983, involves national organisations of industry and conservation interests.  However, unlike the earlier strategies that stemmed from the toothless World Conservation Strategy of 1980, the new moves may have the twin forces of international convention and the external affairs power of the Commonwealth, to make the platitudes bite, as discussed in Section 3.7.4 below.

2.3 INTERNAL FORCES -- THE NEED FOR NATIONAL RATIONALISATION

Over the past twenty years there have been various discussions of national environmental issues.  The National Conservation Strategy of 1983 and the more recent spate of work on Ecologically Sustainable Development are examples. ⁽¹²⁾

A common thread running through such discussions is a call for rationalisation of environmental controls at a national level, either co-operatively or unilaterally by the Commonwealth government.  The Commonwealth produced a Position Paper which attempted to capture such ideas in July 1991. ⁽¹³⁾, ⁽¹⁴⁾

At much the same time individual governments continued to promote their own environmental responsibilities.  The consultative processes on environmental matters leading up to the Rio Conference in June 1992 coincided happily with the Special Premiers' Conference processes.  The subsequent environmental strategies and agreements were then captured largely at First Minister's departmental level, rather than in the environmental portfolios.  It is not clear that the result was an increase in rigour, objectivity or balance, and indeed there is evidence to the contrary (see Sections 3.5, 3.6 below).

Whatever the causes, the subsequent documentation was largely concerned with platitudes and processes rather than outcomes and results.  Much of their papers parrots such profundities as:

Pollution recognises no boundaries, political or geographic ... [governments want] new and effective collaborative arrangements to ensure effective environmental protection. 14

Much writing has been procedural -- as to who should do what to whom, how and when.  Emphasis is on government processes, such as environmental assessments, setting of standards and controls.  Ubiquitous word processors and consensus have expanded the quantity of papers.

Over the past twenty years, individual State governments have given repeated individual attention to reviews of environmental processes and controls, particularly as regards environmental impact assessments (EIAs).  Various State governments have struggled with the concept of their own centralised environmental protection agency or authority which in some governments concentrates on the physical environment and in other governments also includes conservation.  Some governments have a centralised EPA which is not responsible for environmental impact assessments, as these are sometimes treated separately as part of the planning process. ⁽¹⁵⁾

Some changes in government environmental processes are the results of political preferences while others have come about through pressures from development and/or conservation bodies.  Industry and conservation groups alike have expressed dissatisfaction with the status quo.  Dissatisfaction has caused changes.  Long-term stability of environmental control is not a feature of Australian governments, and this instability has often resulted itself in general unease and extensive confusion, and further renewed calls for change.

The history of environmental legislation and administrative arrangements in Australia up to 1984 is summarised by the 340-page report of the Australian Environment Council (1984), made up of Ministers for the Environment.  By 1984, each government quoted a few dozen relevant statutes (see Table 1), for a total of 318 Acts of Parliament to look after the Australian environment.  By 1986, the listed total was 324.

Table 1:  Environmental Legislation in Australia

Government	Number of Acts
	1984	1986
Commonwealth	37	38
New South Wales	36	38
Victoria	57	55
Queensland	34	38
South Australia	49	51
Western Australia	43	43
Tasmania	23	23
Northern Territory	39	38

Source:  Australian Environment Council Report No. 16, 1984, No. 18, 1986.

Obviously one has to treat such counts with care, because "environment" is so eclectic.  For example, only two States and the Commonwealth included a Whaling Act, but all except the ACT included a form of Aboriginal heritage legislation.

The counts came from the Council of Environment Ministers.  But the scope for each government would have depended on whether it was perceived as A Good Thing to have been either (a) very busy in environmental legislation, and thus have a large count, or (b) very skilful in centralising control under an umbrella Act, a "One Stop Shop", and thus have a small count.  What seems an interesting point, is that while in the 1984 count no two governments had the same numbers of environmental Acts, in 1986 no fewer than four out of nine governments listed exactly 38 Acts.

Government attitudes change, but the Second Law of Thermodynamics ⁽¹⁶⁾ governs even the most skilful Parliamentary drafts-persons, and more laws are proclaimed than are repealed.

Many changes and many reviews of environmental legislation have occurred in most governments since 1986, and such counts have changed.  However, environmental controls have usually become (i) more numerous (ii) more extensive and (iii) more intensive.  It is not obvious that there has been a corresponding increased effectiveness in pollution control and prevention of environmental damage.

With nine governments in Australia, often not serving full electoral terms, a season seldom passes without some significant changes somewhere in the environmental rules.  A call for nationwide uniformity and consistency therefore may seem reasonable.

There has been agreement in industry that there are two needs:  to reduce or at least to systematise government intervention in things environmental, and in some areas to standardise government controls nationwide, or at least make them consistent (see Section 4.4 below).  By contrast, conservation groups urge greater intervention by governments, and more intense and powerful Commonwealth roles. ⁽¹⁷⁾

At the same time, the Commonwealth government has been angling for an increasingly superior position in the high-profile issue of environment.  It has been seemingly disadvantaged because the concept of "environment" was not in vogue, when the Constitution was written.  Between 1972 and 1975 the Commonwealth had a brief flurry of activism under Gough Whitlam and Moss Cass, and then for 16 years resorted to pre-emptive strikes on a few high-profile projects, until 1991.  Most of these projects, dubbed of national concern, were in remote areas so development and local employment were less politically important than the colour-television fantasies of urban greenies about unspoilt wildernesses being preserved for their holidays.

Fraser Island, Franklin River, Kakadu and Daintree became national names and holiday playgrounds, while Wesley Vale was a conflict area of different complexities of a scientific and political nature.  In the late 1980s and early 1990s, vague policies and principles had more influence over outcomes than hard facts.  Visual images were more important than hard numbers.  TV news about Coronation Hill was given against a backdrop of Crocodile Dundee, beautiful untouched lagoons and waterfalls, not the actual terraced hill already mined for uranium in the 1950s and 1960s.  Political platitudes to comfort the voters became more important than the real world of international competition.  The environment was politicised.  And the emphasis was on gloom, and thus on salvation.

Hence from 1990 to 1992, a natural development in terms of political appeal was to institute national agreements on a wide range of environmental issues and policies.  The first Special Premiers' Conference in October 1990 foreshadowed an InterGovernmental Agreement on the Environment (IGAE) which took effect on 1 May 1992.  The Commonwealth also needed to position itself to present national stances on several issues in preparation for the June '92 United Nations Conference on Environment and Development (UNCED) in Rio.

Thus in 1991 and 1992 there were four interwoven streams of environmental considerations active in many of the nine Australian governments:

• a long-sought rationalisation, perhaps nationwide, of environmental controls by government, to be consistent, more efficient and perhaps uniform;
• clarification and expansion of the role and function of the Commonwealth government in environmental issues;
• development of policies and principles acceptable to Australians which would position Australia on the international environmental stage;  and
• the politicisation of the environment.

These four streams resulted in the Agreements of '92.

Without exception the Agreements tend to increase government involvement and magnify -- or else acknowledge -- a leading role by the Commonwealth.  They nationalised the Australian environment.

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ENDNOTES

3.  WCED, Our Common Future, 1987.

4.  Stanley P. Johnson, The Earth Summit -- The United Nations Conference on Environment and Development (UNCED), 1993.

5.  Bulletin, January 19 1993.

6.  See Brian J. O'Brien, "Seven Scientific Flaws Shrouding the Toronto 20% Target", Parts 1 & 2;  CSIRO, "The Science of Greenhouse";  and Brian J. O'Brien, "Response to the CSIRO".  The oceans are known to absorb carbon dioxide.  They are "sinks" of this greenhouse gas.

7.  See Brian J. O'Brien, Postponing Greenhouse:  Climate Change -- Facts, Issues and Policies in 1990.

8.  InterGovernmental Agreement on the Environment, Section 2.2.1.iii. (Hereafter "IGAE".)

9.  Hereafter, the Premiers and the Prime Minister are referred to as "First Ministers".

10.  National Greenhouse Response Strategy, Section 2.12.

11.  See discussion in O'Brien, Postponing Greenhouse, page 27.

12.  For example, ESD Working Group, Mining;  and ESD Working Group, Inter-sectoral Issues Report.

13.  DASET, Australian National Report to the United Nations Conference on Environment and Development.

14.  CEPA, Proposed Commonwealth Environment Protection Agency, page ii. (Hereafter "CEPA")

15.  See Brian J. O'Brien, The Functions and Purposes of Environmental Assessments.

16.  The Second Law of Thermodynamics may be variously expressed.  It states that a perpetual motion machine is impossible.  It states that no energy process is 100 per cent efficient.  Parkinson's Law is a derivative.

17.  See R J. Fowler, Proposal for a Federal Environment Protection Agency;  and see also Section 3.7.4 below.