The Fightback should continue by another title

The coalition came close to winning government last month and should hang on to its current policies.

BY CONTRAST with the 1990 election held in the early stages of recession, the March 1993 election was not a good one to lose.  Many major overseas economies continue to struggle but, with luck, the worst of the debt-overhang problems from the spending extravaganza of the 1980s may now be passing, both here and overseas.  Growth and employment will be slow to recover, and unemployment is likely to remain considerably higher than in the 1980s.

But if the right policies are followed, the Government should be able to capitalise on the dramatic reduction in cost levels wrought by the recession and make Australia a truly cost-competitive country internationally.  Given the policies, Labor could enter the 1996 election with the economy moving to sustainable higher growth and the coalition could be struggling for the rest of the 1990s.

This raises the question, which both political parties face:  what are those "right" policies?  In his article (The Age, 30/3), Robert Manne categorised alternatives which implied that the Liberals have five options -- no change, no change except for the GST, warm and dry, social conservatism with economic rationalism, and new protectionism.

These possibilities -- and more -- seem to have been reflected in last week's Liberal postmortem.  Manne himself obviously favours new protectionism, which without offering evidence he weirdly suggests is "more likely to appeal to the more open-minded and pragmatic members of the younger Liberal generation".

One trouble with such simple classifications is that they focus on points of difference within the coalition and between it and Labor, as well as on minority viewpoints, and they ignore the considerable amount of common ground.

IT IS laughable to suggest, for example, that the Liberals have "been in the hands of a group of radical free-marketeers" for the past 10 years.

Libertarians would certainly be astonished to learn that Dr Manne also puts me in that category.

Manne's attempts to brush aside the main cause of the election defeat are also unconvincing.  Very few now disagree that, without the 15 per cent GST, the coalition would have won the election.

That they got so close even with the GST (only 1500 votes short across eight marginal seats) surely confirms that, after 10 years in office, with a million unemployed and a net foreign debt of $168 billion, Labor would have lost convincingly without the GST.

This is not to say that the rest of the coalition's policies were all appropriately framed, or trouble-free from a political viewpoint.  For one thing, without the authority of government and public service back-up, the coalition was unwise to offer so much detail.  With Dr Hewson expending so much energy defending the GST, the benefits of other policies were also undersold.

But the explosion of analyses by people on the right of politics since the election may largely be redundant anyway.  As Mr Keating said on election eve:  "There is no question about change.  I have no doubt Australians are tired of it, but equally I have no doubt they accept the need for it."

The art of politics is to find the middle ground.  Mr Keating's record suggests that he is likely to seek the middle ground in economic policy by moving ahead with structural change in industrial relations, government services and industry protection to improve productivity and increase Australia's competitiveness.

A recent report to the Business Council of Australia showed that average productivity levels in Australia's leading companies are 25 to 50 per cent below world-best practice and that since 1988 there has been no closing of this "productivity gap".

It concluded that, notwithstanding moves in the right direction, the present industrial relations system does not allow business to make the changes needed to catch up.

BECAUSE of its close links with unions, Labor has found it difficult to break down their privileged position in industrial relations and associated arrangements.

While Mr Keating has consistently argued that it is Labor that "dragged" Australia out of isolation into the global economy, in practice structural reform under Labor was slow, piecemeal and continually retarded by union resistance.

Now, however, Mr Keating sees himself as "emperor" riding an invigorated and competitive economy horse into South-East Asia.  He will have to apply the whip and possibly even the spurs to unions, business and government.

To the extent that Mr Keating steals the structural-change clothes of Fightback, this could be the central problem faced by the coalition.

Indeed, unless Labor presses ahead with structural reforms on a broad front, our economy will remain relatively stagnant because it will not attract the business investment necessary for improved living standards and lower unemployment.

In the new reality of the global economy -- a reality which has passed the new protectionists by -- competitiveness is the name of the game.

Witness the recent comments by the chairman of Amcor, Stan Wallis, and the latest developments at Heinz, indicating that Australia is not competitive for the international capital dollar.

What this suggests is that, if they are to stand a chance in 1996, the coalition parties will have little practical choice but to advocate most of the Fightback reforms -- but by another name.

With Labor pursuing structural reforms in a corporatist-centralist vein, the only real alternative for the coalition will be to argue for a more market-oriented, less government-interventionist strategy on grounds of efficiency, equity and freedom from Big Brother in Canberra.

If they adopt a strategy of more government intervention and a return to the past, the coalition will simply become irrelevant.

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Recommendations

CHAPTER SEVEN

As a result of this overview analysis, and considering the interactions and cumulative impacts of the Agreements of '92, it is clear that remedial actions are required in 1993, as a matter of urgency.  The ANZECC meets in May 1993, after Standing Committee meetings in March and May, and legislation to establish the NEPA is scheduled before the end of April.

The environment is but one of many components influencing Australian investment and international competitiveness.  Australia has the indigenous resilience bred of millennia and the human ingenuity to turn the environment into a positive factor instead of the overwhelmingly inhibiting and uncertain influence conveyed by the Agreements of '92.

The Agreements contain valuable elements that Australians accept as important to their present and future.  Concepts such as sustainable development, a "no regrets" policy on greenhouse, intergenerational equity that includes today's community, and balanced environmental ethics, have broad community support.  Such fundamentals must remain.  But somewhere during 1992 the government processes that bred the Agreements of '92 became flawed and out of balance, leading to documents and processes that Australians cannot afford and would not tolerate were they fully informed.

In the light of such uncertainties, and in the turmoil of organisational stresses and discussions in 1992, it is clear that one must demand measurable outcomes at an early date.

Accordingly, the CEPA's work should be focused on major national issues which are keys to national efficiency and international competitiveness, as well as environmental protection.  I suggest that two such issues are national standards and environmental impact assessments.  (It may be noted that after this recommendation had been arrived at independently, it was found to be in broad agreement with the approach being taken within the CEPA management.) ⁽¹⁰³⁾  It is understood that a Corporate Plan is being prepared for the CEPA.

The CEPA could be an honest broker to assist the States and Territories.  Most important is that the CEPA should produce identifiable outcomes of measurable economic and environmental benefit. A one-year test is a minimum.  Measurable results are a must.

It is important to recognise that the NEPA is to become an actuality under a schedule and agreement of the IGAE.  Draft legislation is to be available to First Ministers before May 1993, and they are committed to seeking Parliamentary approvals of the outcome.

It is fascinating to speculate whether State Parliaments or any one Parliament will give as vigorous consideration to the NEPA as they would to a Bill creating their own State environmental agency.

Upon consideration of the following factors:

• newness of the CEPA;
• complexities of existing statutory arrangements;
• environmental and statutory diversities in Australia;
• the state of the Australian economy;
• the dichotomy of administrative arrangements for the physical and biological environments;
• the large bureaucracy of the new agency, the CEPA;  and
• proposed functions and processes of the NEPA

one has to conclude that there is no present, urgent need for the NEPA, however defined.

When one considers that the very concept of the NEPA appears contrary to each State's rights to set its own priorities in environmental protection, opposition to the NEPA hardens.

The following ten recommendations are put forward as a modest and incomplete contribution to the future responsible development of Australia's environmental policies and as practical measures which can retain what was valuable in the achievements of 1992.

1. Whereas the IGAE presently calls for draft legislation on the NEPA to be presented to First Ministers before the end of April, 1993, the evidence presented in this paper shows this to be a premature and unsafe move which must not be allowed to gain further momentum or present further distractions to useful activities,

   it is recommended

   that moves to establish the NEPA stop.

2. Whereas the National Strategy for Ecologically Sustainable Development is fatally flawed because:

   • it cannot agree on the fundamental definition of the term Ecologically Sustainable Development;
   • it is totally uncosted;
   • it is unbalanced;
   • it advocates an immense increase in government interventions;
   • it agrees that all its 384 government commitments cannot be implemented;  and
   • consequently, various governments may or may not undertake various processes so that uncertainties are being spread widely over most developments and ongoing government actions in many fields,
   
   

   it is recommended

   that a new InterGovernmental Agreement be negotiated with an economic development vision that concentrates on encouraging and responsibly enabling the development aspects of sustainable development, and that is relevant to Australia, thereby injecting balance and economic support into long-term environmental policies by promoting forceful future growth as advocated by the Brundtland Commission.

3. Whereas the IGAE supports the precautionary principle expressed with a zero-risk ethos which would promote lack of action, be contrary to a proud Australian heritage and adverse to Australia's future national and global responsibilities, and

   Whereas Brundtland pointed out that sustainable development requires "growth that is forceful",

   it is recommended

   that the definition of the precautionary principle be rewritten and promoted to be specifically relevant to Australia, with the benefits and heritage of a responsible finite risk approach explained accurately to the community, and with economic cost included as a factor.

4. Whereas the priorities of the CEPA are widely dispersed across many issues, including non-urgent matters such as improved recycling, the B. Smart programme and reporting on the state of the environment, and

   Whereas nationalising the environment has unknown costs and unproven benefits to either the environment or the economy, so that it would be prudent to focus the CEPA on testing the concept, and delivering measurable outcomes,

   it is recommended

   that the CEPA priorities be focused for at least one year by serving as an honest broker to coordinate actions by States and Territories and achieve measurable outcomes on two issues that have major impacts directly on Australia's economic and environmental well-being and international competitiveness, viz:

   • national standards vis-à-vis risks, and
   • environmental impact assessments (EIAs).




5. Whereas the present ethos of the precautionary principle neglects the diversity, indigenous ruggedness and resilience of the Australian environment, some Australian government regulatory processes and standards may be unnecessarily over-protective to the environment, with a consequential heavy but uncalculated cost both directly and through lost opportunities,

   it is recommended

   that as a first test, the CEPA critically examine the major existing environmental regulatory standards and assess them not simply in the light of known risks but also as to:

   1. their relevance to Australia and its diverse environments
   2. their true and total cost impact on the community, including forgone benefits;  and
   3. the very concept of uniform national environmental standards.




6. Whereas all environmental agencies are presently conferring on processes of environmental impact assessments (EIAs), with schedules and extensive details that would continue the outdated 1970s thrust of EIAs as weapons against development rather than enabling tools for responsible development in the environmentally skilled 1990s,

   it is recommended

   that as a second test, the CEPA explore the efficiency and environmentally-responsible opportunities available by recognising the environmental maturity, skills and community awareness of environmental ethics that have developed in Australia over the past two decades, and help the States and Territories revitalise the purpose and functions of EIAs for Australia in the 1990s.

7. Whereas the National Greenhouse Response Strategy is fatally flawed because:

   • it does not have as its basis the most elementary and fundamental numbers as to how much hotter greenhouse would make Australia, with or without the Strategy, and
   • it was developed before the November 1992 major revision by CSIRO of the future climate scenario,
   
   

   it is recommended

   that the National Greenhouse Response Strategy be reviewed under three specific terms of reference:

   1. to take account of the much smaller greenhouse impacts now forecast by CSIRO,
   2. to take account of its relevance specifically to Australia, both as to its geographical location and its resource richness;  and
   3. to take account of the importance of natural changes in climate, particularly those associated with El Niño-Southern Oscillation effects which cause extensive floods and droughts in Australia.




8. Whereas the Australian representative signed the UN Framework Convention on Climate Change in Rio in June, 1992, and the Convention contains responsibilities as to greenhouse policies and reporting, which could impact on Australia, and already disadvantage it against international competitors like India and Chile,

   it is recommended

   that Australia refrain from considering ratification of the Convention on Climate Change until the National Greenhouse Response Strategy is rationalised as per the previous recommendation.

9. Whereas the Australian representative signed the Biological Diversity Convention in Rio in June 1992, and the IGAE Schedule 6 recognises its wide-ranging ramifications and provides mechanisms for Australian consultation on this Convention, but the Commonwealth is still drafting a national strategy for the conservation of biological diversity,

   it is recommended

   that the international Biological Diversity Convention not be ratified until a draft national strategy is exposed to a second round of public scrutiny.

10. Whereas the new Commonwealth agency, the CEPA, is concentrating on issues of the physical environment, while the established Australian National Parks and Wildlife Service continues its traditional work on conservation, including endangered species, yet most other Australian governments have reached accommodation on resolving problems where both physical and biological environments are important,

    it is recommended

    that national strategies in conservation issues such as biological diversity not be finalised until the feasibility and practical advantages of a nationalised approach to environmental issues be palpably demonstrated by the CEPA, with measurable outcomes of both increased efficiency and more effective environmental management.

The major and potentially most valuable achievement of the Agreements of '92 was the formal, structured commitment to the environment by the First Ministers.  The pity was the material they had to work with.  These recommendations to not imply cancelling that commitment but rather giving it a rational, and Australian, base.

If, after appropriate review of this paper by governments and industry, its criticisms of the total effects of the Agreements of '92 are found to be valid, then implementation of the recommendations should begin quickly.  Implementation of every recommendation is both feasible and urgent.

Under the IGAE Section 5.1, the IGAE operation is due to be reviewed in 1995, which is intolerably late.  International reporting requirements of Rio conventions will not permit either indecision or delay.  Governments must bite the bullet and take remedial and effective actions.

The Federal election of 1996 constricts the window of opportunity for action on the recommendations to 1993 and 1994, and perhaps early 1995.  Such a short interval requires rapid and concerted action by several governments.

The Commonwealth, of its own volition, could begin action on most recommendations.  State governments will need to urge and otherwise assist such actions.

---

REFERENCES

Abelson, Phillip H., "Regulatory Costs", Science, 259, 1993, page 159.

Australian Bureau of Statistics, Australia's Environment:  Issues and Facts, Cat. No. 4140.0.  1992.

Australian Environment Council.  Guide to environmental legislation and administrative arrangements in Australia, Report No. 16, AGPS, Canberra, 1984.

Australian Environment Council, Report No 18, AGPS, Canberra, 1986.

Australian National Report to the United Nations Conference on Environment and Development, Public Discussion Draft, DASET, Canberra, 30 July 1991.

ANZECC, A National Approach to Environmental Impact Assessment in Australia, October 1991.

Brennan, Justice G., Commonwealth v Tasmania, 158 Commonwealth Law Reports, 1, 1983.

Bureau of Industry Economics.  Environmental Assessment -- Impact on major projects, Research Report No. 35, AGPS, Canberra, 1990.

BCA, "A Federal EPA for Australia?" in Business Council Bulletin January/February 1991.

CEPA, Proposed Commonwealth Environment Protection Agency, Position Paper for Public Comment, DASET, Canberra, July 1991.

CSIRO, "The Science of Greenhouse", Business Council Bulletin, June 1991.

CSIRO, Climate Change Scenarios for the Australian Region, Climate Impact Group, CSIRO Division of Atmospheric Research, Melbourne.  Issued November 1992.

DASET, Australian National Report to the United Nations Conference on Environment and Development, AGPS, Canberra, December 1991.  Cat. No. 912129 9.

EPA, Victoria., Draft Environmental Protection Policy:  The Waters of Far East Gippsland, Draft Policy No. W-21, November 1981.

ESD Working Group, Mining, AGPS, Canberra, 1991.

ESD Working Group, Intersectoral Issues Report, AGPS, Canberra, 1992.

Federal Environment Assessment Review Office (FEARO), Canada, Oldman River Dam, Report of the Environmental Assessment Panel, FEARO, Quebec, May 1992.

Feschbach, Murray and Alfred Friendly Jr., Ecocide in the USSR.  Health and Nature Under Siege, Aurum Press, London, 1992.

Flood, Josephine, Archaeology of the Dreamtime, Angus and Robertson, Pymble, 1983.

Fowler, R.J., Environmental Impact Assessment, Planning and Pollution Measurement in Australia, AGPS, Canberra, 1982.

Fowler, R.J., Proposal for a Federal Environment Protection Agency, [A report prepared for The Australian Conservation Foundation and Greenpeace Australia Ltd], January 1991.

Greiner, N., The New Environmentalism:  A Conservative Perspective, Sydney, NSW government, 22 April 1990.

Hawke, Robert J., Our Country, Our Future -- Statement on the Environment, AGPS, Canberra, 1989.

House of Representatives Standing Committee on Environment and Conservation, Environmental Protection, Adequacy of Legislative and Administrative Arrangements, AGPS, Canberra, October 1979.

Howard, Colin, "The UNCED Conference and the External Affairs Power", Backgrounder, No. 9, 1 May 1992.

Industry Commission, Interim Report on Paper Recycling, Report No. 2, AGPS, Canberra, 1990.

Industry Commission, Inquiry Into the Costs and Benefits of Reducing Greenhouse Gas Emissions, Report No 15, AGPS, Canberra, 1991.

InterGovernmental Agreement on the Environment, May 1992.

Intergovernmental ESD Steering Committee, Compendium of Ecologically Sustainable Development Recommendations, R.M. Lansdowne, Canberra, 1992.

Johnson, Ken A., Andrew A. Burbidge and N L McKenzie.  "Australian Macropodoidea:  Status, causes of decline and future research and management" in G. Grigg, P. Jarman and I. Humel (eds), Kangaroos, Wallabies and Rat Kangaroos, Surrey Beatty and Sons, NSW, 1984, pages 641-657.

Johnson, Stanley P., The Earth Summit -- The United Nations Conference on Environment and Development (UNCED), Graham & Trotman/Martinus Nijhoff, London, 1993.

McPhail, I., The Role of CEPA and NEPA -- Towards a National Approach to Environmental Protection in Australia", Australian Environmental Law News, No. 2/1992, pages 66-69.

McPhail, I., "Overview of CEPA", CEPA Achievement through Cooperation Conference, Canberra, 26-27 August 1992.

Murray, Peter, "The Pleistocene Megafauna of Australia", Monash University Publishing, 1991.

National Conservation Strategy, AGPS, Canberra, 1983.

National Greenhouse Advisory Committee, Grappling with Greenhouse:  Understanding the science of climate change, DASET, Canberra, 1992.

National Greenhouse Response Strategy, AGPS, Canberra, December 1992.

National Strategy for Ecologically Sustainable Development, AGPS, Canberra, December 1992.

National Strategy for the Conservation of Australia's Biological Diversity, a draft for public comment, DASET, Canberra, 1992.

O'Brien, Brian J., Postponing Greenhouse:  Climate Change -- Facts, Issues and Policies in 1990, Eco Ethics, Perth, 1990.

O'Brien, Brian J., "Seven Scientific Flaws Shrouding the Toronto 20% Target", Parts 1 & 2, Business Council Bulletin, May and June 1991.

O'Brien, Brian J., "Response to the CSIRO", in Business Council Bulletin, June 1991.

O'Brien, Brian J., The Functions and Purposes of Environmental Assessments, Stage 1 Report to ANZEC Project 90/14, Brian J. O'Brien & Associates Pty Ltd., Perth, 1991.

O'Brien, Brian J., Revitalising Environmental Assessments.  (In preparation).  1993.

Pompili, Michael J. et al., Ohio Metropolitan Area Cost Report for Environmental Compliance, City of Columbus, Columbus, September 1992.

Resource Assessment Commission, Forest and Timber Inquiry Final Report, AGPS, Canberra, March 1992.

Robertson, Tim and Mark Anderson, "The Chaelundi Aftermath", 11th National Environmental Law Conference, Perth, September 1992.

Search, [Special Issue on Environmental Impact], June 1976.

Senate Standing Committee on Industry, Science and Technology.  Rescue the Future:  Reducing the impact of the greenhouse effect, AGPS, Canberra, 1991.

Viscusi, W. Kip, "Risk perceptions in Regulation, Tort Liability and the Market", Regulation, Fall 1991, Cato Institute, Washington DC.

WCED, Our Common Future, [The Brundtland Report], Oxford University Press, Oxford, 1987.

Wildavsky, A., Trial Without Error:  Anticipation vs Resilience as Strategies for Risk Reduction, CIS, Sydney, 1985.

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APPENDIX 1:  NATIONAL STANDARDS

1 GENERAL

National standards involve two strings of data.  The first is one of straightforward collation of data, or as the IGAE puts it in Schedule 1, "comprehensive directories of natural resource and environmental spatial datasets".  That can be presumed to proceed in an archival manner, indefinitely.  Its actual value to the community will depend on both the quality of the inputs and the rigour of the analyses;  but in a thinly-populated, resource-dependent, young and growing country, its potential value is immense.  A State of the Environment report is of this nature.  Schedule 1 and Schedule 2 of the IGAE provide valuable opportunities for agencies such as the Australian Land Information Council and ERIN, the Environmental Resources Information Network.  If such mechanisms are adequately resourced, and operated with intellectual rigour free of zealotry, they can be immensely valuable to the environment and the economy.

But the second string involves judgements about data, leading to the setting of "standards".  This is the area of concern to regulators and industry.  And it is fraught with difficulties.  Indeed, many of the reasons for questioning the value of "standards" are already reflected in the various options and legalistic escape clauses of Schedule 4 of the IGAE.  Thus the NEPA "may establish measures" (Schedule 4, Section 5 of the IGAE), "but will consider the most effective means" to achieve the required national environmental outcomes (Schedule 4, Section 6) and "will also take into account existing intergovernmental measures and mechanisms" in relation to such (Schedule 4, Section 6).

As Clause 19 of Schedule 4 of the IGAE states, "more stringent measures" can still be applied by the Commonwealth or a State, provided they prevailed when the NEPA is established.  And hence there is a real possibility that the "national" standards may become the lowest common denominator of existing standards.  The basement standard, of course, will be that which prevents unacceptable danger to human health, but even there, probability issues of hazard and risk may obfuscate sharp criteria.

Uniform national standards for the environmental diversity that so strongly characterises Australia may involve standards that are excessive in some areas and too low in others.

History tells us that the process of setting standards in environmental issues can become just another preoccupation with processes.  The problem can be categorised into confusion:  the IGAE distinguishes between standards and goals, and guidelines and protocols (see discussion and definitions in Section 3.4 above.)

Thus, few will question that water quality criteria must be divided into criteria for certain categories of water use.  The standards for swimming water are clearly not the same as for drinking water, depending -- one supposes -- on one's skill and enthusiasm for swimming.  The standards for waters in which you boat are coarser again, depending -- one supposes -- on one's propensity to fall overboard.  The standards for heavy metals for water in which swim fish that may be eaten may not be quite as severe as those in which shell-fish grow.  Standards for irrigation water, or industrial cooling water, or simply lakes for the looking at, or swamps for waterfowl, may again be different.

And so a hierarchy of standards develops.  Often it is rationalised or categorised by means of specifying what beneficial use is being protected in the standard-setting exercise, and thus immediately the presumption may be made, or even regulated, that current use is best use.  And, most important, a value judgement is made, not an objective scientific number listed.  The National Strategy for ESD acknowledges such problems:  "the appropriateness of some policies and progress on implementation will vary between regions". ⁽¹⁰⁴⁾  Thus, while some industries may want uniformity, the agreements may not provide it.  In any event, as discussed above, industry wants consistency not necessarily uniformity.  And it wants reality not zealotry.

In the national guidelines on water quality, issued by the ANZECC in November 1992, it was recognised that not all the guidelines are being met at present in Australia.  It was also recognised that some could not be met without disproportionate expense.

As can be imagined, categorisations of standards (mandatory), goals and guidelines can keep many people occupied, in research and evaluation, and in reporting and regulating.  A State can develop standards for regions or sub-regions, such as the Victorian EPA's Draft Policy on the Waters of Far East Gippsland. ⁽¹⁰⁵⁾  It needs no great imagination to predict potential weaknesses in such processes.  But clearly some such work is vitally important for human and environmental health.  The imperfections of existing systems and the complexity of environmental processes simply have to be resolved, if Australia is to retain a high quality of life and environment.

Will the notion of the CEPA/NEPA somehow improve the present imperfect and varied array of various standards around Australia?  Conceivably, the CEPA could assist by making available some examples and data bases of standards, so that neophyte standard-setters could browse and borrow or adapt.  It could collect international data and establish a sound international network to minimise unnecessary Australian duplication of efforts.

But should a national body attempt to screen such data bases or comment on particular applicabilities, when one considers the vast array of local and regional environments in this vast country?  How realistically can anyone know the local intricacies better than the locals?

Obviously a national body could bring expertise to issues, and could focus attention on critically important issues.  It might filter priorities, and it might promote the basement-level standards that must be set to minimise threats to human health.  It could give advice on the latest international expert opinion on lead levels in blood, for example, and whether the old level of 25 micrograms per decilitre is still acceptable or whether it should be reduced to 10.  But realistically, can it do much more, and can it do so cost effectively?

The IGAE is alert to such questions.  The proposed standards to be set by the NEPA are to be published in draft form.  With the draft is to be an assessment of the social and economic impacts of the proposed standard.  Whether the CEPA does this or not is a matter for the CEPA.

Industries understandably demand some assurances that standards they must meet by regulation, or standards they should seek by self-regulation, have some credibility and consistency.  They do not want their competitiveness, local or international, changed by whimsy.  The community in turn does not want to learn, by way of the Reader's Digest or local conservation groups, that their local environment is being abused more than another's.

This paper cannot do more than suggest that expectations cannot be met that the CEPA will somehow magically standardise environmental requirements comprehensively.  It may be able to target key areas of priorities, and key health standards, but ultimately the sheer logistics and the sheer variety of Australian environments demand local solutions, of State or smaller dimensions of control.

One might well ask why there should be uniformity of environmental controls over, say, Victoria and WA when their very environments are so alien to each other.  Different climates and cultures, soils and geology, water resources and industries, sunshine and rain, fauna and flora, transportation and recreation and even their very heritages are so different that no IGAE can homogenise them.  The geological accidents that kept this continent as an entity in the great Gondwana schisms did not confer environmental uniformity on Australia, merely commonality of geographic and ecological isolation.

Environmental diversity is relevant to the very methodologies of setting standards, which cannot be explored here.  Should one be concerned at the environmental impacts, or the ambient levels, or the emission ("end of pipe") concentrations?

One is forced to come back to the point made previously (Section 6 above), that human health may become the best common arbiter.  But even human health has vast and uncertain definition.  The level of tolerable risk is a subjective and community number, not a scientific one.  In the real world, standards may not meet all expectations.

There is the separate issue of States' rights, in considering the concept of the NEPA's setting uniform national standards by a two-thirds majority.

In connection with the idea of uniform national standards, there are arguments for and against, as discussed briefly here.

But in connection with the idea of environmental priorities, few could quarrel with the right of each government to decide which environmental issues have priority in allocation of limited human and fiscal resources.  The larger States of Queensland and Western Australia, resource-rich but with vast demands on infrastructure for remote regional areas, may have priorities very different from those of the south-eastern States.

The possibility of the NEPA's requiring Queensland and Western Australia to impose uniform standards in air, say, or water, may have disproportionate impacts on those States, and not be among their most urgent priorities.  On this ground alone, one must question the desirability of the NEPA.  It does not appear to have been addressed in the literature.

No attempt is made here to analyse whether the NEPA has a close precedent in other fields in Australia.  That would require immersion in the draft legislation.

But it may be informative to mention briefly the National Food Authority (NFA), so recently created (Commonwealth Act No 118 of 1991).  It sets national standards in such matters as residues in specified foods of the herbicide Thifensulfuron.  The NFA can be given directions by the (Commonwealth) Minister, subject to his or her consultation with the Council of Commonwealth, State and Territory Ministers established in 1986.  The NFA prepares draft standards and makes recommendations to the Council.

To the extent that any comparison is meaningful, a statutory CEPA rather than a statutory NEPA could fulfil comparable functions in environmental issues.

But one is still left with the fact that uniformity of food standards is one thing, uniformity of environmental standards not dominated by human health, quite another.

2 LOWEST COMMON DENOMINATORS

In the setting of national standards for air, water and the physical environment generally, the IGAE recognises that a party (a government) may wish to either maintain or invoke "more stringent standards" than those set by the NEPA. ⁽¹⁰⁶⁾  The agreement does not give equivalent authority to invoke less stringent measures, even for specific circumstances or environments.  Politically this is understandable.

In the real world, however, such environmental piety is both unrealistic and unforgiving.  Australia in 1992 has a mixture of old and new industries, with different levels of environmental godliness.  In some areas, pollution levels may already be high.

Under such circumstances, and bearing in mind the extensive logistics and administrative burdens, it is conceivable that the "national standards" set by the NEPA, or otherwise agreed, may become the lowest common denominator. ⁽¹⁰⁷⁾  The standards may be neither what new industry can meet already nor what it is willing to aspire to achieve, given the freedom to do so.

Conversely, one can look to the situation in the USA, where the Federal Clean Air Act 1990 set ambient levels of air quality that may be impossible for some States to meet.  So too, Australian governments may agree on guidelines which cannot be met realistically, as with some water quality figures in November 1992.  That is the purpose of "guidelines" as distinct from "standards" which are mandatory.

Overhanging such national standards, the IGAE also commits the parties to a uniform hierarchy of offences. ⁽¹⁰⁸⁾

The great variability in the Australian natural and physical environment, and the variability in physical dispersion of pollution, complicate the issue of national standards.  There is one basement standard set by human health, nationwide.

It has been claimed (see Section 4.4 above) that the call for uniform national standards comes from largely industry, particularly manufacturing industry, concerned about unfair competitive advantages which may become available to others under various governments, or about "pollution havens", or about additional costs through different standards that must be met in different jurisdictions.  In fact, the Business Council of Australia called for consistency of standards, not necessarily uniformity.

The Agreements of '92, by themselves, do not ensure either such consistency or uniformity.  Whether they improve the chance of consistency or uniformity remains to be seen.

Conversely, the achievement of uniform standards should not be cited as a justification for the Agreements of '92, nor as a claim that governments have made such Agreements in response to industry demands.  The Agreements are first and foremost political documents for governments, not action plans for industry or the creation of wealth to finance the desired quality of life.  The costs of the Agreements are unknown.  No industry could survive if it signed Agreements in such ignorance.

Much of the problem would seem to be caused by concentration on standards, the mandatory measures.  One must ask whether such problems would be eased if governments, perhaps through the CEPA, gave more attention to guidelines, and industry was permitted to attain or better those guidelines in processes of self-regulation.

3 COSTS OF STANDARDS AND ENVIRONMENTAL REGULATIONS

I know of no analysis of the costs and benefits of Australian environmental regulatory controls other than in a few localised areas, such as the Industry Commission Inquiry into Paper Recycling or the Resource Assessment Commission Forest and Timber Inquiry. ⁽¹⁰⁹⁾  Indeed the vast dimensions of those two focused analyses, taking years in time, millions in dollars and months in forgone productivity by witnesses, indicate the enormity, and the impracticality, of umbrella standardisation of Australian environments.

In the USA the estimated costs of all regulations in 1991 was $542 billion -- the fastest growing component being environmental regulations at a cost of $151 billion, with forecast future growth of more than 50 per cent by the year 2000. ⁽¹¹⁰⁾

The cost of compliance with environmental regulations is too complex to pursue here in detail.  Costs can be incurred by governments and local authorities in expenditures such as achieving clean water and managing waste waters, or removing and treating or recycling rubbish and solid waste.  There are administrative, paperwork costs incurred by the private sector in complying with requirements for licences, work approvals, environmental audits and approval renewals.  And in some cases, compliance may require new methodologies or new equipment to meet more rigorous standards.

Because local government is responsible for much of the treatment of community waste, which costs it may pass on directly to the community itself in local rates and charges, it is useful to note a recent "revolution" by some local governments in the USA.

Nine participating cities in Ohio estimated compliance costs (1992 to 2001) of about $3 billion for 14 environmental regulations or issues.  Columbus, Ohio, with a budget of $591 million, spent $62 million in environmental compliance.  But it is the growth in costs, to about $107 million in 1995 that sparked recent local reviews. ⁽¹¹¹⁾

The Ohio group considered only direct costs from 14 specific environmental regulations or general environmental rules.  These included the Clean Water Act and the Clean Air Act, and such items as $200 per year per Akron household for the next twenty years to comply with the "Combined Sewer Overflow section of the Clean Water Act."  Compliance with all requirements of this Act amounted to about 90 per cent of total costs, with "land" costs next at 6.9 per cent.

The Ohio report gives an excellent example of trickle-down environmental regulations.  And the local governments stressed the need for regulations to be in the real world and firmly based on credible science.  They cited the review of the scientific base of the US EPA, reported in March 1992 under the title Safeguarding the Future:  Credible Science, Credible Decisions.

The reality is that a desired decrease in risk must be based on credible science.  The precautionary principle, if carried too far, can escalate costs for a negligible reduction in risk.

The Association of California Water Agencies found that costs for meeting the radon standard in California alone would be $3.7 billion, and national costs some $12 billion to $20 billion, all to reduce only 1 per cent of the public radon exposure.

It is such real-world numbers, and the very concept of risk as a subjective, not an absolute number, that can be neglected in a scurry for setting standards.  The financial burden of new standards is seldom known before they are imposed.

In this matter, the intended provisions of cost impacts of draft standards of the NEPA is a necessary step.

4 DISCUSSION OF STANDARDS

The problem of physical pollution can be looked at from two kinds of approach:  the setting of standards or the precautionary approach.

If the physics, chemistry, biological and health aspects are reasonably identifiable and/or have a tradition, for example, sulphur dioxide in air, sulphuric acid in water, then a set of environmental regulations can be stated, with standards sufficiently high or safe that the probability of harm is either below some threshold, for example, one chance in a million, or else the concentration or amount of the particular pollutant is otherwise "safe" for a designated use.

One difficulty in setting standards is the immensity of the task.  The World Commission on Environment and Development estimated that some 70,000 to 80,000 chemicals were on the market in 1987, with 1,000 to 2,000 more entering each year, and with more than 500 chemicals and chemical products banned altogether or having their uses severely restricted in the country of origin. ⁽¹¹²⁾

There are, of course, other difficulties, such as synergistic effects, delayed effects, exposures etc.  But usually some standards can be set, or trialled.

If, however, the actual science of an issue is little known, the philosophy of the precautionary principle is often advocated (see Section 3.4.4 above).  Often in practice the precautionary principle is used so that, in situations where the risk is actually not quantified or known, governments avoid the very possibility of creating any risk at all.  So no action proceeds, and without a wealth-creating project, no research is financed to assess the reality or magnitude of the risk.  So development is stymied.

There has to be a new examination of the whole concept of risk and hazard.  The present views, and the extreme forms of the precautionary principle, are simply incompatible with sustained development in the real world.  They are more suitable for a society sinking into dull oblivion.

There has to be a greater community awareness that standards are judgemental, and vary according to the risk that society is willing to accept.  Furthermore, a risk costed out of reality may well invite other risks originally unforeseen.

One anecdotal example is a regulation that babies in mother's arms in airlines seats in the USA risked 1 death per year, so a decision was made to insist on a separate seat.  Market research showed that the added cost would be such that about 25 per cent of families would choose to travel by car.  The higher risk of car travel led to predictions of 6 fatalities per year rather than the single airline death.  Who gained from the regulation?

Analysis of risks and setting of standards is technically complex.  If the whole philosophy of a country is to adopt a precautionary principle, then there is a bias toward trying to achieve zero risk, and hence toward pushing for more rigorous standards.

As an aside, there is also a curious, negative ethos attached to most current discussions of environmental risk.  It is analogous to the two views of a glass containing water.  The optimist says it is half-full while the pessimist says it is half-empty.

In the early space programme one talked in terms of the probability of success as being, say, 99 in 100 (that is, 0.99), rather than the risk of failure being 1 chance in 100.  But in current discussions of environmental risk, it is always the risk of failure that is discussed.

Let it be clear that this article is not a plea for higher risk or for poorer standards.  It is simply a plea for community recognition that standards are rarely absolute.  They usually contain a subjective judgement of what level of risk is acceptable.  And that subjectivity will be biased towards tighter and tighter standards, at higher costs, so long as the concept of a precautionary principle influences the subjectivity of standard setters to seek zero risk, or minimum blame.

If a country can afford to apply the precautionary principle, as the nine First Ministers agreed, then, fine.  But since no costs are ever quoted, one must assume they did so in ignorance of the economic cost to the nation.

These notes on standards have been lengthy because the issue of "standards" has been given as the rationale for the NEPA.  The notes are sufficient to show that there are weighty issues of policy to be resolved before the NEPA could proceed.

The argument for uniform national environmental standards is fragile (see Section 4.4 above).  Yet it has been the principal driving force toward a Federal environmental agency.

In turn, much of the rationale for the NEPA is the same call, for uniform, binding national standards, even to having a uniform hierarchy of penalties for offences. ⁽¹¹³⁾

So the argument for the NEPA is unproven.  However, there may be merit in such aspects as uniform guidelines and goals, as distinct from mandatory standards.  Yet the present, non-statutory Ministerial Council, the ANZECC, is perfectly capable of developing such guidelines, and does not need a tenth, and supreme, environmental agency.

Thus the issue of national standards can best be pursued by present agencies, led by the CEPA as an honest broker.

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APPENDIX 2:  ILLUSTRATIVE STATE-FEDERAL ISSUES IN CANADA

It is impossible in any short review even to begin to analyse the Canadian issues of Federal versus Provincial jurisdiction and determine their possible applicability to the Australian NEPA issues.  The variations between provinces, the fact that environmental legislation is changing in those provinces just as it is in Australia, and the sheer dynamics of political considerations, make any brief analysis or simplification of the Canadian issues too simplistic.  Any close comparison with the Australian scenarios would be even more simplistic.  The major part played by First People in Canadian legal and political issues is also more sophisticated than in Australia, as yet.  However, two examples of comparisons follow, because although they highlight differences from Australia, they also carry broad lessons.

The first example concerns national parks.  The Federal Agency, Environment Canada, had a workforce in mid-1992 of about 11,000.  Approximately 40 per cent are involved in national parks, which in Canada are quite distinct from State or regional parks.  One could foresee that the Australian National Parks and Wildlife Service might seek to use the NEPA process to try to establish more direct involvement in what are presently called "National Parks" in Australia, but which are so designated by individual State and Territory governments.  As yet, conservation is not within the scope of the NEPA.

Indeed, none of the Agreements of '92 pays much attention to National Parks, other than to note that "The parties agree that the management of parks and protected areas is largely a function of the States." ⁽¹¹⁴⁾  The Australian report to the UNCED, however, comments that such

a division of responsibility has tended to inhibit adoption of a national approach in the past, but in the last two decades it has been increasingly recognised that coordination and harmonisation of policies ... is beneficial. ... ⁽¹¹⁵⁾

As commented previously, the present Federal bureaucratic dichotomy between conservation and environment is a massive time-bomb in Australia's environmental strategies, not only on national parks.  It ensures, at best, confusion, and at worst, at some unknown time, moves to develop a whole new set of destabilising agreements on a national scale.  Proposals for a national biodiversity strategy or ratification of the Convention on Biological Diversity, must be assessed with the dichotomy, and the NEPA, in mind.

The second Canadian example concerns Provincial and Federal environmental impact assessments.  In March 1992 the Canadian House of Commons passed what is called "Bill C-13", an Act to establish a federal environmental assessment process.  This arose out of the perceived need to reform the Environmental Assessment and Review Process (EARP) whose guidelines were issued by Order-in-Council in 1984.  Those, in turn, had grown from the use of environmental assessment by the Government of Canada since 1974 to predict the potential environmental effects of proposals requiring a federal government decision.  Bill C-13 as legislation faced a paradoxical problem because of a Federal Court ruling about the Oldman River Dam.

To those in Australia who have watched progressive federal involvement in such environmental issues as Fraser Island sand mining, the Franklin Dam, the Wesley Vale pulp mill and the Coronation Hill mine, the Canadian example of the Oldman Dam will be either refreshing or worrying -- depending on one's view.  The four Australian examples all resulted in no development occurring.  In the case of the Oldman Dam, the dam was built before the Canadian Federal Government became involved, at the direction of the Federal Court of Appeal rather than because of its desire to intervene.  From 1975 to 1984 the government of Alberta carried out public hearings and an environmental assessment on various aspects of proposals to build a dam. ⁽¹¹⁶⁾  The Federal government processes were not invoked.

The $350 million dam was built in southern Alberta after environmental studies were carried out under Alberta procedures.  Although there were complaints four to five years before that Ottawa had not conducted a proper environmental review prior to construction beginning, Ottawa had said that it did not need one.  The Alberta government complained that federal environmental assessment would be akin to Ottawa meddling in provincial affairs.  In March 1990, however, the Canadian judiciary, the Federal Court of Appeal, ruled that before a navigable rivers licence could be granted by the Federal government it would have to conduct an environmental review.  The Federal Ministers of Transport and of Fisheries and Oceans had to comply with the Federal EIA process and "revisit" the project.

The resulting report of the Canadian Independent Environmental Review Panel was received in May 1992.  It had as its primary recommendation that the dam be decommissioned "by opening the low level diversion tunnels to allow unimpeded flow of the river".  The environment minister, Jean Charest, rejected the recommendation.  His position was different from that of his counterparts in Australia facing the Franklin proposal, because the Oldman Dam exists.  At its peak in 1991 the dam contained 300 million cubic metres of water.  (To convey the size in other terms, such a volume is about 150 per cent of the total water used by Perth that year.)  The Canadian Panel also gave the Minister other recommendations as alternatives to the preferred decommissioning.  The present situation is unclear, but the dam certainly exists.

The unwillingness of both Provincial and Federal governments to cooperate in the recent process is clear in the subsequent report. ⁽¹¹⁷⁾  The government of Alberta took action unsuccessfully in both the Supreme and Federal Courts to prevent the new public review.  That government did not participate in the review as the project proponent, although it had built the dam.  As to the Federal government, the review panel remarked that federal agencies were "significantly less accommodating than in other reviews."  There was a significant "lack of commitment".

There are many lessons for Australia from the Canadian experience with the Oldman River Dam project, but it is unclear whether all parties are aware of them.

How the Australian judiciary would seek to couple the Agreements of '92 with the real world is a matter which presumably awaits specific projects and challenges.  But uncertainty is certainly one present outcome.  The growing popularity of giving legal standing to members of the general community is another factor that cannot be ignored. ⁽¹¹⁸⁾

---

ENDNOTES

103.  D. Buckingham, pers. comm.

104.  NSESD, page 10.

105.  EPA of Victoria, Draft Environmental Protection Policy:  The Waters of Far East Gippsland.

106.  IGAE, Sections 19 and 20.

107.  Curiously, the Commonwealth Position Paper argued (page 19) that it was "very important" to have a simple majority vote (in the NEPA) to avoid setting the lowest common denominator standards.

108.  IGAE, Schedule 4, Section 18.

109.  Industry Commission, Interim Report on Paper Recycling;  Resource Assessment Commission, Forest and Timber Inquiry Final Report.

110.  Abelson, "Regulatory Costs".

111.  Pompili el al., Ohio Metropolitan Area Cost Report for Environmental Compliance.

112.  WCED, Our Common Future.

113.  IGAE, Schedule 4, Section 18.

114.  IGAE, Paragraph 12 of Schedule 9.

115.  Australian National Report to UNCED, page 105.

116.  FEARO, Oldman River Dam.

117.  Ibid.

118.  See Tim Robertson and Mark Anderson, "The Chaelundi Aftermath", for an analysis of the forest conflict in northern NSW.

Concluding Comments

CHAPTER SIX

The Agreements of '92 made it a momentous year in broadening, by government consensus, the involvement of the Commonwealth government and intervention by governments generally in the whole area of the physical environment.  The Australian environment was nationalised.

The Agreements of '92 are wide ranging.  While nominally being just environmental agreements, in fact they potentially impinge on all future aspects of Australian life, social, industrial and economic.  They cover not only projects but policies and programmes.  They are both eclectic for conservation groups and ubiquitous for industry.  They are pervasive through virtually all areas of government, including transport, energy and urban planning, if the 384 commitments by the nine governments in the NSESD are taken seriously.

The Agreements are omnivorous in their appetite and global in their targeting of special interest groups.  They are a recipe for hundreds of government processes and interventions, and they rarely present visions for individual actions.

The ESD processes of actual consultation and sharing or exchange of views were in themselves enough to lift the broad generational awareness and appreciation of the concept of sustainable development.  The concept was implanted as one of the facets of Australian life.  To seek to go further and enshrine it in intergovernmental agreements is where the imbalance became intolerable.

If one takes the Agreements at face value -- and there are many sincere Australians who do so -- then they demonstrate a naïveté, an environmental idealism and zealotry, that is utterly inappropriate in this world of international competitiveness.  They are full of processes, not outcomes.  They contain no costings.  They contain no specifics and no alternative options, except those that are an inadvertent consequence of the uncertainties of what the various statements actually mean.  Unbalanced in their treatment of sustainable development, they concentrate on environmental sustainability and neglect the realities of development as the engine of such sustainability for future generations.

Yet, concealed in their verbosity, there are a few diamonds of hard truth for the future of Australian society, and a few kernels of truth that should be fostered to maturity.

This paper is biased because there is no opportunity to filter through the vast bulk of the Agreements and discuss the real meanings of sustainable development, intergenerational equity and ecological ethics.  The major task of this paper is simply to present the fact that in 1992 the nine governments in Australia made massive and wide-ranging environmental commitments on our behalf.  The diamonds and the kernels will wait, but clarification and restoration of balance cannot.

An efficient, co-operative and small CEPA, intent on results rather than power or processes, could conceivably cut its way through the mazes of interwoven bureaucracies.  Much depends on the CEPA, and its personnel, and whether the States are willing to forgo the NEPA safety net for a time, trusting the goodwill of the CEPA.  It is early days for the CEPA, and it deserves, possibly, a new start without historical baggage.

One could perhaps be optimistic, but only if one forgets recent history, not limited to:

• the rigidity of greenhouse policy against new scientific findings of less alarming climate scenarios;
• the impression of a loose cannon presented by the Commonwealth legislation on endangered species;  and
• the increase in both volume and uncertainty of government intervention driven largely by the Commonwealth.

Against this background, the NSESD aims at "creating a partnership between governments, the corporate world and community groups that have a particular interest in, or capacity to contribute to ESD".  That is a noble aim, unmet by the NSESD.

One tantalising possibility peeks through, but is unlikely for several years or more.  Community concern for The Environment may cool to the point where concern for the human environment and the human condition becomes more dominant.  The pre-eminent importance of humans, as recognised by Brundtland, may be accepted amidst concern for The Environment.  The newly rediscovered importance of human health in environmental issues may be a pointer.  Another may be that the National Health and Medical Research Council was only an advisory body from its formation in 1936, but it became a statutory body in 1992.  Recently there seems to be more concern about pollution aspects, the so-called "brown" rather than "green" issues.  National standards for human health are an acceptable concept, while national standards for greatly diverse environments are not.  Increasing populations are a dynamic way to focus attention on human issues.

If the enhanced environmental skills and the improved environmental ethics of the community at large can be proven to have overtaken the historical deficiencies, and can be relied upon to outpace increases in demographic and other pressures on the environment, then perhaps the priority of the human condition will be restored.  Governments may come to accept that care for the environment is best a personal, private enterprise matter, although repair of old damage may require government intervention.

Industry may be able to promote the efficiency of self-regulation if it can gain the confidence of the community about its environmental morality and literacy.  The community may need to be content for a time that the year of change is now past.  It is time for stabilisation and considered assessment.

Overshadowing such a development is the fact that the 1980s generation of schoolchildren has been indoctrinated with the doom and gloom of greenhouse, acid rain, ozone deficiencies and disappearing species.  They fear things that go bump in the night more than do the children of less selfish generations.  They are averse to either risk or action.  Industry and governments have yet to appreciate the impacts that will occur when those schoolchildren join the workforce and government agencies.  Dependence on government is a difficult addiction to break.

I suggest that the Agreements of '92 do not accurately reflect Australian community opinions about the environment, in 1993.  Indeed, they may not ever have reflected such opinions, even in the conservation enthusiasms prior to the Rio Conference.  They possibly would have had maximum support in 1990, perhaps in the afterglow of the Federal election of that year.

Judging from the votes and the media coverage of environmental issues prior to the latest Western Australian and Federal elections, it appears that in 1993 community emotional support for vigorous environmentalism is relatively low.  This is no doubt related in part to the economic downturn, but it may also be caused by the previous excesses of political environmentalism.  There can be little doubt that in a few years, particularly if the economy is growing strongly, there will be a resurgence.  As discussed previously, voters and workers will then include those who as schoolchildren were nurtured on doom and gloom stories, and environmental disinformation.

I therefore suggest that there is now effectively a two-year window of opportunity for responsible developments to occur, provided of course they can find markets.  This window, I suggest, will be open no later than the next Federal election, probably closing partially a year-or-so beforehand.

If this perception of public attitudes is correct -- and I have no hard data about my impressions -- then there will be a real paradox.  There will be opportunities in 1993-94 for development with few environmental obstacles raised by the public, but with new environmental obstacles raised by governments through the Agreements of '92.

There will, no doubt, be more attempts to "fast-track" projects.  But the international requirements for reporting and auditing will need to be factored in, as never before.  The legal, foreign policy, and investment implications are for others to discuss.

The formalisation by Agreements of '92 has given political respectability to several former war-cries of concerned conservationists.  The economic crises in Australia in 1992 had little apparent impact on the imbalance in the Agreements away from development to favour conservation.

Never before have Australian creators of real wealth faced such a heavy and burdensome cobweb of governments and agencies reluctant to endorse or approve development or keen to impose regulations and conditions should the developer persist.  The burden may well prove too heavy for many smaller developers to cope, while larger developers may simply move more investments overseas.  Recapturing investor confidence may be a truly intergenerational heritage.

Responsible and increasingly skilled developers are confronted with more government processes, and environmental constraints.  The Agreements of '92 portend more uncertainties, not fewer.

The Agreements have provided the opportunity for Australia to display high environmental morality internationally, but they contain elements of self-destruction for our developing nation.  The Agreements are flawed because:

• they demand additional and enlarged government intervention toward a planned environment;
• they are unbalanced;
• they are uncosted;
• they display an ethos of inaction and a nihilist version of the precautionary principle;
• they massively expand uncertainties within government policies and processes;
• they miss opportunities for dynamic and visionary reappraisal of an environmentally-literate and skilled Australia and are un-Australian;  and
• the two National Strategies lack elementary bases of credibility.

These Agreements must therefore be withdrawn, rewritten or balanced as soon as possible with a compensating set of agreements to counter or revoke such flaws.

Realistically, they cannot be withdrawn.  Both internal politics and international reporting commitments preclude such an action.  However, some key elements, for example, the NEPA, could be delayed provided an overview plan of rescheduling action is followed.

Practically, Australia could not afford continued delays and uncertainties while the complete Agreements are rewritten.  And relevant special interest groups and the community, are wearied by gabfests, and cannot afford them.  So the existing Agreements must be clarified, and some of their structural outcomes tested.

Consequently the environmental Agreements of '92 must be balanced with a development agreement based on a national vision.  But again, it will require initiative at the Commonwealth level to drive such a new agreement, with intensive support from industry and the silent majority.  Industry will require more fire in its belly than it has shown to date.  The silent majority will need to review their attitudes to comfort, selfishness and complacency, and be more rigorous in analysis of conservation issues.  Any developmental agreements must reduce the role of government and enable investment and the creation of wealth.

There is an urgent need to develop visions for environmentally responsible development with approval for Australia having a development ethos as well as an environmental ethos.  There is an urgent need to be proud of responsible pioneering, which is compatible with and indeed drives sustainable development.  There is a need to recognise that self-regulation is more efficient than regulation by government.

The nationalisation of the environment by the Agreements of '92 cannot be undone, even if the community wanted it.  But it can be harnessed and re-directed.

And, if I had a single Term of Reference for new agreements, it would be to develop an ethos that is unashamedly and selfishly Australian.  Future work must be tested against the simple criterion of relevance to Australia.

The call, "Think globally, act locally", should be reconsidered in the form of "Act globally, think Australian".

Australia has only about 0.3 per cent of the world's population yet possesses over 10 per cent of proven mineral resources and a land area of about 5 per cent of that on the planet.  Consequently, development of Australia and growth that is forceful are critically important to the world as well as to Australians.  The disproportionate natural richness of Australia makes it essential that national strategies and policies be subject to rigorous analysis of their relevance to Australia.

In discussions of biodiversity and preservation of endangered species, many of the arguments are essentially ethical or religious expressions, to the effect that Australians have a special responsibility to conserve them.

To an even greater extent, because the obligation is to both present and future generations of humans, Australians have a special responsibility to develop its rich resources.

The total environment of Australia has an extraordinarily rich heritage, uniquely favoured on the planet.  The country is rich:

• in its people;
• in its landscapes, geography and mineral resources;  and
• in its introduced species such as wheat and sheep;

just as much as it is rich

• in its endemic species of flora and fauna.

Yet the National Strategy for Ecologically Sustainable Development is dominated by the fourth component, the native flora and fauna.  People seem merely objects for social engineering.

It would be a matter for national shame, and result in an ever-increasing national debt and an ever-decreasing quality of life, if Australia managed its rich heritage with the imbalance written into Agreements of '92.

How sad it is that international and Australian investors should look at the Australian scene of environmental controls and be moved to write over this Great South Land, like medieval seamen poring over maps of a flat earth -- Here be Dragons.

Australia's National Stance on Environment

CHAPTER FIVE

5.1 CREEPING NATIONALISATION OF THE ENVIRONMENT

The increasing Commonwealth influence and control over regulation of the Australian environment was broadly legitimised by the Agreements of '92.  Tools of power, such as economic instruments, are not needed under the new agreements.  Nor, indeed, is the threat of the overriding use of the external affairs power, in one or more of the 40 or 50 treaties always needed since the IGAE.

By the InterGovernmental Agreement on the Environment (IGAE), and under the strategic imperatives of biodiversity, climate change and particularly sustainable development, the Commonwealth government is formally positioned to dominate environmental decision-making in Australia in the 1990s in a manner only dreamed of in the 1970s.

The actual instruments of licences and approvals will remain to be administered by State agencies, rather in the manner of outposts of the Empire.  But the ambience, the ethos, of administration will be that of the agreements and the precautionary principle.

A potent and pervasive force is the capability of Federal Ministers to impute dereliction of duty to those State governments who do not keep pace:

responsibilities and interests of the Commonwealth [include] facilitating the co-operative development of national environmental standards and guidelines as agreed in Schedules to this Agreement. ⁽⁹⁸⁾

This paper does not discuss the clearly important potential effect of nationalisation of the environment on other State-Federal activities -- in transport, mining, energy and finance, for example.  These have all been exposed to the winds of ESD, and the NSESD and the IGAE contain promises that changes will be made in the way they are administered.  Section 3.5.2 (above) gave an example of a commitment on CBD parking driven by greenhouse fears.

And looming as a potential cause of interruption to government approvals, or project developments, is the concerned citizen.  Third-party representations that policies, strategies and processes are not being met, will be happily assisted by the growing workforce of environmental lawyers.  Indeed, this appears as one of the great potential hazards of otherwise innocuous agreements, such as much of the Agreements of '92.  The hazard is that some people will understandably want to take them seriously, and take legal action to persuade others to do so.  Each Agreement is thus a new Pandora's box.  Governments should learn that the community is becoming more environmentally literate.  Network television is also a force for nationalisation, of fostering Sydney's interest in Shark Bay, and the like.

The majority of those public servants who draft such Agreements as those of '92 do so in good faith in furthering the policies of their respective governments.  Much effort is involved.  It would be as well if they were aware of the positions faced by their equivalents in both the government of Alberta and the Canadian Government in regard to third-party action on the Oldman River Dam in 1990-1992 (see Appendix 2).

5.2 RELEVANCE OF INTERNATIONAL COMPARISONS

If one tries to make a prediction about the efficiency or otherwise of the NEPA in Australia there are few other countries whose historical experience is either useful or comparable.  The CEPA Position Paper, in 12 pages of its Appendix 2, gives a survey of national environmental agencies in the European Community, Canada, Denmark, Germany, Japan, The Netherlands, New Zealand, Sweden, United Kingdom and the USA. ⁽⁹⁹⁾  It draws not a single conclusion from them.  A more professional analysis, which must be considered in conjunction with the thrust of his overall paper, is given by Fowler for the USA, Canada and the European Economic Community. ⁽¹⁰⁰⁾

The closest comparison may be with Canada.  Two examples are discussed in Appendix 2 to illustrate two points:

• in Canada, National Parks are quite distinct from State or regional parks, and are administered by some 4,000 personnel of the Federal agency, Environment Canada;  and
• the $350 million dam on Oldman River was built after an Alberta environmental impact assessment, but in 1992 the Federal Court of Appeal ruled that a Federal EIA was required.  The Federal EIA recommended that the dam be decommissioned, after the State tried to stop the process and Federal departments were uncooperative.

In Australia, the Agreements of '92 may encourage moves by the Commonwealth agency, ANP&WS, to gain control of major National Parks;  while the Oldman River Dam example may encourage proponents of new projects to seek both State and Commonwealth EIA approvals, regardless of legal need.

The success or otherwise of the evolution and formalisation of Commonwealth involvement in environmental management in Australia first through the ANZECC, then through the CEPA, and then perhaps through the NEPA and its enabling legislation and complementary legislation in each State and Territory, could rest largely on a few key individuals.  The processes must be an Australian decision, recognising Australia's constitution, cultural history, environments and existing government structures.

5.3 REALPOLITIK -- THE CEPA VERSUS THE NEPA

The 39-page InterGovernmental Agreement on Environment (IGAE) is variously regarded.  It is said to be a historic document, purporting to establish "the ground rules" for future dealings between Commonwealth, State, Territory and Local governments on the environment.  It replaces the various bilateral agreements between Commonwealth and State Ministers and Departments, circa 1977, which dealt mainly with EIAs, and which largely accredited State processes.  Such agreements were not sufficient to prevent intergovernmental conflicts on the EIA of the Wesley Vale paper mill.

The scope of the IGAE is far broader than these earlier agreements relating to EIAs.  The IGAE nationalises and nominally federalises Australian environmental interventions and controls by governments.  It combines statements of claims by the various stakeholders (Section 2) and a process of accommodation of interests.

For example, consultation by the Commonwealth prior to entering international agreements will have regard to this Agreement (Section 2.5.2).  The IGAE contains sections on defining Commonwealth interests (Section 2.5.3) and duplication of interests (Section 2.5.4).  But it is very much a blueprint for Commonwealth initiatives, and hence for the CEPA, with possible flow-on to the NEPA.  The IGAE sets out the basis for the proposed National Environment Protection Authority (Schedule 4).

There is no obvious role for the States in the actions of the CEPA.  There is perhaps no reason to doubt the goodwill and the intentions of Commonwealth consultation regarding the gradual and inevitable expansion of the CEPA.  But in the event of conflict, the CEPA is Commonwealth and responsible directly only to the Commonwealth Minister.  That is that.

Commonwealth instruments can be as fully enabled as may be, via such devices as the external affairs power and international conventions as wide-ranging as the Climate Convention and the Biodiversity Convention.  In the spirit of consultation and cooperation of the IGAE, it is generally expected that the Commonwealth will make pace-setting legislation and the States will enact complementary legislation.

Selfish politics can motivate a Commonwealth government as readily as it can a State government.  The endangered species legislation which was so controversial initially in 1992 has now been passed by Federal Parliament.  Processes of consultation leading to both a National Biological Diversity Strategy and a National Endangered Species Strategy appear to have been largely ignored in the rush to meet the perceived urgency of the Federal statute.  The repercussions of that Federal rush into these important and far-reaching strategies are not yet assessed, but it is understood that this Federal legislation is not regarded highly as a model.  Many governments had significant earlier statutes, or were reviewing the needs.

One might consider that the CEPA, the Convention on Climate Change and the National Greenhouse Response Strategy form a package that nationalises the physical environment, with the NEPA as El Supremo.

One might then speculate that a comparable package in the biological environment would be the Australian National Parks and Wildlife Service, the Convention on Biological Diversity, and a yet-to-be-made National Biological Diversity Strategy, with a yet-to-be-made biological clone of the NEPA as El Supremo.

One avenue for possible reassertion of State control might lie in the proposed NEPA.  Clearly the details depend on the enabling legislation, which is not yet available for perusal.  But conceptually, the two-thirds majority rule could lead to a gaggle of States seeking to exert control over a mooted Commonwealth action.

So the fascinating possibility might open up that, far from the proposed National Environment Protection Authority being a weapon for the Commonwealth bully to impose its environmental will wantonly on the beggarly States, the NEPA might actually be a potential protection against an intruding CEPA.

The realpolitik may be otherwise.  A NEPA which is serviced by a statutory Secretariat to the (Commonwealth) Chairman (which Secretariat draws its limited resources from wherever it can, such as the pools of existing talents in DASET and the CEPA, both of which report to the same Ministerial Chairman), would be heavily influenced by the Chairman.  Skills could be used in allocating priorities and agendas on a massive range of topics.  To put this into perspective, for many years the Commonwealth supplied the year-to-year secretariat to the Australian Environment Council, the nominal and informal predecessor of the NEPA, by means of one part-time officer drawn from full-time duties in DASET.  On the other hand, if the statutory Executive Office envisaged for the NEPA appointed and administered its staff, then there would undeniably be another layer of bureaucracy, a tenth environmental agency.  It is difficult to see how it would be justified in adding its own professional experts in, say, air and water pollution, to those in the CEPA, but it is difficult to see how it could be independent and national unless it did so.

Thus the only way that the NEPA could offer substantial environmental independence for the States and Territories would be if its Secretariat was located outside Canberra or with a Chinese wall of armour-plate against the CEPA or DASET intrusion.  The proposed Multi-Function Polis has been suggested in ambit claims.  Even then, and even with strong declarations of State independence in the enabling NEPA legislation, one cannot easily foresee any alternative to an ever-increasing expansion of Commonwealth intervention in environmental issues.

One saving grace could be the very range, variety and dynamics of environmental issues in Australia.  State and local involvement, administration and local decision-making are essential in the real world.  The issue is likely to be whether exercise of those powers is direct or by delegation of authority.  Already, conservation groups have suggested that anything short of direct, increased and centralised control will result in a lame duck" national agency. ⁽¹⁰¹⁾

Section 2.3.2 of the IGAE is an interesting assertion of States' rights, which seems at odds with the role of the NEPA:

Each State has responsibility for the policy, legislative and administrative framework within which living and non-living resources are managed within the State.

Yet the agreed power of the NEPA is that a two-thirds majority vote could force a minority State to follow NEPA policy and NEPA priority, rather than its own government's.

If the need for the NEPA is based on a hypothetical need for uniform national standards of air and water pollution, then that latter need has yet to be established, in matters other than human health.  As discussed earlier (Section 4.4 above) and later (Appendix 1), even if the need for uniform environmental standards was established, it is certain the different parts of the country would have different priorities.  The very notion of the NEPA and a two-thirds majority vote can tolerate no such differences.

All things considered, it is unsafe to proceed with the NEPA until the CEPA has established its own credibility, and tested the environmental and economic benefits of nationalisation of the environment.  The present agreement is for draft legislation for the NEPA to be presented to First Ministers before the end of April 1993. ⁽¹⁰²⁾  I suggest a deferral of at least a year, and a halt to the present moves to create the NEPA.

Specifically a deferral is recommended at least until the CEPA has demonstrated that its work has produced a significant and measurable outcome in increased industrial efficiency and improved international competitiveness, and more effective environmental protection (see Section 7 below).

One might even apply the precautionary principle (see Section 3.5 above) and say that until the nationalisation of the environment is fully known and has been proven to be beneficial, the NEPA is too great a risk, and should not proceed.

---

ENDNOTES

98.  IGAE, Section 2.2.1.

99.  CEPA.

100.  Fowler, Proposal for a Federal Environment Protection Agency.

101.  Fowler, ibid.

102.  IGAE, Schedule 4, Section 23.

Implications for Australia

CHAPTER FOUR

4.1 GENERAL

The Agreements of '92 might be regarded simply as signs of increased environmental maturity and responsibility on the part of the nine Australian governments.  Indeed, the NSESD represents a more sophisticated statement about conservation vis-à-vis development than the National Conservation Strategy and the several State equivalents of the 1980s.

It is the all-embracing sweep of subject matter, actions and reporting responsibilities of the international Conventions that provide the Commonwealth with greater scope for invoking its external affairs power.  Principle 11 of the Rio Declaration on Environment and Development even commits each country that it "shall enact effective environmental legislation". ⁽⁷⁹⁾

The IGAE and the two national strategies would, of themselves, be powerful means of nationalising the environment.  But it is the combined effects yet again of the clutch of international and national agreements more than each individual agreement that make them so important.  I leave aside purely political issues for others to make separate analyses.

The CEPA provides the Commonwealth with a ready-made 125-person bureaucracy to be involved.  And in addition the NEPA would provide the authorisation by the nine Parliaments to legitimise matters such as national standards.  It would become the tenth environmental authority in Australia, and El Supremo, with its own statutory bureaucracy.

The Agreements of '92 have massively increased government intervention, with such deeds as 384 commitments under just one strategy.  The fundamental question to be addressed is whether the Agreements will result in more effective protection of the environment.  This will be examined below.

The associated and no less important question is whether the Agreements will increase the efficiency of the government role in environmental issues, and whether the end result will be an increase in Australia's international competitiveness.

As will be discussed, my conclusion is that the Agreements are unlikely to cause an improvement in any of these matters.  To the contrary, as present plans stand, I see very great potential for less efficient and effective environmental protection.  And, without a doubt, the net combined effect of the Agreements is a great expansion of uncertainty, an ethos that is biased against development, and a loss of international competitiveness.  The uncertainties are illustrated by two facts.  First, it is now unclear whether the CEPA or the NEPA will develop uniform national standards.  Second, there are fatal flaws in the National Strategy for Ecologically Sustainable Development, such that it is not sustainable nor is it appropriate to Australia (Section 3.5.6 above).  There are many other disadvantages, of which only a few are now discussed.  First, the status of the CEPA is reviewed.

4.2 STATUS AND PRIORITIES OF THE CEPA

At this stage, it is understood that there is no intention to provide the CEPA with specific enabling legislation. ⁽⁸⁰⁾  In 1992, the CEPA administered 13 pieces of legislation relating to environmental protection.  The Commonwealth government will consider at some time in the future whether or not it will legislate to establish the CEPA as a statutory authority.  As previously mentioned, the CEPA's stablemate, the Australian National Parks and Wildlife Service, was created as a statutory body in 1975.

The Commonwealth is committed to national standards across Australia, said to be focusing on better environmental management rather than complete reliance on regulatory measures. ⁽⁸¹⁾  The CEPA is actively seeking input from business and industry in the development of a strategic approach to these issues.  The extent to which it can do so successfully, while still clearly recognising the substantive role played by the State, Territory and Local governments as the primary enforcement authorities, remains to be seen.

The Executive Director, David Buckingham, is continuing the consultative processes begun by McPhail.  There appears to be a pragmatic approach to potential roles for the CEPA, treading softly where State authorities may be sensitive to intrusion.  Broad or "national" aspects are being explored, ranging from important trivia like recycling and litter to fundamental economic controls like the extent of self-regulation versus government regulation of the environment.

Issues of immediate priority to the CEPA, on which it will work in close collaboration with the States and Territories and business, industry and community groups, are said to include:

• establishing the National Environment Protection Authority provided for in the InterGovernmental Agreement on the Environment;
• developing the scope and impact of the Environmental Choice Program;
• promoting waste minimisation and recycling;
• introducing national environmental quality standards, guidelines and goals;
• assisting in resolving the problems of contaminated sites;
• strengthening the reporting on the state of the Australian environment;
• identifying, publicising and seeking broad based solutions for critical urban environment issues;
• streamlining and improving environment impact assessment across the country;
• promoting pollution avoidance and new technologies;
• contributing to effective and efficient greenhouse climate change responses;  and
• contributing to the development of the Multi-Function Polis Australia, including activities in Adelaide. ⁽⁸²⁾

One can have little quarrel that most of these subjects are valid interests for some type of Australia-wide body.  Whether this should be a CEPA -- reporting to the Commonwealth Minister -- or a NEPA -- of all nine Ministers -- remains the unanswered question.  At present, in typical compromise, both are planned, so that the question does not have to be answered yet.

It is important to remember that with the CEPA, as with the proposed NEPA, it is the physical environment, not conservation, that now dominates.  This appears to be largely a result of divided bureaucratic responsibilities in Canberra, where there is already a Commonwealth conservation body, the Australian National Parks and Wildlife Service.  Thus any nationalisation of conservation issues is being handled separately from the processes discussed here.  There will inevitably be more confusion at some unknown time.

4.3 EXAMPLES OF CURRENT CEPA PROJECTS

4.3.1 Waste Minimisation and Recycling

The first contact that the CEPA made with the Australian public was the promotion of the cartoon character, B. Smart.  We were introduced by B. Smart to the new agency, the CEPA, which modestly asks and answers the question in advertisements:

Who are we to care?

We're a new agency of the Commonwealth Government.

Our job is to work with other state and local government bodies, industry, unions and the community to help find national solutions to Australia's pollution problems.  But we can't really achieve anything without your help.  So B. Smart, and play your part. ⁽⁸³⁾

How true, and yet how sad and childish an introduction to the national thought processes about the environmental priorities of this country in 1992.  Yet it fulfils the dominant imperative -- give comfort to the community, and make them participants.  The potential influence of such mass appeals, if carried on for a generation, is enormous.  But it can trivialise and homogenise the mind, and distract from any grasp of a real vision.

Yet another campaign to recycle materials, minimise packaging, reduce waste, make compost and carry your own shopping bag, is a natural for kindergarten environmentalists.

In the 1970s, when environmental laws were evolving around the globe, such appeals to the masses were commonplace.  Everybody could join in.  Everyone made garbage and waste was a subject that everyone could easily understand and deplore.  Boy Scouts, junior Rotarians, politicians and local councillors were enthusiastic.  "Pilot" programmes sprang up around the country, to favourable media coverage.  Photo opportunities proliferated.  Keep Australia Beautiful campaigns were heavily promoted, often supported by the packaging, canning and bottling industry in public-spirited attacks on litter -- and very successful ones.

There was a surge towards imposing deposits on some items of packaging.  South Australia copied some of the enthusiasms of North America, and imposed deposits on soft-drink containers.  Various reports of success and non-success resulted.  Will the CEPA follow?

Such public campaigns to involve the community in waste reduction and in recycling usually strike a sympathetic chord, and rightfully so.  Whether they are economically feasible and cost-effective is generally a local issue, often hinging on efficient management.  But they are, or could be, the flip side to increased government intervention.

There have been campaigns where so much enthusiasm has been aroused for saving waste newspapers that the receivers have been overwhelmed and unable to cope.  Not only that, but traditional, more stodgy but long-lived newspaper-collection programmes, such as one in Western Australia for the hospitals, have collapsed when the glut forced the price down.

Such campaigns will continue to surface and will gradually become viable here and there.  They will continue to attract public support, even from those too young to remember the salvage drives of the war or the old sonorous calls of the bottle-o.

One can understand the CEPA's mounting a campaign such as "B.  Smart".  Most States were probably happy to relinquish responsibility to a national body, with claims of cost-savings through uniformity of advertising and so on.  Who cares if previous campaigns have failed on economic grounds and possibly even in conservation itself? ⁽⁸⁴⁾

Ultimately, of course, as B. Smart recognises, the cost-effectiveness will be determined not at a national level on this vast continent, but on a local level -- the level of the garbage collector and the local Council.  The Council rates that householders are willing to pay, plus their dedication to pre-sort rubbish, will make or break each programme.

And perhaps the findings of the Industry Commission, which mounted an extensive Inquiry into the costs and benefits of such matters as paper recycling, will be read.

Perhaps even, in time, the advertising agency and the bureaucrats who create such features will realise that to promote BYO shopping bags -- "Take your own backpack, trolley, string bag or shopping bag to the supermarket or fruit shop" -- is perhaps, in the 1990s, a little twee?  And yet new generations of new shoppers are growing up, and supermarkets are changing, so perhaps some form of extension programme will be needed for another generation or two.

These comments are not attempts to denigrate resource recycling, which is so obviously important from many perspectives.  But is some of it not economically and environmentally self-defeating?  And is it really of vital, first-priority importance to Australia at this time?

4.3.2 National State of the Environment Report

The second major community initiative by the CEPA is its programme to produce a National State of the Environment Reporting System.

Truly national matters like a report on the state of the Australian environment are being examined, over a 3-year process, and modelled on such professional but public interest documents as those produced by Canada.  Some States may object, but one can only support such ambitions for the Commonwealth government, if for no other reason than to consign to oblivion the publication Australia's Environment:  Issues and Facts, unfortunately produced by the Australian Bureau of Statistics in June 1992 as a "prototype".

Again, few would quarrel with the potential usefulness of the proposed development of various indicators of the status of the environment.  The discussion paper and the workshop were methodical developments towards documentation for domestic use and for international audits following Rio agreements.

Some parochial (State) government instrumentalities, already working on their own reports, and preferring to keep their production in-house, may prove restive.  But as an Arab commented in Stockholm in 1972 after stories of independent stances by some Australians, "I have never heard of a country called New South Wales."  A National State of the Environment Reporting System for Australia must be far more than a bound collection of nine individual reports by each government.  It must be synthesised.  The CEPA clearly has a valid national role in such an activity.  Operationally it will also be important as a database in the discussion of national standards.

4.4 NATIONAL STANDARDS -- THE CALL FOR A FEDERAL AGENCY

One can understand calls for uniformity of environmental regulations and for common environmental standards in such environmental issues as air pollution and water pollution.  Industry may believe that otherwise it can be unfairly disadvantaged, and communities may fear that their areas may become pollution havens.

It is such a call that has been the driving force for such a Federal agency to date.  Yet one must ask whether it makes sense, on practical, environmental, economic or community grounds.  One may also question whether it comes from Chairmen of industry for its reassuring concept, or from field CEOs, knowledgeable about realities of inhomogeneities.

What is more, lack of clarity in knowing what kind of problem existed, and what required a solution, led to the early discussion of simply "a Federal agency" (see Section 3.2 above).  Later discussion caused the creation of the CEPA in the first place and will possibly lead to the creation of the NEPA.  But it is still far from clear that both are needed for technical reasons, as distinct from political reasons.

The then Prime Minister, Bob Hawke, announcing the intention to form a Federal EPA, stated that:

Increasingly, the Australian community and investors are demanding national approaches to major environmental issues. ...  They do not want as many systems for dealing with these [national or global] problems as there are States and Territories. ⁽⁸⁵⁾

Similarly, then-Premier Nick Greiner stated:

I firmly believe that we must reconsider our narrow obsession with States' rights. ⁽⁸⁶⁾

It may be noted that in a companion speech, on "Earth Day", the NSW Minister for Environment mentioned that the more extreme greenhouse predictions envisaged the waters of Sydney Harbour rising around the Opera House.

Certainly conservation groups wanted more centralised and supreme power to be given to the Commonwealth. ⁽⁸⁷⁾  But industry was far from being as demanding as Mr Hawke implied.

In its Bulletin of January/February 1991, the Business Council of Australia reserved its decision about the need for a Federal EPA. ⁽⁸⁸⁾  This was at a time before the Commonwealth Position Paper which suggested (rather obscurely) two new agencies or structures.

The BCA "supports the concept of nationally consistent (though not necessarily uniform) environmental standards".  It called for "rationalisation of the present situation as a useful role for a Federal EPA, although actual administration would seem best left as a State activity".

The BCA then made the most important point about standards which has not been reflected in any of the Agreements:

Standards should ... be developed which are appropriate for the Australian environment;  based upon the actual measured impact on the environment.  There is nothing to be gained by Australia adopting the toughest standards in the world if that is unnecessary and will put us at a competitive disadvantage.

The issue of national uniform standards is a complex one, pursued in Appendix 1.  Here only a few key points are made.

The IGAE uses the terms national "standards, guidelines and goals," (see Section 3.4, above).  One cannot quarrel, usually, with the concept that national standards can be set where they are determined by considerations of human health.  One should, however, be aware that much of the risk analysis on which human health standards are set may not be an exact science (see Appendix 1, below), and numbers can be rubbery.

But such is the enormous diversity, and resilience, of the Australian environment that there may be even greater doubt about the rigour of arguments for national, uniform environmental standards.

A drive for uniform standards may lead to adoption of the lowest standard.  The IGAE provides for any government to adopt "more stringent standards" than the "uniform" standards set by the NEPA.  Thus the proposed NEPA will not necessarily lead to more consistent standards, as desired by industry.

As discussed in Appendix 1, the costs of environmental regulatory standards is increasingly recognised as important.

The proposed arrangement for the NEPA is that draft standards will be made available for public comment, together with analyses of the social and economic impacts of such standards. ⁽⁸⁹⁾

Such pragmatism is commendable, but of course it immediately gives the lie to any notion that the standards set are scientifically rigorous and immutable.  And once that step is taken, and the conceptual rigour of a standard is compromised by considerations of the real world, one can ask again why there should be uniform national standards, for environmental reasons as distinct from health reasons.

In summary, the argument for uniform national environmental standards is a fragile one.  Yet it has been the ultimate stated rationale for much of the drive towards a Federal environmental agency.

4.5 IMPACT OF THE CLIMATE CHANGE CONVENTION

The Convention on Climate Change was signed by Australia at Rio but is not yet ratified.  Before ratification is considered there should be a cold, hard reappraisal of Australia's situation.  This is only summarised here as follows:

• Australia is committed to a national greenhouse policy but several international competitors are not; ⁽⁹⁰⁾
• the Australian national strategy aims at the Toronto Target with an economic caveat;
• the Convention does not require the Toronto Target;
• the dominant US position on the Convention was taken under the Bush administration;
• the predicted impact of greenhouse on the Australian climate is now much less than when the national strategy was developed;
• greenhouse national policies and reporting have spin-off implications for energy issues and an array of industrial and community activities.

4.6 THE COSTS OF ESD

Costs were important considerations at the Rio Conference.  Principle 5 of the Rio Declaration listed the eradication of poverty as an indispensable requirement for sustainable development.  The special needs of developing countries were given special priority by Principle 6.  Commitments of several billion dollars were sought from developed countries.  The UNCED Secretariat has estimated that international concessional financing of order $125 billion will be required annually. ⁽⁹¹⁾  If Agenda 21 were to be implemented, about $600 billion a year would need to be spent in developing countries, mainly by those countries.

The Australian Agreements of '92 do not generally deal with costs of their implementation.  The affordability of the 70 Objectives and the 384 government Commitments of the NSESD, and of the NEPA and the IGAE, is not examined.  There are no Treasury analyses referenced.  Indeed the agreements are so wide-ranging and uncertain as to defy costing.  Consistent, however, with the way in which ESD discussion has proceeded in Australia, there are several references to mechanisms being "cost effective".

Section 2.5.1.5 of the IGAE notes that decisions on major issues taken at one level of government may have significant financial implications for other levels.  It is agreed that major or abnormal implications will be "considered" under some circumstances.

The cost of the CEPA is borne by the Commonwealth government as a Commonwealth Agency.  The cost of the NEPA cannot yet be estimated.

There is of course a fundamental issue overlooked in some discussions of the "costs" of environmental agencies.  That is the question of self-funding.  Should a pollution control agency seek to recoup its operational costs by fines and by licence fees, for example?

More to the point is the equivalent question for conservation agencies.  Should they be self-funding by revenue gained from exploitation of their (sustainable) resources, such as forests, parks and wildlife?  This point is raised because some States have encountered it, perhaps more realistically than has the ANP&WS, which had a budget of some $26 million in 1989-90, over and above funds from fees in Kakadu and Uluru.

The point of cost is also relevant when consideration is given to the merits or otherwise of self-regulation of standards by industry.

The National Strategy for ESD recognises that many of its "broad strategic directions and actions" will require "substantial funding." ⁽⁹²⁾  Each jurisdiction is to determine its own priorities.  Thus uncertainties are further compounded, and opportunities for non-uniformity tacitly expanded and approved.  Will each government really report to its electorate each year which of the 384 commitments it has met?

But that covers only the costs to carry out ESD actions.  The costs of benefits forgone because of ESD or, more likely, of loosely interpreted theories of ESD, are not even mentioned.  The total cost of the agreed Strategy is unknown.

What seems extraordinary is that no-one seems to have asked what the costs might be, before the nine First Ministers endorsed the Strategy.

The greatest cost, in my opinion, is not even the possible direct cost of implementing a number of the commitments and agreements.  A far higher cost is the extensive uncertainty that must afflict developers, confronted with not knowing what will happen next and what it will mean.

And a higher cost again is the unnecessary blight that is imposed on Australia's present and future by the imbalance of the strategies and the agreements, and the bias not towards a visionary sustainable development, but towards an ethos of defensive and negative environmentalism, an ethos of a poorly-defined precautionary principle.

Under such circumstances I make an urgent recommendation for a new intergovernmental agreement on economically sustainable development (see Section 7 below).

4.7 FLAWS AND OMISSIONS IN THE NATIONAL ESD STRATEGY

There are several flaws and omissions in the National ESD Strategy but only three major ones are discussed here.  They are not in order of priority.  Any one of them is a fatal flaw.

4.7.1 Wealth

None of the Australian Agreements of '92 adequately addresses the creation of wealth.  In particular, the revolutionary message of the Brundtland Commission, that economies must grow at increasing rates to achieve global Sustainable Development, is largely suppressed in the National Strategy for ESD.  Like the laughter of Johnson's philosopher, the economic imperative does occasionally break through the NSESD.  Two of the seven "Guiding Principles" are:

the need to develop a strong, growing and diversified economy ...

the need to maintain and enhance international competitiveness ... ⁽⁹³⁾

But these principles have as their principal purpose desirable environmental processes, not an ethos of development for wealth and quality of life.  Similarly, the Intersectoral Issue of Pricing and Taxation is dedicated to economic instruments that will assist environmental or natural resource management, not the alleged other arm of ESD, development.

Some might argue that ESD is, after all, about the environment and environmental issues, and that the NSESD should concentrate on the environment.  That is precisely a fatal flaw of the Australian ESD processes.  Any vestige of a vision has been confined to the environment alone.  If the very concept of sustainable development means anything, it means a balance between environment and development.  The ethos must promote development more than simply as a tool to preserve the environment.  Development can also be quite properly a tool to improve the quality of life for this generation as an end in itself, if that is desired by this generation, provided the environment is sustained responsibly.

Dare one say it -- there is more to life than "The Environment".

Somewhere along the way, the development ethos has largely disappeared from the Australian ESD processes.  The Brundtland Commission report, Our Common Future, ⁽⁹⁴⁾ is widely accepted as the basis for the Rio Conference and the UNCED process, so let us examine whether the Australian Agreements of '92 are faithful to the Brundtland findings.  Brundtland's personal comments in the Foreword to Our Common Future were not solely directed at the physical environment.  She wrote:

What is needed now is a new era of economic growth -- growth that is forceful and at the same time socially and environmentally sustainable.

"Growth that is forceful":  oh, to have those words appear respectable again, and be uttered by Australian political leaders in public, without fear of reprisals.

Those words, or their intent, are greatly diminished in the National Strategy for ESD.  They appear to an extent in the Guiding Principles ⁽⁹⁵⁾ but not broadly throughout.  They appear in Section 3.3 of the IGAE but in a half-hearted manner, short of actual endorsement and using bracketed phrasing that obviously indicate a painful birth.  Thus Section 3.3:

The parties consider that strong, growing and diversified economies (committed to the principles of ecologically sustainable development) can enhance the capacity for environmental protection.  In order to achieve sustainable economic development, there is a need for a country's international competitiveness to be maintained and enhanced in an environmentally sound manner.

The emphasis is still on a goal or "capacity" for environmental protection not on responsible development for an improved quality of human life.  One might question whether the second sentence makes logical sense, or is simply circular argument.

So, in the end, the Australian 1992 environmental strategies are unbalanced.  They place too much weight on one half of the sustainable development balance.  While such a bias persists, the ESD strategy is but another overburden to development, not a far-sighted and enabling policy.  It is not a vision but a defence.

The lack of balance skewed the ESD process from the outset, of course, by bonding of the word "ecologically" with the phrase "sustainable development".  This initiative, perhaps peculiar to Australia, incorporated a bias from the beginning and made a mockery of the concept of balance in all the debates and reports.

If there was to be a real balance, then the word "economically" might have been added to offset the added detail that was given by the word "ecologically".  But it was not to be.  In 1992, in the depth of the worst economic recession since the 1930s, the First Ministers placed their priority on the environment.  They neglected to consider the cost, much less the economic impact, of their ESD strategy, or even to mention its magnitude.

4.7.2 People

Another element that is largely neglected in the Australian Agreements, in spite of being "first and foremost" the "ultimate goal" of the Brundtland Commission, is simply people.  Unbalanced Australian environmental policies are permeated by the "only man is vile" syndrome.

Yet, as Brundtland stated in her Foreword:

First and foremost our message is directed towards people, whose well-being is the ultimate goal of all environment and development policies.

The first Principle agreed upon in the UNCED declaration at Rio states that:

Human beings are at the centre of concerns about sustainable development.  They are entitled to a healthy and productive life in harmony with nature.

The centrality of that message is not echoed in the bulk of the Australian National Strategy for ESD.  Instead it is the natural environment, and ecological processes, that dominate and motivate the NSESD.  Although the Commonwealth definition of ESD begins with the notion of using resources, it puts as the first reason the maintenance of ecological processes.  Increase in the total quality of life comes second.

The NSESD is coloured with the deep green philosophy that homo sapiens is simply one of many million species with equal standing on this planet.  The draft National Strategy for Conservation of Biological Diversity emphasises "no one species or generation should claim [Earth] as its own." ⁽⁹⁶⁾

The early parts of the NSESD do include the enhancement of "individual and community well-being and welfare" as a core objective.  But the body of the strategy and its commitments appear remote from the purpose.  They quickly concentrated on environment.

It is as if Australia was sliding to environmental catastrophe so rapidly that the sudden plethora of agreements in 1992 was needed to avert this or that environmental tragedy.  But the medicine is being applied for the wrong illness.  A balanced, sustainable development process depends on a growing economy being able to provide wealth, part of which can be used better to look after the environment.

None of the body of the Agreements, with the possible exception of hints in the CEPA and the NEPA, is directed towards forceful economic growth.  And humanity seldom gets a mention, except in special-interest advocacies such as gender issues, that is, women, or Aboriginals, and in diffuse policies, such as intergenerational equity.  None of the Agreements expresses a joyful and positive vision but only angry or prosaic defensive attitudes, lacking confidence, and looking to the future with a precautionary principle.  Has youthful Australia really come to such a melancholy dreary pass?  Curiously, although gender issues were treated in both the NSESD and Agenda 21, Chapter 25 of Agenda 21 which deals with "Children and Youth in Sustainable Development", has no equivalent in the Australian document.  This seems a curious inversion of priorities even if one did not make a point about intergenerational equity.

In this context, it is important to note that any imbalance or bias towards environment in the ESD strategy has gone beyond the Environment Ministers, whose responsibility it is to favour environment.  This imbalance is now at First Minister level, that is, through the Department of Prime Minister and Cabinet, and Premier(s) and Cabinet(s).  The Strategies are retreating further from hard technical issues into the unreality of populist politics, and further from humanity into deep green causes.

4.7.3 Australia

Finally, and most sadly, there is little in any of the National Strategies that is peculiarly Australian (except the term ESD).  There is little that acknowledges the vast latent strengths of this country, in either human or natural terms.  There is little that acknowledges the environmental potential of this country, or its unique geographical context.  It is as if the drafters of the strategies were cocooned from Australian reality but pumped full of United Nations documentation.  It is as if they were exposed, not to fresh air and the rugged, open bush but only to archives of previous committee deliberations overseas.

Such a comment is, in fairness, unfair.  The various strategies were exposed to much Australian community consultation and input.  They fairly reflect much of a certain community view.  The fundamental question is, what was the underlying ethos of the various drafts?  Was it the ethos that man is vile and that developments are grudgingly tolerated only if they can help sustain The Environment?

Most important in the whole development of the various strategies is the flaw that they reflect consensus, rather than an exciting and stirring vision for the future.  One cannot help but wonder at the dissipation of all the effort, time and resources that knowledgeable and caring Australians put into achieving the Agreements of '92.  Could not these efforts and Australian emotional and intellectual resources have been better directed towards a wider vision for Australia, acknowledging quickly the goal of sustainable development and then working out how to start and fuel the engine of the concept, development?

The Agreements of '92 are so preoccupied with an anxiety to protect the environment that they may suffocate the developments essential to afford that protection.  Why does Australia flagellate herself in this manner?  The answer must lie in the fact that conservation advocates were more successful than development advocates in selling the contents of the agreements to the bureaucracies that drew them up.

Such a fundamental imbalance also exists in media perceptions that conservation groups occupy, and operate from, the high moral ground.  Few dare to challenge them because of the potential for personal and irrelevant abuse.  While the economic illnesses of Australia have many and complex causes, it can be confidently stated that the denigration of a development ethos has frustrated recovery and diminished international competitiveness and efficiency.  The 1992 Agreements do not correct, and indeed they aggravate, such a denigration.

Those few who dare analyse or criticise the precautionary principle may expect extensive personal abuse, by those "full of passionate intensity".  Such personal attacks are a great disservice to the community at large.  They distract attention from the issue itself, and tend to trivialise it.

The "feel good" imagery of saving the planet has more emotional appeal than does development in the corridors of paper, protected from the harsh exigencies of international competition and the creation of wealth.  Consequently, of course, this way of life can only be sustained by extensive borrowings overseas.  Others can comment how long this can continue.

Australian developments often suffer in their international competitiveness from tyrannies of distance imposing transport and infrastructure costs.  Yet they suffer doubly when governments impose on them environmental policies and attitudes more suited to older, wealthier, more settled and more stable economies, with long-established infrastructure, free from such tyrannies of distance.

Perhaps the simplest way to highlight the missing ethos of the Agreements is to say that they do not admit the need for a pioneering attitude.  It is left to the reader to make a personal value judgement as to whether Australia, as a nation, no longer needs pioneers, and instead should follow a precautionary principle as a way of life (see Section 3.5.5 above).

Instead of pioneers, the Agreements of '92 promote more and more actions and processes by governments.  They promote a "planned environment", by government process and by massive, pervasive interventions.

With the collapse of the planned economies, world politics has clearly demonstrated that there is a need for a new world order.  In a similar way there is a need for a new environmental ethos in industry, government and the community.  A highly bureaucratic involvement in a centrally-planned environment is grossly inefficient in itself, quite apart from the relationship between centrally-planned economies and environmental ills.  Although severe pollution problems are not unique to any land, the carelessness and vast extent of massive pollution in the Soviet Union has few parallels. ⁽⁹⁷⁾

Bureaucracies can also lose contact with the real world, in issues like regulations, standards and processes.  Self-protection by a regulatory body against criticism can cause it to impose additional margins of "safety" in an open democracy, so that instead of a health standard being accepted, a more senior body decides to make assurance doubly sure, and adds a further safety margin for a more severe standard.

There must be a recognition that over the past two decades, as political interest in environmental issues has grown, so too have both the interest and the skills of industry grown.  This seems scarcely recognised by government which ratchets up regulations and controls, instead of ratcheting them down.

Self-regulation should be encouraged but does not appear to be mentioned in the Agreements.  The government and the community must enable industry to spend less time in process and more time in progress in order to be internationally competitive, instead of being consumed in a growing black hole of government controls.

New and far-ranging policies and inquiries are also time-consuming and do not create wealth.  The skills of productive people are spent on defensive papers, submissions and witnessing.  Not even considered in this paper are the related "initiatives" such as National Waste Minimisation and Recycling Strategy, the Commonwealth Major Projects Facilitation Initiative and National Forests Policy Statement, the Rio Declaration and Agenda 21.

Actually the Commonwealth Major Projects Facilitation Initiative appears to be achieving some success, in environmentally "fast-tracking" at least two major projects, MIM's $250 million McArthur River zinc, lead and silver mine, and the Zapopan Mt Todd gold mine.  Aboriginal issues are another matter.  It is understood that the major projects group was absorbed in early February 1993 into a new National Investment Council.

But special government mechanisms and agencies to overcome the difficulties and delays caused by other agencies and processes within government are surely an absurdity, and demand changes in the delaying processes themselves.  A new commando corps of government, fighting government for special cases, is scarcely efficient government.

The Agreements of '92 inhibit rather than enable Australia's economic recovery.  Whether the "fast-tracking" processes violate the agreements is a matter for time to make clear.  By their very existence and the excitement and plaudits they attract when successful, they indict the present state of the national environmental processes.

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ENDNOTES

79.  Johnson, The Earth Summit -- The United Nations Conference on Environment and Development (UNCED), page 19.

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

81.  Ibid.

82.  Ibid.

83.  Press advertisements, 1992.

84.  Industry Commission, Interim Report on Paper Recycling.

85.  Robert J. Hawke, Our Country, Our Future.

86.  N. Greiner, The New Environmentalism:  A Conservative Perspective.

87.  Fowler, Proposal for a Federal Environment Protection Agency.

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

89.  IGAE, Schedule 4, Section 10.

90.  See Annex I plus Article 4, Section 2 of the Convention on Climate Change in Johnson, The Earth Summit -- The United Nations Conference on Environment and Development.

91.  Johnson, ibid.

92.  NSESD, page 18.

93.  NSESD, page 8.

94.  WCED, Our Common Future.

95.  NSESD, page 8.

96.  Draft National Strategy for the Conservation of Australia's Biological Diversity, page 6.

97.  Murray Feschbach and Alfred Friendly Jr, Ecocide in the USSR.  Health and Nature Under Siege.