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Australian Government & the Environment

In-House Memorandum
Australian Governments and the Environment

 This month we focus again on important Government administrative and regulatory changes with respect to the environment. We look at both Victorian and Federal levels.


Victorian Environment Commissioner

Prominent and highly respected environmental lawyer, Professor Kate Auty was appointed as Victorian Commissioner for Environmental Sustainability in 2008 for a five year term, expiring in July 2014. Professor Auty recently announced she will stand down at the earlier date of 31 March 2014.

Reported as expressing concerns at climate change language within Government, she is said to refer to a direction to public servants to talk about “climate variability” and not “climate change”[1]. The Commissioner is reported as commenting that:

 “… as long as we keep telling people [climate change] is about natural variability we allay their desire to act themselves or want their elected representatives to do something about climate change…. We need leadership on this issue, we need it now. It is urgent.”[2]

 The State Government will appoint an Acting Commissioner, during the interim period, to “review the value of the position”[3].

Victoria’s independent Environmental Sustainability Commissioner stands in a unique position nationally[4]. The position was established under the Commissioner for Environmental Sustainability Act 2003 (Vic). Its objectives are to:

  • report on the condition of Victoria’s natural environment;
  • encourage decision making that facilitates ecologically sustainable development;
  • enhance knowledge and understanding of issues relating to ecologically sustainable development and the environment; and
  • encourage Victorian and local governments to adopt sound environmental practices and procedures.


2013 State of the Environment Report

The Commissioner prepares the State of the Environment of Victoria Report, which is published every five years, and annually audits environmental management systems of Victorian Government agencies and public authorities. It reports according to a State of the Environment Framework Report[5]. Alongside this is a detailed report as to Public Participation[6].

The 2013 State of the Environment Report is divided in two parts: Trends and Analysis, and Goals and Recommendations[7].

It draws on three Foundation Papers:

–          Foundation Paper One: Climate Change Victoria: The Science, Our People and Our State of Play;

–          Foundation Paper Two: Land and Biodiversity Victoria: The Science, Our Private Land Holders, Incentives and Connectivity; and

–          Foundation Paper Three: Water Victoria: The Science, Our Urban Communities and Our Water Futures.

 It also produced two additional Foundation Papers called ‘Policy Intensive Reports’ – Intensive 1: Indicator Selection and Intensive 2: Sustainability Re-Imaginged.

Clearly the Commission has produced highly significant and extensive material of great future benefit to the State of Victoria. Foundation Paper Three, concerning Water, sits alongside the important Water Law Review also currently underway.

For more information on, or to download, the above reports visit: http://www.ces.vic.gov.au/publications-and-media-releases/state-of-environment-report


Direct Action Plan

Whilst both major parties are committed to Australia’s international commitment to a 5% emissions reduction target[8], there is disagreement as to the best strategic mechanism to achieve it.

The Abbott Government relies upon a Direct Action Plan[9] which aims to:

 “appropriately manage the balance between the environment and the needs of communities, and … take direct action to reduce carbon emissions”[10].

Policy Measures under the Direct Action Plan

Policy Project
Clean Air Emissions Reduction Fund; Twenty Million Trees, One Million Solar Roofs.
Clean Land Green Army; One Stop Shop; National Landcare.
Clean Water Murray-Darling Plan; Water Security; Reef 2050.
Heritage Our Borders and Beyond; Community Heritage and Icons Program.

Source: Department of Environment, ‘A Cleaner Environment’[11]

The Direct Action Plan is a combination of policy measures but its centrepiece is the Emissions Reduction Fund.

 Emissions Reduction Fund (‘Fund’)

 A White Paper explaining the fund, with Exposure Draft legislation, is due for release early in April 2014. The Fund is targeted to commence on 1 July 2014[12] and will consist of three key elements:

  • Crediting emissions reductions;
  • Purchasing emissions reduction; and
  • Safeguarding emissions reductions.

While the major aspect of the Fund is a carbon pricing mechanism, business will compete for tenders on emissions reduction processes. Successful tenderers will be paid to undertake these projects. Key principles guiding the Fund’s design are: lowest-cost purchase, genuine reductions, streamlined participation and administration.

In the early stages, Government will work with industry to develop methods for emissions reduction that will have “the greatest prospect of delivering large volumes of low-cost emissions reductions”[13]. Methodologies for a range of land-sector activities, developed under the Carbon Farming Initiative, will continue under the Fund.

 Climate Change Repeal

 The package of climate change repeal Bills is currently being debated in the Senate. The success or failure of the Bills is largely dependent on the composition of the Senate. It has been suggested unlikely that the Bill will pass before 1 July 2014[14], as until 30 June 2014 the Greens hold the balance of power in the Senate. West Australian Greens Senator Ludlam recently made it clear that:

 “The Greens have been articulating a vision of Australia as it could be – an economy running on infinite flows of renewable energy”: http://www.youtube.com/watch?v=dtqrfiEV8Gs.

 The ALP re-stated since the election that it supports the repeal of the existing carbon tax. Its position is that:

 “Labor stands by its election commitment to support the termination of the Carbon Tax, provided that a market based mechanism that reduces carbon pollution is put in its place, along with a strong commitment to expanding renewable energy”[15]

 The future composition of the Senate, which will commence 1 July 2014, is still uncertain as, due to a decision in AEC v Johnston[16], the Senate election in Western Australia was declared void[17]. The election re-run will take place on 5 April 2014.

The future senate is composed of thirty (30) Coalition members, twenty-four (24) ALP members, nine (9) Greens members, two (2) Palmer United members and five (5) independents and minor parties. Up for contest are three (3) Liberal seats[18], two (2) Labour seats[19] and one (1) Greens seat[20]. These will decide the final balance of power in the Senate.

 The ‘One Stop Shop’ Environment

 On 6 March 2014, the Law Council of Australia (LCA) welcomed Adjunct Professor Rob Fowler[21] at the Federal Court in Sydney to present the Mahla Pearlman AO Oration. This annual Oration honours the late Hon Mahla Pearlman AO, former New South Wales Land and Environment Court Chief Judge, whose illustrious legal career involved early formative legal work on administration of the NSW Land and Environment Court.

Professor Fowler chose as his topic the role of the Commonwealth with respect to the environment and its Environmental Impact Assessment (EIA) process. He commented that the current Government’s ‘One Stop Shop’[22] approach to national environment law through the states is likely to lead to an ‘Eight Stop Shop.’ He pointed to proposed changes to dramatically alter the Commonwealth EIA process, established under the Environment Protection and Biodiversity Conservation Act 1999 (Cth):

“[A]t present, the debate is mired in an invidious choice between maintaining the current, flawed legislative scheme for EIA, and seeing it traded off to the States for implementations via bilateral agreements”[23].

 He argued that the political constituency needs to be prepared to demand more radical action by governments on the environment and that:

 “There is a pressing need for a nationally driven, state of the art, Commonwealth environmental law that rejects the “race to the bottom” strategy of cooperative federalism and the abdication of responsibility associated with the current embrace of the State sovereignty concept. In their place there should be a positive, visionary pathway to a sustainable Australian environment, economy and society”[24].

 Professor Fowler’s full speech is available via LCA’s website: http://www.edotas.org.au/wp-content/uploads/2014/03/MAHLA-PEARLMAN-ORATION-Adjunct-Prof-Rob-Fowler.pdf


Cameron Algie
17 March 2014


[1] Tom Arup, 2014, ‘Environment commissioner Kate Auty quits, drops bucket’, Sydney Morning Herald, 6 March 2014

[2] Professor Kate Auty, Victorian Environment Commissioner, reported in Tom Arup, 2014, ‘Environment commissioner Kate Auty quits, drops bucket’, Sydney Morning Herald, 6 March 2014

[3] Spokeswoman for Environment Minister Ryan Smith, reported in Tom Arup, 2014, ‘Environment commissioner Kate Auty quits, drops bucket’, Sydney Morning Herald, 6 March 2014

[4] “Apart from the Australian Capital Territory, Victoria is the only state to have an independent environment commissioner”: available online at http://www.ces.vic.gov.au/about-ces/role-of-the-commissioner, accessed 17/03/14

[5] Science, Policy, People: SoE Framework, 2013, State Government of Victoria, see http://www.ces.vic.gov.au/__data/assets/pdf_file/0018/124227/SoE2013FrameworkcleanHR.pdf accessed 17/03/2014

[6] SoE Engagement: Many Publics Participation Inventiveness and Change, 2013, State Government of Victoria, see http://www.ces.vic.gov.au/__data/assets/pdf_file/0006/137229/CPreport12_LR-bookmarks.pdf accessed 17/03/2014

[7] The Trends and Analysis section looks at environmental indicators providing insight into the effectiveness of environmental management policies and activities. Whilst acknowledging extreme environmental events, it notes trends in climate change and air quality, biodiversity and land, inland waters, marine and coastal environments and human settlement. The Goals and Recommendations section is underpinned by four key environmental principles: ecosystem services, ecological resilience, social resilience and strategic adaptive management.

[8] Under the 2012 ‘Doha Amendment’ to the Kyoto Protocol , Australia has agreed to binding targets for reductions in greenhouse gases . The Amendment specifies a second commitment period for the extension of the Kyoto Protocol, which runs from 2013 to 2020 . Australia’s unconditional 2020 target is 5% emissions reductions. The Doha Amendment notes that: “Australia retains the option later to move up within its 2020 target of 5 to 15, or 25 per cent below 2000 levels”.

[9] The Plan has not been fully outlined by the Abbott Government, however the Emissions Reduction Fund is considered its ‘centrepiece’; see http://www.environment.gov.au/topics/cleaner-environment/clean-air/emissions-reduction-fund, accessed 17/3/14.

[10] Australian Government. 2013. The First 100 Days of Government: Delivering on Our Plan. Commonwealth of Australia: Canberra, p19

[13] Australian Government Department of Environment, 2013, Emissions Reduction Fund Green Paper, Commonwealth of Australia: Canberra, p3

[14] Talberg, A., et al., 2014, Clean Energy Legislation (Carbon Tax Repeal) Bill 2013, Bills Digest No. 16, 2013–14, p.15

[15] Butler, Mark (Labour Spokesperson for Climate Change and the Environment). 2013. ‘Statement on Coalition comments on carbon tax repeal’, media release, 15 October 2013, accessed 17 March 2014; referred to in Talberg, A. et al., 2014, Clean Energy Legislation (Carbon Tax Repeal) Bill 2013, Bills Digest No. 16, 2013–14, p.11

[16] Australian Electoral Commission v Johnston [2014] HCA 5

[17]Ibid. Hayne J at [122] to [123]

[18] Terms of Service are due to expire 30 June 2014 for Michaelia Cash, Alan Eggleston and David Johnston – all Liberal members.

[19] Terms of Service are due to expire 30 June 2014 for Louise Pratt and Mark Bishop – both Labour members

[20] Scott Ludlam’s Term of Service is also due to expire on 30 June 2014

[21] Law School, University of South Australia

[23] Fowler, Robert (Adjunct Professor). 2014. ‘Mahla Pearlman AO Oration 2014’. Speech presented at the Law Council of Australia, Sydney

[24] Fowler, Robert (Adjunct Professor). 2014. ‘Mahla Pearlman AO Oration 2014’. Speech presented at the Law Council of Australia, Sydney