Independent Review of the National Environment Protection Measures (Implementation) Act 1998 (Cth)
Baker and McKenzie, 2005
Background to the Independent Review
This report constitutes the independent review of the National Environmental Protection Measures (Implementation) Act 1998 (Cth) ("the Act") as required under section 43 of the Act. Section 43 requires the review of:
- the operation of the Act; and
- the extent to which the policy objectives of the Act remain valid; and
- whether the provisions of this Act remain appropriate for the achievement of those policy objectives.
Section 3 of the Act states that the objectives of the Act are:
- to make provision for the implementation of national environment protection measures in respect of certain activities carried on by or on behalf of the Commonwealth and Commonwealth authorities; and
- to protect, restore and enhance the quality of the environment in Australia, having regard to the need to maintain ecologically sustainable development; and
- to ensure that the community has access to relevant and meaningful information about pollution.
In undertaking this review, the Department of the Environment and Heritage ("DEH") requested the following additional matters to be considered:
- The effectiveness of the operation of the Act, including:
- simplicity and workability in providing for the implementation of national environment protection measures (NEPMs) with respect to activities carried on by or on behalf of the Commonwealth and Commonwealth authorities;
- in ensuring that the Commonwealth and Commonwealth authorities comply with NEPMs; and
- issues arising from matters in points 2 and 3 following.
- The extent to which the policy objectives of this Act remain valid.
- Whether the provisions of this Act remain appropriate for the achievement of its policy objectives, including:
- comprehensiveness in enabling implementation of all NEPMs that are relevant to the Commonwealth and Commonwealth authorities in their achievement of the policy objectives of the Act, including considering whether the following matters limit the ability of the Commonwealth to implement NEPMs under the Act;
- the definition of ‘activity’ in the Act;
- other aspects of the Act; and
- features of NEPMs themselves;
- any unanticipated ramifications of the operation of the Act, for example, when States and Territories:
- do not have legislation and regulations in place to implement a NEPM ;
- periodically amend legislation and regulations that implement NEPM s; or
- implement a NEPM through non-legislative means such as policy measures or guidelines; and
- taking into account the national nature of the activities of the Commonwealth and Commonwealth authorities, any unanticipated ramifications of the operation of the Act arising from ‘dis-applying’ (or switching off) provisions of State and Territory law implementing a NEPM in relation to activities carried on by or on behalf of the Commonwealth or Commonwealth authorities, and then allowing the implementation of the NEPM through other provisions of the Act.
- comprehensiveness in enabling implementation of all NEPMs that are relevant to the Commonwealth and Commonwealth authorities in their achievement of the policy objectives of the Act, including considering whether the following matters limit the ability of the Commonwealth to implement NEPMs under the Act;
- Where the review identifies any deficiency in the operation of the Act, the review will identify:
- feasible alternatives to the current legislative provisions;
- the different stakeholders likely to be affected, and how they may be affected by the alternatives;
- effects of the alternatives; and
- options for a future course of action.
To address all the required issues in the scope of the review, the report is set out in the following manner:
- An executive summary of the findings of the independent review;
- Background to the Act, providing a brief overview of the NEPM regime of which the Act is part;
- An assessment of the operation of the Act and its effectiveness in ensuring that the Commonwealth and Commonwealth authorities comply with NEPMs.
- Consideration of the extent to which the policy objectives of the Act remain valid, in the light of the National Environment Protection Council Act 1994 (Cth) and the Intergovernmental Agreement on the Environment 1992.
- Consideration of the extent to which the provisions remain appropriate for the achievement of the policy objectives of the Act, relevant legal developments impacting on the operation of the Act and the extent of Commonwealth immunity from the application of State laws generally.
- A brief summary of the deficiencies of the Act, and a broad overview of feasible legislative alternatives to address such deficiencies, including the impacts of adopting such alternatives.
The review was overseen by a steering committee of senior officers from the Department of the Environment and Heritage, the Australian Government Solicitor and the Department of Transport & Regional Services.
Interviews with the following Commonwealth and State government entities and their respective representatives, staff and/or employees were undertaken in conducting this review:
- Australian Communications Authority;
- Department of the Environment and Heritage;
- Department of Defence;
- Australian Institute of Marine Sciences;
- Australian Nuclear Science and Technology Organisation;
- Australian National University;
- Department of Transport and Regional Services;
- New South Wales Environment Protection Agency;
- Queensland Environment Protection Agency; and
- Telstra.
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