PROPOSED DISCUSSION STARTER - ENVIRONMENTAL REFORM OF AUSTRALIA'S CONSTITUTION AND GOVERNMENT

Australia's Federal Constitution, legal system and political structures are currently ill-suited to the task of achieving ecological sustainability. The Constitution neither mentions the environment nor assigns a clearly defined power of environmental policy-making to the Commonwealth government. This weakness is exacerbated by aspects of Australian federalism which make co-operation, conflict resolution and policy coordination between different States, and between the States and Commonwealth, difficult to achieve. The parlous state of the Murray-Darling catchment, and the inability of governments to agree on strong long-term policies and strategies for its restoration and management, is a clear example of the environmental consequences of inadequate Constitutional machinery.

Whilst several High Court cases (e.g. the Tasmanian Dams Case) have found that the Federal Government can invoke certain powers under Section 51 of the Constitution to enact environmental policy, successive Federal governments (with the partial exception of the Hawke Labor government) have been reluctant to use such powers, and the Keating and Howard governments have withdrawn from significant areas of Federal environmental responsibility in favour of the States. In the absence of Constitutional reform, measures such as the use of Ministerial Councils, the Inter-Governmental Agreement on the Environment and current Federal initiatives have failed to provide a rational basis for national environmental policymaking.

The Federal Constitution also does not guarantee environmental rights to Australian citizens. It does not provide rights of locus standii to enable citizens to seek legal redress for government neglect of environmental responsibilities. The absence of a Bill of Rights inhibits the ability of citizens to effectively participate politically in decisions affecting their environment. This is exacerbated by other aspects of the current legal system which limit citizens' rights of democratic participation, whilst providing anti-environmental interests with means (such as SLAPP suits and other forms of vexatious litigation) to harass, intimidate and silence citizens and community groups. Finally, most Federal and State parliamentary electoral systems limit the ability of political forces with a central environmental focus to constructively influence the political agenda.

The structures of State and local government also militate against good environmental management. State boundaries do not reflect catchment, bioregional or other ecological realities. Local government has no Constitutional standing; its structures and powers vary greatly from State to State, and, with the partial exception of Queensland, do not enable it to effectively make and implement sound environmental policy or to resist pro-development interests. The financial bases of State and local government (the former depend heavily on royalties from resource development, the latter on residential rates) provide perverse incentives which favour unsustainable development.

At all three levels of government, pro-development Ministries, departments and agencies (e.g. Minerals & Energy, Primary Industries, Natural Resources, Transport) are central to the structures of executive government and administration. Environmental departments and agencies are usually peripheral, and there is little provision for "whole-of government" approaches to sustainability, for integration of ecological considerations into general policymaking and administration, or for improved co-operation between environmental and developmental agencies. Whilst most areas of public policy have significant environmental consequences, the current machinery of government in Australia does not permit these to be considered except reactively or as an afterthought.

Discussion Questions:

1. Should the Federal Constitution assign an environmental power to the Federal Parliament and government? What matters should be covered by the Federal environmental power? Should it also make provision for State environmental responsibilities? What other ways are there to rationally allocate environmental powers between State and federal governments?
2. What environmental rights, and rights of environmental public participation, should be enacted either through a Constitutional Bill of Rights or by Statute? What legal reforms should be introduced to prevent the use of strategic and/or vexatious litigation to suppress community opposition to developer interests? Is electoral reform necessary to enable environmental reform of Australian government? If so, along what lines?
3. Should existing State and local governments be replaced by some form of regional government? Should local government be given explicit Constitutional recognition and a Constitutional mandate for local environmental management? What other reforms to State and local government may be environmentally necessary or desirable? Can these levels of government be financed in a way which encourages good environmental policy?
4. What is the best way to achieve a "whole of government" approach to ecological sustainability? Should separate Environment Departments be retained or should developmental departments be restructured with the aim of making ecological principles central to their operations? Should Commissioners for Sustainability/Offices of Ecologically Sustainable Development be established in State and Federal government? Should Environmental Protection Agencies be established as independent Statutory Authorities directly accountable to Parliament, rather than subject to Ministers? Should all public policy be subject to Environmental (Impact) Assessment?