National Environmental Law Association Conference October 2014

Transcription

1 National Environmental Law Association Conference October 2014

2 Photo credit: unknown ( /Pea-souper-killed So-blackscreen-cinemas-So-suffocatingly-lethal-rancoffins-How-Great-Smog-choked-London-60- years-ago-week.html) Term environment used on 2805 sitting days of WA Parliament (from 1888) 393 of these days prior to 1964 Term environment protection or environmental protection used on 1697 sitting days (but none before 1970) Clean air occurs on 298 sitting days between 1924 and 1995 why does it disappear in 1995?

3 Main environmental emphasis is on occupational health Few, if any, familiar with the conditions of modern industrial life will maintain that this duty (of protecting the worker) has been placed first, and before the requirements of the process and the machine. Where the machine has required space, the worker has shared it, where the process has required light, the worker has been allowed it, where dust spoilt the product, the worker has breathed a clean atmosphere; but the provision of space, light, or clean air for the worker, as a delicate living organism, has not been a first consideration, and he has been expected to live where less delicate vegetable life would decline to exist. Dr Collis quoted in Hansard 15 October 1924 Workers Compensation Act Amendment Bill In Committee

4 Air pollution spread amongst multiple legislation with different standards and approaches six different statutes administered by five different authorities or departments Inadequate provisions to prevent and control emissions and pollution piecemeal nature no clear-cut attempt to set up standards or guide industry as to what is required of it establishes controls after the event, rather than at prevention of the event

5 The inadequacy of the existing arrangements The desire to have a single agency responsible for administration of consolidated air quality legislation Views that there were potential pollution issues occurring in Perth The expansion of Perth and Western Australia Kwinana Mining boom Stephenson-Hepburn plan Opportunity to plan for new plant at installation to meet the requirements of the Act rather than retrofit

6 Long title: An Act relating to the Prevention and Reduction of Air Pollution and for incidental and other purposes Establishes an Air Pollution Control Council to advise the Minister and make decisions Establishes a Scientific Advisory Committee to investigate problems of air pollution and to report to and advise the council Sets up a schedule of premises which are required to be licensed Has general offence provisions for nonprescribed premises e.g. no dark smoke

7 First dedicated environmental protection legislation in Australia Never proclaimed (change of government meant that Environmental Protection Act 1971 was enacted by the Tonkin Government) Elements of the earlier legislation, such as broadly based advisory group substantially incorporated into the new legislation

8 Establishes a statutory EPA Its powers include the specification of standards and criteria, publication of model by-laws for adoption by local government Coordination of all activities as are necessary to protect, restore, or improve the environment Second reading speech emphasises important role of formulating Environmental Protection Policies No mention of environmental impact or environmental assessment

9 Feature Approach Advisory body Clean Air Act 1964 Air Pollution Control Council 15 members, includes many statutory roles in public service Environmental Protection Act 1971 Environmental Protection Authority three members (director of Department, at least one experienced in environmental matters changed to include a legal practitioner of not less than seven years' standing and no public servants) Environmental Protection Act 1986 Five members appointed by the Governor on the recommendation of the Minister on account of their interest in, and experience of, matters affecting the environment following advertisement Increasing professionalism of advisory bodies Move to greater independence from government Move away from separate policy and scientific advisory bodies

10 Feature Approach Functions Clean Air Act 1964 Investigating air pollution, advising the Minister on matters relating to preventing, abating or mitigating or air pollution, and legislation relating to this Council administers the Act and is direct decision-maker on licences Environmental Protection Act 1971 Investigating, reviewing progress on achieving the means of enhancing the quality of the environment and preventing, controlling, abating or mitigating pollution EPA administers the Act Separation of regulatory functions in two Acts maintained until 1986 EP Act EIA without very defined form and process (indicative of its being in developmental stage) No clear separation of department and EPA (occurred in 1993 amendments)

11 Changing definitions give a guide to the evolution of regulatory practices over time Clean Air Act does not define environment, emission or waste and its definition of pollution does not include any consideration of effect 1971 EP Act definition of environment focused on physical factors (with consequences for definition of pollution 1986 EP Act introduces definition of emission and embeds it in regulatory scheme Contrasting definitions of waste

12 Feature Approach Clean Air Act 1964 Makes it an offence be the occupier of a scheduled premises without a licence. Appeals by applicant only to Local Court constituted under the Local Courts Act prescribed premises in schedule Environmental Protection Act 1986 Changing a premises to become a prescribed premises requires a works approval (s 52) Changing equipment etc on a prescribed premises without an approval is an offence (s 53) Causing or increasing an emission or altering a discharge of waste on a prescribed premises without a licence is an offence (s 56) Appeals of conditions by any person and appeals on refusal by applicant to Minister (managed by Appeals Convenor) Prescribed premises 70 in schedule to regulations

13 The history of WA environmental protection legislation continues to influence current approaches Key features have been inherited or adapted from earlier legislation (with mixed success) The use of advisory bodies in WA from 1964 in particular ways has had an effect on our approaches Environmental impact assessment was not clearly in the mind of the framers of the original 1971 Act