environmental legislation

Diploma of Environmental Monitoring & Technology

Study module 1 Environmental legislation

Environmental

management systems

Completion Record

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EMS Study module 1 – Environmental legislation

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INTRODUCTION 2

Sustainability & environmental management 2

The role of the environmental technician 3

The reason for monitoring 4

AUSTRALIA’S ENVIRONMENTAL LAW FRAMEWORK 4

Council of Australian Governments 6

Environmental control under the Federal Constitution 7

Environmental control under State Constitution 7

Environmental control under Local Government 8

LEGISLATION & REGULATIONS 8

Common Law & the Court System 9

Codes of Practice & Standards 9

The relevant legislation for environmental technicians 11

ASSESSMENT TASK 12

ASSESSMENT & SUBMISSION RULES 15

References & Resources 16

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Introduction

The human population is growing, and so is the development that comes with it. This

development requires resources which must be taken from the Earth, and some of the

resources are in short supply, or finite, and some are easily supplied, or infinite.

As we exploit these resources, environmental harm is inevitably caused (although we are

getting better at controlling it). The harm that is caused, which you would undoubtedly be

familiar with includes general littering, chemical pollution and loss of biodiversity. The

processes used in attempting to control these negative effects is referred to as

environmental protection, and it is in this capacity that creates the role of the

environmental technician, that is, you!

Sustainability & environmental management

There are two terms you need to be familiar with. These terms are used interchangeably,

and that can lead to some confusion, further, the two terms are sometimes used as subsets

within each other which can also add confusion, so I want to clarify from our teaching

perspective what these terms are; sustainability and environmental management.

A common definition of sustainability is;

“Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs”

A common definition for environmental management is;

"…a purposeful activity with the goal to maintain and improve the state of an environmental resource affected by human activities"

Historically speaking, in our modern society, environmental management arrived before

sustainability, but from 1987 to 1992, and since, there were considerable international

developments in relation to our ability to live as we were forever, and so modern

sustainability was borne. Since then, there has been some jostling about the two aspects of

management and it would now appear that environmental management is embedded, or

has become a subset of, sustainability.

Sustainability is taught in a separate resource; ‘Sustainability for Technicians’. You can

access this resource on the sections website at www.cffet.net/env/cert-4/sust.

The point is that we need to manage our resources, and the environment that they come

from, and this management of protecting natural resources is generally referred to as

environmental management. It is this management of our environment that is the topic of

this resource. What you will learn is the role of environmental management in Australia, and

more importantly, how this management relates to you, the environmental technician.




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The role of the environmental technician

The technician plays a key role in the protection of the environment from an environmental

management perspective as they take the samples and collect data that is used in the

decision making roles from the planning stages of a development all the way through to

determining levels of pollution for load based licenses.

The technicians role is particularly interesting because everything they do is always related

(in some way) to;

◗ International principles of quality (ISO 9000 and 14000)

◗ Current best scientific practice

◗ Legislation and management

The work that the technician does will quite often lead to change, good or bad, so there is a

lot riding on the quality of the work that you do, the responsibility of which is often

understated by those in management.

From sample to decision

So let’s take a look from a technician’s hypothetical view of environmental management.

Most of the time it will be your job to go to a site and collect field data or take samples from

which data are collected by a lab.

The field or lab data is considered ‘raw’ and will need to be ‘treated’ to make it usable. The

usable data is usually compared to something to make sense of the data. This could be;

◗ license criteria (EPA or Primary Industries) to determine compliance or,

◗ historical data from the same or similar location to determine trends and patterns

or,

◗ Guidelines, such as ANZECC or NEPM values (explained later) to see if it fits within

the range of tolerance.

The compared data will now be used to make a decision. This decision could be for;

◗ Approval or disapproval of a planning proposal worth several millions of dollars

◗ A scheduled activity issued with load based licenses by the EPA

◗ A pollution incident where fines with the possibility of jail time for the offenders

All of this from a sample or data that you collected! It could be worse. Medical technicians

determine whether people have terminal diseases. Industrial quality technicians determine

whether a chemical or product will poison or kill whoever uses it. So all in all, environmental

technicians may just cost money or jail time!




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The reason for monitoring

Up to now, we haven’t explained the real reasons that this monitoring occurs. We have

stated that it is because pollution (or other impacts) needs to be monitored, but the need

for this monitoring occurs for different reasons at different times. The two primary reasons

for environmental compliance monitoring are;

◗ The planning of new infrastructure projects in society, and

◗ Protecting the environment from infrastructure that is operational

Complying with environmental planning is completely different ‘set of equations’ to

environmental protection, involving different laws, different reasons and a completely

different mindset. All of this is explained in later chapters of these notes.

So where exactly do environmental management plans fit into all of this. Previously we

mentioned the role of the technician, but how does the technician know the ‘who-what-

when-where-how’ of the monitoring required? That is what the purpose of the EMP is, as it

will detail every conceivable aspect (including many items not pertaining directly to the

technician’s role).

Australia’s Environmental Law Framework

You are not training to be lawyers, so this section will be kept to a minimum. In the

environmental context, some groups want everything to be conserved in its natural form,

others want to shoot everything that moves and dig up/chop down everything that doesn’t,

while others in the middle believe that there is a compromise between development and

conservation, but the reality is that you get employment in this industry because of two

reasons only;

◗ Environmental planning laws, and,

◗ Environmental protection laws

And that is what we shall focus on with special attention on which legislation attracts

particular interest from a compliance point of view. Before we begin, you should know a few

basics about law in general in Australia.

One of the main reasons that governments of all levels exist is to pass laws: rules governing

the way that individuals and organisations are supposed to behave. The inevitable

consequence of a law is the need for the government to create a system to administer the

law. Administering the law means two separate processes: monitoring compliance with the

law (e.g. police) and punishing those found to transgress the law (the courts).

Figure 1.1 summarises the three stages of the legal process that exist. Note that this is a

very broad and simplified view of a very complex framework.




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Figure 1.1 – Generalisation of the environmental legal process in Australia

Beware of changes to the law! Our whole legal framework is a ‘work in progress’ and as

such it is very hard for any written document such as this to remain current for long. Always

check to see if particular aspects are current (see References & Resources).

Constitutions

Australia’s Federal Constitution was given Royal Assent on the 9th of July 1900 (our official

Constitution Day), coming into force on the 1st of January 1901. It was amended twice by

the Statue of Westminster (1931 & 1942) which ‘freed’ us a little bit from Britain, and again

with the Australia Act of 1986, which freed us from Britain from a legal perspective, but we

still remain a member of the British Commonwealth.

The Constitution is Australia’s rule book for the construction of government, parliament and

law and is structured as follows;

◗ Constitution

◗ Monarch and Governor General

◗ Government (consisting of the Prime Minister and Cabinet Ministers

◗ Legislature (Parliament with Senate, House of Representatives)

◗ Judiciary (Chief Justice, High Court, Supreme Courts, Lower Courts)

◗ States & Territories

This structure identifies the three levels of Australia’s Government;




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◗ Federal (national)

◗ State

◗ Local (implemented by the States)

It is from these three levels of Government that all Laws are made and administered

throughout the land, including environmental legislation that you need to know.

Council of Australian Governments

Along with the Constitutional structure stated above lies the key mechanism of change

when dealing between the Federal and State Governments, the Council of Australian

Governments (COAG). At these meetings there is a lot of discussion about the division of

power between the two tiers of Government, and it was COAG 1992 where the most

current division of power that relates to the environment was decided.

Intergovernmental Agreement on the Environment 1992

So what do the Constitutions say about environmental responsibility? Well, not much. The

constitution is more about explaining the role of the tiers of government, not the specific

legislation (that comes next). This means there must be other mechanisms that trigger

environmental legislation.

Although the Commonwealth’s jurisdiction over environmental issues does come from the

Australian Constitution, it does not explicitly give the Commonwealth Parliament the power

to make environmental laws, and as such, the Commonwealth’s environmental powers (to

date) are the result of three major drivers;

◗ High Court decisions

◗ Complying with international conventions

◗ COAG Agreements

The most significant of these mechanisms of change (that directly relates to technicians) is

the latter point. The key agreement that arose out of COAG 1992 was the

Intergovernmental Agreement on the Environment 1992 (IGAE). This resulted in major

divisions of power between the State and Federal Governments.

Figure 1.2 – the High Court of Australia




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Environmental control under the Federal Constitution

Section 2 of the IGAE states that;

“...responsibilities and interests of the Commonwealth in safeguarding and accommodating

national environmental matters include:

(i) Matters of foreign policy relating to the environment...are met by Australia

(ii) Ensuring that the...practices of a State do not result in significant adverse external

effects in relation to the environment of another State

(iii) Facilitating the co-operative development of national environmental standards and

guidelines”

Generally speaking, the COAG IGAE stated that the Commonwealth’s responsibilities

included the management of living and non-living resources on land which the

Commonwealth owns. This is quite a broad charter, and to this day does pose unique

management problems; especially in relation to International conventions are discussed

later.

Environmental control under State Constitution

The important outcome for the States was that they were given freedom to develop a

legislative framework to protect the environment. This still had to conform with the

Commonwealth’s Ecologically Sustainable Development approach, as well as lead to the

implementation of international conventions, but all in all gave the states freedom to fit the

environmental legislation into their economic, legal and planning models.

Specifically, the IGAE provides that States have responsibility for:

◗ developing and implementing policy in relation to environmental matters

◗ the policy, legislative and administrative framework within which living and non-

living resources are managed within the State

◗ developing Australia’s position in relation to any proposed international agreements

of environmental significance which may impact on the discharge of the State’s

responsibilities

◗ participating in the development of national environmental policies and standards

The key point to know about our Federal and State constitutions is that the ‘bulk’ of

environmental responsibility and power for environmental protection rests with the States

and Territories and the key power and responsibility for environmental sustainability lies

with the Federal Government.




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Environmental control under Local Government

The IGAE also provides that Local Government has a responsibility for;

‘…the development and implementation of locally relevant and applicable environmental

policies within its jurisdiction in cooperation with other levels of Government and the local

community…’

And an interest in:

(i) The environment of their localities and in the environments to which they are linked

(ii) The development and implementation of regional, State wide and national policies,

programs and mechanisms which affect more than one Local Government unit.

Understand that there are many other aspects of environmental control that both State and

Local governments can use an incorporate into the management structure, which will be

illuminated in later sections.

Legislation & Regulations

The key items that create work for environmental scientists, managers and technicians are

environmental legislation and their associated regulations. These range across all three

levels of government, and even include some international conventions, but mainly with

sustainability aspects such as carbon emissions. At this point we need some definitions.

Legislation is defined as;

“Laws made by Parliament or by people who are given power by Parliament to make laws,

such as a Governor.”

Broadly, there are two kinds of legislation; Acts and subsidiary legislation.

Acts

These are laws Parliament has enacted. Sometimes Acts are called ‘Acts of Parliament’. Less

often Acts are called ‘primary legislation’ to distinguish them from subsidiary legislation.

Usually they each have the word ‘Act’ in their title.

An Act has to be read with any subsidiary legislation that has been made using powers in the

Act to make subsidiary legislation. Subsidiary legislation will often fill in details not covered

by the Act under which it is made. Not all Acts have or need subsidiary legislation.

Regulations & Subsidiary legislation

Regulations are the ‘toolbox’ of the Act. They are documents that explain how the law is

enforced or enacted. These are laws made by people using powers that Parliament, by




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means of its Acts, has given them. Sometimes these laws are called delegated legislation or

subordinate legislation. Subsidiary legislation has various names, which do appear in its

titles, such as;

◗ regulations

◗ local laws

◗ by-laws

◗ planning schemes

◗ rules

Common Law & the Court System

The coal face of law is found from the decisions made by judges after laws (and their

meaning) have been argued in court. This aspect of law is sometimes referred to as common

law or case law.

Legislation and the common law exist side by side. Legislation prevails over the common law

if there is a conflict between them. However, the common law can and does affect

legislation and legislation can and does affect the common law.

The result is there are some cases that can be used whenever interpreting legislation and

others that each relate to only a particular provision.

Codes of Practice & Standards

When further explanation of Acts and Regulations are required, such as specific details or

methodologies on how to undertake certain activities, another two other types of

documents can be used; Codes of Practice and Standards

Codes of Practice

These types of documents are found in every field of industry and form an instructional

backbone for certain activities including areas such as Workplace Health & Safety in which it

is a statutory application. One definition of a Code of Practice (CoP) is;

“A set of guidelines and regulations to be followed by members of some profession, trade,

occupation, or organisation, and may or may not have the force of law.”

CoP’s can range in complexity and detail form general guidance issues for the management

of a topic, to explicit methods of practice for technical operations. They are freely available

on the internet, and only apply to Australian workplace conditions.

Codes of Practice do not typically invoke or are covered by publishing licenses and as such

are (usually) freely available from their producer under what is termed a ‘Creative Commons

License’ where the only requirement is acknowledgement of the author(s).




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Standards

These are similar to CoP’s, but focus mainly on technical detail. Standards are published

documents setting out specifications and procedures designed to ensure products, services

and systems are safe, reliable and consistently perform the way they were intended to. They

establish a common language which defines quality and safety criteria. Standards can be

guidance documents including:

◗ Australian Standards

◗ International Standards (ISO) and Joint Standards (AS-NZS)

◗ Codes

◗ Specifications

◗ Handbooks

◗ Guidelines

These documents are practical and don't set impossible goals. They are based on sound

industrial, scientific and consumer experience and are constantly reviewed to ensure they

keep pace with new technologies. They cover everything from consumer products and

services, construction, engineering, business, information technology, human services to

energy and water utilities, the environment and much more.

Australian Standards are licensed documents through Standards Australia and are available

from the Hunter TAFE Library website to all current students. Only two licenses are available

at once.

Hierarchy

Standards and Codes of Practice do not have a specific ranking, but generally speaking, a

Code of Practice will reference an Australian Standard and not the other way around. The

other consideration is whether they are considered ‘statutory’ or not, that is to say, whether

the Act or Regulation specifically states that the use Code of Practice or Standard is a

requirement of the law to use (another term is force of law).

If they are not specified in the legislation, then Codes of Practice and Australian Standards

are considered guidelines of current best practice (CBP) and are generally considered the

minimum quality benchmark to be applied, and if they are of equal ranking, a CoP will

usually be more ‘overarching’ than the Standard..

Guidelines

These guidelines are different to CoP’s and Standards in that they never have force of law

and offer administrative or technical information to an area that is otherwise reliant on

general knowledge of its practitioners.




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Another reason guidelines exist is to allow the ability to harmonise an area with other

statutory bodies either locally or internationally. An example of this can be found with

Australian Drinking Water Guidelines, which aims to provide Australian potable water works

with a set of values to which they can attempt to perform to. If they do, then they have met

an internationally recognised set of guidelines, but there is no legislative requirement to

meet the guideline performance values, as each areas water quality is different (in some

cases better). Guidelines are easily found on the internet, some random examples of

environmental guidelines include the National Water Quality Management Strategy

Guidelines, which in itself consists of over thirty documents including;

◗ Australian Drinking Water Guidelines

◗ ANZECC Guidelines

◗ Environmental guidelines for the Australian egg industry

◗ Australian Guidelines for Water Recycling

◗ Contaminated Lands Management Act Guidelines (EPA, set of 9)

◗ National Environmental Protection Measure Guidelines (too many to list)

And the list goes on…

The relevant legislation for environmental technicians

There is a lot of legislation out there, but luckily you don’t need to know all of it. The

following table attempts to provide you with a categorised list of the relevant legislation

that you should be familiar with.

Government Tier Planning based legislation Protection based legislation

Federal Environmental Protection & Biodiversity Conservation Act 1999

National Environmental Protection Council Act 1994

State (NSW)

Environmental planning & Assessment Act 1979

Protection of Environment Operations Act 1997

State Environmental protection policies (SEPPS)

Contaminated land Act 1997

Regional Environmental Plans (REP’s, replaced by SEPP’s)

Threatened Species Conservation Act 1995

Waste Avoidance & Resource Recovery Act 2001

Local Development control plans

By-laws

Table 2.1 – Important legislation relating to environmental technicians. There is an enormous

amount of other legislation out there which you will eventually experience!




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Assessment task

This section provides formative assessment of the theory. Answer all questions by typing

the answer in the boxes provided. Speak to your teacher if you are having technical

problems with this document.

Type brief answers to each of the questions posed below.

All answers should come from the theory found in this document only unless the

question specifies other.

Marks shown next to the question should act as a guide as to the relative length or

complexity of your answer.

1. Very briefly, in your own words, remind your assessor of the inevitable consequence of

human society not being sustainable. [1mk]

Click here to enter text.

Assessor feedback

2. Generally speaking, and in your own words, what is the difference between the concepts

of ‘sustainability’ and ‘environmental management? [2mk]


Assessor feedback

3. List the three types of decisions that data collected by environmental technicians can be

used in making. [1mk]


Assessor feedback




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4. What are the two main reasons for monitoring of the environment? [1mk]


Assessor feedback

5. Generally speaking, environmental law falls into two categories of reasons. List these

reasons. [1mk]


Assessor feedback

6. Under which agreement was governmental environmental responsibility determined?

[1mk]


Assessor feedback

7. List the three major drivers that determine Commonwealth environmental

responsibility. [1mk]


Assessor feedback

8. Identify two State level environmental responsibilities under the IGAE. [1mk]





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Assessor feedback

9. Although the Local tier of government is not constitutional, how was local Government’s

environmental responsibility defined under the IGAE? [2mk]


Assessor feedback

10. Generally speaking, what is the difference between an ‘Act’ and a ‘Regulation’? [2mk]


Assessor feedback

11. What is the Court’s role in environmental management? [2mk]


Assessor feedback

12. Identify the key planning and protection legislationat both the Federal and State (NSW)

tiers of Government (four acts all up) [1mk]


Assessor feedback




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Assessment & submission rules

Answers

Attempt all questions and tasks

Write answers in the text-fields provided

Submission

Use the documents ‘Save As…’ function to save the document to your computer

using the file name format of;

Yourname-EMS-SM1

email the document back to your teacher

Penalties

If this assessment task is received greater than seven (7) days after the due date, it

may not be considered for marking without justification.

Results

Your submitted work will be returned to you within 3 weeks of submission by email

fully graded with feedback.

You have the right to appeal your results within 3 weeks of receipt of the marked

work.

Problems?

If you are having study related or technical problems with this document, make sure you

contact your assessor at the earliest convenience to get the problem resolved. The contact

details can be found at;

www.cffet.net/env/contacts




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References & Resources

References

You are not required to read these references unless the question you are answering

requires it. Note that some of these resources might be available from the links provided in

the resources (below), your teacher or the library.

Bates, G. (2010). Environmental Law in Australia. Australia: LexisNexis-Butterworths. EDO, NSW. (2005). Environmental law Toolkit - NSW. 5th Ed. Sydney, Australia: The

Federation Press. Farrier, D. (. (2011). The Environmental Law Handbook. Sydney: Thomson Reuters. Fisher, D. (2010). Australian Environmental law: norms, Principles and Rules. Australia:

Lawbook Company. Lipman, Z. E. (2009). Environmental and Planning Law in New South Wales. Sydney,

Australia: The Federation press. StandardsAustralia. (2004). AS/NZS ISO 14001:2004 Environmental Management Systems:

Requirements with guidance for use. Australia: Standards Australia.

Resources

Information on environmental law can be found at the EDO here.

Current Commonwealth legislation can be found here.

Current State legislation can be found here.

NSW environmental planning materials can be found here.

NSW environmental protection information (EPA) can be found here.

Commonwealth EPBC Act website is here.

Local Government information can be found here.


http://www.edonsw.org.au/

http://www.comlaw.gov.au/

http://www.legislation.nsw.gov.au/

http://www.planning.nsw.gov.au/

http://www.epa.nsw.gov.au/

http://www.environment.gov.au/topics/about-us/legislation/environment-protection-and-biodiversity-conservation-act-1999

http://www.lgnsw.org.au/

environmental legislation

Documents

environmental control

environmental resource

environmental technicians

environmental harm

environmental protection

food environmental technology

modern sustainability

aspects of management