65rejecting or accepting a particular application.

The Audit Office of New South Wales considered that there were a number of factors that contributed to a lack of transparency in the assessment process in that State. These factors included that internal staff guidelines for assessment, and detailed assessment reports on decisions, were not made available to the public and that there were no public hearings for major proposals (AONSW 2002).

In South Australia, operation of the Native Vegetation Act 1991 (NV Act) has been criticised for a lack of transparency (Elliot 1999a). The Act was amended in 2002, in part, to ensure that the process of permit approvals for native vegetation follows a more transparent process, including allowing public comment in relation to the granting or refusal of consent to an application to clear native vegetation.

The WA Government considered that recent amendments to the EP Act will contribute to a more open decision-making process:

The new legislation will require proposals to clear native vegetation to be advertised, and submissions from the public to be considered. All decisions will be made public, along with the reasons for the decision and proponents and third parties may appeal these decisions. This will allow third parties to obtain information regarding permits and decisions and submit appeals and comments. (sub. DR290, p. 14)

A lack of transparency appears to have contributed to perceptions of inconsistency in the determination of applications in a number of jurisdictions (box 3.4). Assessment processes were also criticised for using policies or decision-making rules that were not clearly articulated in the relevant legislation or supporting policy documents. In some jurisdictions, participants considered officers administering the regulations had too much discretion in interpreting and applying regulation.

In New South Wales, Mark Drury provided an example of apparent inconsistent application of regulations in regard to the need for exemptions to clear certain types of native grasses:

… the fact that [the requirement to submit a clearing application] has been applied differently in different regions by different representatives of the one regulatory authority is surely a matter of great concern … Representatives from the Department of Land and Water Conservation [DLWC] … operating in the northern part of my organisation’s operating area were requiring clearing applications to be submitted before any form of clearing could be undertaken on native grasses when representatives in my area of working were allowing clearing of such grasses under exemptions set out in the NVC Act. Surely this is not an acceptable approach to applying this legislation as inconsistency undermines the legitimacy of the legislation. (sub. 217, p. 2)

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the policy, under NV Act, of allowing clearance in particular cases with ‘a requirement to compensate the environment for the losses associated with the clearance’, had been more broadly applied than the legislation allowed:

The development of this policy is a good example of lapses in accountability with regard to administrative standards which is a charge often levelled at the NVC and its Officers. It is a feature of law that administrative policy may not exceed the powers of the parent Act or its associated regulations. The development and implementation of this policy is a clear example [of] where the principles of proper administrative behaviour have been breached. (sub. 140, p. 11)

Box 3.4 Participants’ views on consistency of permit processes

The Victorian Farmers Federation:

The regulations appear to vary significantly from Shire to Shire, and region to region, depending upon the way in which Department personnel or Shire planners are willing to interpret them. (sub. 149, p. 11)

Murray Irrigation Ltd (New South Wales):

… there is a lack of consistency in the treatment of different applications for vegetation removal/clearing … Whilst flexibility is an important component in assessment, inconsistent interpretations and administration is not desirable, and leads to further frustration within the community. (sub. 79, p. 1)

Ron Hawkins (West Wimmera Shire Council, Victoria):

… problems arise when referral bodies take on more authority than their charters warrant, when they attempt to regulate where they are entitled only to advise. Also, farmers should be able to rely on consistency in permit application outcomes — this consistency is too frequently lacking in referral authority advice and requirements. (sub. 111, p. 1)

Peter Weston (New South Wales):

The [DIPNR’s] inconsistency and consent process and the time lag is quite unacceptable. We’ve got an example … [where] they’ve allowed a family to take out individual trees across the landscape … yet another chap up the road, who’s got 8000 acres of encroached timber, made an application to clear 600 acres to try and get some degree of drought control … he got denied [completely]. He could not disturb a tree. (trans., p. 1284)

Bruce Meyer, a Councillor with the West Wimmera Shire Council (Victoria), considered that broadly-worded regulations allowed too much discretion to those administering the legislation:

… exemptions need to be spelt out more clearly as the [DSE] often try and interpret what they mean, and try to put their own slant on it. Replacement numbers for removal also need to be better spelt out as there is a continual upward movement. Replacing 1 tree with 30 others makes the operation unviable, with no consideration given to other

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not spelt out in the Act but are the policy of the individual [DSE] branches, leading to much confusion. (sub. 112, p. 2)

Similarly, in Tasmania, the Southern Midlands Council argued that application of the Regional Management and Planning System (RMPS) had given too much discretion to administrators in the development and implementation of legislation:

… independent and non-democratically accountable bodies within the RMPS are forced to make ‘informal’ state policies. Such policies, on occasion, result in the removal of the rights of citizens. It is often highly questionable whether State Parliament intended such rights to be removed when it set the overarching ‘sustainable development’ objectives for the RMPS. In other words, too often there is no clearly traceable link between actions ‘on the ground’ that remove the rights of citizens and the intent of their elected representatives. (sub. 166, p. 4)

FINDING 3.6

In several jurisdictions, a lack of published guidelines and the absence of publicly- available information about the rationale for decisions on clearing applications, have encouraged perceptions of inconsistency in the decision-making process.

Consideration of economic and social factors in the application process

There is variation across jurisdictions regarding the requirement to consider the economic and social aspects of applications to clear native vegetation. Variation also exists in the extent to which economic and social considerations need to be considered in the application of regimes within a jurisdiction.

In Western Australia, under the Soil and Land Conservation Act 1945, the focus of the regime is on attaining environmental objectives and there is no formal requirement for economic and social aspects to be considered in the assessment of applications. The WA Government (sub. 151, p. 6) stated that environmental considerations generally are not balanced against economic and social considerations when assessing rural clearing proposals. However, recent amendments to the EP Act in Western Australia, recognise the need to address the ‘social and economic impacts of protecting the environment’ when assessing clearing applications (WA Government, sub. DR290, p. 15).

In South Australia, under the NV Act, the Native Vegetation Council considers the extent to which its decision may affect the viability of the property. However, in both Western Australia and South Australia, a lack of consideration of economic and social aspects was raised by participants.

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… the current legislation does not provide for … social, economic and environmental benefits … It seems that the current landholders are being penalised for excessive vegetation clearance that has been undertaken over previous years. (trans., p. 444)

The Shire of Dandaragan (Western Australia) argued that:

… little or no weight is given to these assessments if indeed they are ever carried out. The Western Australian Commissioner of Soil and Land Conservation does not balance the likelihood of land degradation resulting from the proposed clearing against the social and economic benefits that may result from the clearing. (sub. 191, p. 4)

The WA Government (sub. DR290) noted that the Commissioner of Soil and Land Conservation does not have the authority to consider the social and economic benefits of a clearing proposal.

Some regimes have as their objective the sustainable use of natural resources. In a number of these, there appears to be an implicit requirement to consider economic and social aspects when assessing applications to clear native vegetation.

In Tasmania, an objective of the FP Act is to achieve ‘sustainable management of State and crown forests’ (Schedule 7). Threatened species legislation in Tasmania has more explicit environmental objectives, but these are to be pursued within the context of the objectives of the State’s planning system, the RMPS. One objective is to ‘facilitate economic development’ in accordance with the sustainable use of the State’s natural and physical resources. Planning legislation in the Northern Territory has a sustainable resource use objective as does the VM Act in Queensland.

In Victoria, vegetation clearing controls are implemented through the State’s planning system, which aims to achieve ‘a sensible balance between economic development, social growth and cohesion and the sustainability of Victoria’s environment’ (Thwaites 1999). However, decisions on individual applications for permits for native vegetation clearance are based on environmental factors.

In Victoria, New South Wales and South Australia, an application to clear may be approved on the condition that the landholder agrees to provide native vegetation ‘offsets’. The offsets are implemented with the objective of mitigating the environmental impact of the proposed clearing. The VFF observed:

There is no requirement on those who apply native vegetation and biodiversity legislation to assess the cost of their decisions or to balance costs against environmental benefits. The current policy position of the State Government is to produce a ‘net gain’ at any cost. The Federal position through the EPBC Act is also to conserve everything at any cost (even the cost of improved native vegetation management). (sub. 149, p. 10)

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