Who are the decision-makers?

Responsibility for environmental decision-making is spread across three levels of government - Federal, State and local. Decision-making can also occur across the three branches of government - the legislature, the executive and the judiciary. 

 

The three levels of government

There are three levels of government

  • Australian Government

  • NSW Government

  • Local government

They are responsible for different areas of environmental law. There is some overlap, and in some cases more than one level of government will be required to make a decision about a policy, development, or activity.

 

Australian Government

The Australian Government plays a limited but important role in environmental law. The Australian Constitution does not give the Australian Government direct power to make environmental laws. However, it does give the Australian Government powers to make laws in other areas which have the potential to impact the environment. The most common role the Australian Government plays in legal protection of the environment involves matters of national environmental significance. Under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), the Commonwealth is responsible for regulating matters of national environmental significance. These are:

  • World Heritage sites;

  • National Heritage places;

  • Internationally important wetlands (Ramsar wetlands);

  • Nationally listed threatened species and ecological communities;

  • Listed migratory species;

  • Nuclear actions (including uranium mines);

  • Commonwealth marine areas; and

  • The Great Barrier Reef Marine Park.

Under the EPBC Act, the Australian Government is also responsible for regulating the impact of:

  • Coal seam gas and large-scale coal projects likely to have a significant impact on water resources; and

  • Activities undertaken on land owned by the Commonwealth or activities undertaken by Commonwealth agencies.

A person who wishes to carry out an action that is likely to have a significant impact on a matter of national environmental significance must first obtain an approval from the Australian Environment Minister. The Australian Environment Minister may also decide that an approval is not needed for a particular action.

For more information about the EPBC Act, see our Fact Sheet on the EPBC Act.

Other areas in which the Australian Government plays a role include water management, the Murray-Darling Basin, and clean energy.

 

International obligations

The Australian Government is responsible for implementing Australia's obligations under the many international environmental treaties and conventions which it has signed. Strictly speaking, international environmental treaties and conventions are not a source of environmental law in Australia unless they have been recognised through domestic legislation. Even if an international treaty or convention has been signed or ratified by Australia it is not enforceable until domestic legislation has been passed by Parliament.

The EPBC Act enforces many of Australia’s international environmental obligations, including biodiversity conservation under the Convention on Biodiversity, and the protection of wetlands under the Ramsar Convention. Other important topics covered by the EPBC Act as a result of Australia’s international obligations include the international movement and trade of wildlife under the Convention on International Trade in Endangered Species, and the protection given to whales, particularly in the Australian Whale Sanctuary.

For more information about how international treaties and conventions are negotiated and implemented, visit the Australian Department of Foreign Affairs and Trade website.

 

Departments and Ministers

The Australian Department of the Environment is the main Department at the Commonwealth level with responsibility for environmental issues. The Department's website contains information about the role of the Commonwealth in the administration of matters of national environmental significance.

 

Making submissions to the Australian Government

There are many opportunities for the public to engage in Australian Government decision-making processes. The Environment Department often invites submissions from the public on matters like EPBC Act referrals, proposed plans and policies, legislative reviews, and Parliamentary inquiries.

 

NSW Government

Most environmental law is State based. This is because under the Australian Constitution the Australian Government does not have a specific power to make laws about environmental matters and this power therefore resides with the States. The Australian Government does, however, have some powers to make laws about environmental matters. For more information, see Australian Government.

The State Government is responsible for a great deal of environmental decision-making, including:

  • making environmental laws and policies. There are more than 30 Acts dealing with environmental issues in NSW.

  • setting plans and policies for development, including approving Local Environmental Plans (LEPs) prepared by local councils;

  • approving some types of development;

  • regulating pollution;

  • regulating natural resource management including forestry, mining, fisheries, agriculture and native vegetation; 

  • coastal and marine protection;

  • declaring and managing public protected areas; and

  • listing and managing threatened speciesl

 

There are many pieces of legislation relating to the environment in NSW. This website deals with the principal laws. To see all legislation in NSW, visit the NSW legislation website.

There are various ways to engage in NSW Government decision-making processes.

 

Departments and Ministers

There are several Departments that deal with environmental issues in NSW.

NSW Government Departments have a large amount of online resources available to the public. In addition to this, many Departments have telephone information lines.

 

Making submissions to the State Government

There are many opportunities for the public to engage in NSW Government decision-making processes. Government Departments often invite submissions from the public on things like development applications for major projects, proposed plans and policies, legislative reviews, applications for various licences, and Parliamentary inquiries.

How do I make submissions to a State Government Department?

Keep submissions on-topic. Give insights into analysis or experiences from elsewhere that make your case. Point to innovative ideas. Make your submission short and punchy. Get the reader engaged early.Be objective and outcome focussed. Have a civilised and interesting conversation.Include a summary at the top of your submission.Use headings within your submission to structure your argument.Use clear language. One idea per paragraph. Put your idea in the first sentence, then explain it in the rest of the paragraph.Think about your strategy. What will motivate people?

- Tom Grosskopf, Director Metropolitan Branch, Regional Operations, Office of Environment and Heritage

 

Local Government

Council engages in decision-making that influences environmental outcomes almost on a daily basis. We have in-house expertise but also engage with external partners, including universities, community groups, industry and State Government Departments.

- Jenny Dowell, Mayor, Lismore City Council

Local councils are responsible for a great deal of environmental decision-making, including:

  • the management of public spaces such as community and operational land;

  • waste collection and management;
  • some roads.

Many of the laws that govern local government decision-making are made by the State Government, including the Local Government Act 1993 (NSW). This Act aims to provide the legal framework for an effective, efficient, open, and environmentally responsible system of local government in NSW. The purposes of the Act are to:

  • regulate the relationships between the people and bodies that make up the system of local government;

  • encourage and assist the effective participation of local communities in the affairs of local government; and

  • give councils the ability to provide goods, services, and facilities, and to carry on activities appropriate to the current and future needs of local communities and of the wider public and the responsibility for administering some regulatory systems under the Act as well as a role in the management, improvement and development of the resources of their areas.

Importantly, the Act requires councils, councillors and council employees to have regard to the principles of ecologically sustainable development (ESD) in carrying out their responsibilities. See What is environmental law for a definition of ESD.

The community has many opportunities to influence what the council does. Engaging with your local council can be an important and effective way to influence environmental outcomes. Councillors are elected representatives of the community, and council staff are employed to carry out functions of the council.

There are various ways to engage with your local council.

 

Contacting the council or a Councillor for information and advice

Councillors and council staff are a direct link between the community and local government. Your local council should be your first port of call for questions about things like development applications, local plans and policies, noise complaints, and some pollution incidents. 

Your council’s website will have lots of relevant information about council's environmental management, including plans, policies and opportunities to comment on proposals. 

Most local government information must be made publicly available. See How Do I Gather Information? for more information.

 

Making submissions to your local council

There are often opportunities for the public to influence decision-making by making submissions to your local council. The council often invites public submissions on development applications, policies, use of public land and management strategies. The public are also given an opportunity to comment on proposed and amended Local Environmental Plans.

 

How do I make a submission to council?

Offer constructive criticism. Keep to the topic and be concise in your arguments. Council officers sometimes have to sift through hundreds of letters giving feedback. Short, relevant, and timely points of view are appreciated and have a better chance of being prioritised.

Earn your right to criticise. This means your arguments need to be validated by good quality research and understanding of the subject area which you seek to influence. Make reference to key documents to support your argument rather than relying on personal opinion or hearsay.

Avoid emotive language. Try to remain objective in your assessment of a situation. If it is distressing you or someone else simply state that. If you are passionate about a particular issue try to remain passive in your language and be factual.

- Dr Jenny Scott, Sustainability Program Leader, Ku-ring-gai Council

See How Can I Have My Say? for more information about writing effective submissions, or the topic area relevant to your interests for information about opportunities to have your say.

 

Attending council meetings

Councils are required to notify the public of when and where council meetings are to be held. Copies of the agenda and business papers must be made available. These are often published on a council’s website, and must also be made available at the council chambers as well as at the meeting. Councils are required to meet once a month for ten months of the year.

Council meetings are presided over by the Mayor, and councillors attend. In the Mayor’s absence the Deputy Mayor or another councillor presides over the meeting. Each councillor at the meeting (including the Mayor) is allowed one vote for each decision voted on at the meeting. However, if the votes are equal, the person presiding has a second vote, known as the casting vote.

There is no absolute legal right for members of the community to speak at council meetings. If you wish to speak at a council meeting, your council will have policies about this, including when you must notify the council that you wish to speak, and rules about conduct. For more information about speaking at a meeting, contact your local council.

Councils are able to close discussions at council meetings to the public in limited circumstances. Council discussion about things such as staffing matters, the hardship of a ratepayer, some commercial information of a confidential nature, advice concerning litigation, and information concerning the nature and location of a place or an item of Aboriginal significance on community land can be closed to the public. However, the decisions that Council makes must still be made public.

 

Committees

Councils often have a variety of committees for the purpose of improving community consultation. Committees are groups made up of local residents, and they sometimes include councillors and council staff along with community members. Committees generally meet regularly to discuss issues in the local area or specific issues such as planning and development.

For more information about joining a committee, contact your local council.

 

The three branches of government

In Australia there are three ‘branches’ of government.  The Australian Constitution sets out the powers of the three branches of government – the Legislature, Executive, and Judiciary. See How Does the System Work? for more information.

This applies to both State and national governments. This division is known as the ‘separation of powers’. It is important to know what each branch of government is responsible for so that you know whose decisions you are trying to influence.

Legislature

Makes the law

Executive

Carries out the law

Judiciary

Interprets and applies the law

 

The Legislature

The Legislature is the Parliament. The Parliament is made up of elected representatives. The Upper House is called the Senate at the national level and the Legislative Council in NSW. The Lower House is called the House of Representatives at the national level and the Legislative Assembly in NSW.

The Legislature debates proposed legislation (called Bills) and votes on whether to pass them. The Government is the party with with most members in the Lower House.

 

The Executive

The Executive is the government in power. This includes the Prime Minister at the national level and the Premier in NSW. It also includes all Ministers, Government Departments, including Ministerial advisers and public servants, and the Governor-General at the national level or the Governor in NSW.

The Executive drafts Bills and writes laws, including Acts, Regulations, and policies.

 

 The Judiciary

The Judiciary is made up of the Courts, including Judges, Magistrates, and Commissioners. The Courts relevant to environmental law in NSW include the Land and Environment Court of NSW and the Federal Court, as well as the Local, District, and Supreme Courts of NSW. The High Court is the highest Court in Australia, and is able to hear environmental law matters, although this occurs rarely.

The Judiciary hears cases and interprets and applies relevant laws.

Some environmental decisions are also reviewed by Tribunals. Tribunals do not form part of the Judiciary, at least at the national level, and do not fit neatly into the ‘branches’ of government. While Tribunals look at both the facts and the law when they are carrying out reviews, their decisions do not generally have the same ‘precedent’ value as Court decisions.

 

Conduct of Ministers, MPs, appointees, and Department staff

Australian Government

Members of Parliament are elected representatives of the community, and Department staff are employed to provide advice to and carry out functions of the relevant Minister.  MPs generally have online resources, as well as offices in their electorate which can be telephoned or visited. For more information about your local MP, visit the Parliament of Australia website.

Ministers and Members of Parliament

 

Elected by community

Executives of Agencies, Directors of Departments, Members of Commissions etc

Appointed

Staff

 

Employed

 

 

Members of Parliament are required to act with integrity, and honestly represent the electorate. There is no formal code of conduct for Members of Parliament or Ministers at the national level. However, the Standing Orders of the Senate and House of Representatives guide conduct in Parliament. A draft Code of Conduct was released in 2011. Ministers are guided by the Standards of Ministerial Ethics. This guide is designed to ensure that Ministers act with integrity and in the public interest when carrying out their Ministerial duties.

Australian public service staff are subject to a Code of Conduct. Australian Government employees are required to adhere to standards of professional behaviour, including behaving honestly and with integrity, avoiding conflicts of interest, and maintaining confidentiality.

Unlike ICAC in NSW, there is no national commission to investigate allegations of corruption. The Attorney-General’s Department is working on a National Anti-Corruption Plan.

For more information about the accountability of decision-makers and government staff, see Holding decision-makers to account.

NSW Government

Members of Parliament are elected representatives of the community, and Department staff are employed to provide advice to and carry out functions of the relevant Minister. MPs generally have online resources, and offices in their electorate which you can telephone or visit. For more information about your local MP, visit the Parliament of NSW website

Ministers and Members of Parliament

 

Elected by community

Executives of Agencies, Directors of Departments, Members of Commissions etc

Appointed

Staff

 

Employed

 

In NSW, all Members of Parliament  are bound by the Code of Conduct for Members. The Code demands that Members must do things like disclose conflicts of interest, not engage in bribery, declare all gifts, and use public resources and confidential information for their proper purpose.

Members of Parliament are required to act with integrity, and honestly represent the electorate. 

In addition, Ministers are bound by the Code of Conduct for Ministers of the Crown. This Code is designed to ensure that Ministers act with integrity and in the public interest when carrying out their Ministerial duties. The NSW Government Ministerial Handbook also includes codes of conduct.

The Independent Commission Against Corruption (ICAC) is an independent organisation established to protect the public interest, prevent breaches of public trust, and guide the conduct of public officials in the NSW public sector. Concerns about corrupt conduct should be made to and are investigated by ICAC. Any person can make a complaint to ICAC.

The NSW Government Personnel Handbook includes a Model Code of Conduct which sets out guidelines for State Government Departments and Agencies in developing and implementing a code of conduct. The Model Code requires public sector staff to adhere to standards of professional behaviour which promote and maintain public confidence and trust in the work of government departments. The code includes values such as trust, integrity, and accountability, and guides decision-makers in avoiding conflicts of interest and bribery. The Public Sector Employment and Management Act 2002 (NSW) gives Department Heads the power to deal with allegations of misconduct by staff within the Department, including taking disciplinary action.

For more information about the accountability of decision-makers and Government staff, see How Are Laws Enforced?.

Local Government

As elected representatives of the community, councillors are required to represent the interests of the community and provide leadership. Councillors and council staff are required to act honestly and exercise a reasonable degree of care and diligence.

Mayor and Councillors

Elected by community

General Manager

Appointed by Council’s governing body

Staff

Employed

 

 

 

All councils in NSW are required to have a code of conduct. This code must be based on the Model Code of Conduct for Local Councils in NSW. The Model Code sets the standards of conduct and conduct obligations required of councillors and council staff. The Model Code also provides guidance to the public about the standards of behaviour that apply to councillors and council staff.

Key principles underpinning the Model Code include integrity, selflessness (including making decisions in the public interest), impartiality, accountability to the public, openness about decisions and actions, honesty and respect.

For more information about the Model Code of Conduct, visit the Division of Local Government website.

If you have concerns that a councillor or member of council staff  has breached your local council’s code of conduct, you can complain to the General Manager or Mayor of the Council, or refer the matter to the Division of Local Government for investigation. There is a Pecuniary Interest and Disciplinary Tribunal that hears the more significant complaints and can suspend a councillor for up to six months.

If you have a complaint about the council’s failure to do something like enforce the conditions of a development consent or act on complaints about unauthorised work, you can make a complaint to the council, or you can lodge a complaint with the NSW Ombudsman. It is important to remember that the Ombudsman cannot order the council to do something or to change a decision, but it can make recommendations that promote fairness, integrity and practical reforms. For more information about making a complaint, visit the Division of Local Government website.

The Minister for Local Government can request the Division of Local Government to investigate a council where there has been a serious allegation made against it. The Minister can order the council to improve its performance or issue a caution. The Governor of NSW can dismiss a Mayor and councillors following a public inquiry. In this case they will be replaced by an administrator, or a new council election will be held.

See How Are Laws Enforced? for more information about the accountability of decision-makers.

Elections

Australian Government

Members of Parliament are elected in Australia by voters enrolled in electorates throughout the country. All residents over the age of 18 are required to enrol to vote in the Australian Government elections. Australian Government elections are conducted by the Australian Electoral Commission.

Unlike local and State Government elections, Australian Government elections are not held at a fixed time every four years. An Australian Government election must be completed by 30 June every three years. By-elections are held when a vacancy in the House of Representatives arises.

Voters elect a local Member for each electorate who sits in the House of Representatives for a term of three years. Voters also elect representatives from throughout Australia to sit in the Senate for a term of six years. The office of Prime Minister is filled by the leader of the Party who wins government. Ministers are selected by the Prime Minister, and appointed by the Governor-General. For more information about the system of government in Australia, visit the Parliament of Australia website.

NSW Government

Members of Parliament are elected in NSW by voters enrolled in electorates throughout the State. All residents over the age of 18 are required to enrol to vote in the State Government elections. State Government elections are conducted by the NSW Electoral Commission.

State Government elections are held on the last Saturday in March every four years. By-elections are held when a vacancy in the Legislative Assembly arises.

Voters elect a local Member for each electorate who sits in the Legislative Assembly for a term of four years. Voters also elect representatives from throughout NSW to sit in the Legislative Council for a term of eight years. The office of Premier is filled by the leader of the Party who wins government. Ministers are recommended by the Premier, and appointed by the Governor.

Local Government

Councillors are elected by voters who are enrolled in the local government area. All residents over the age of 18 are required to enrol to vote in local government elections. Council elections can be conducted by the council themselves or by the NSW Electoral Commission.

Local government elections in NSW are held on the second Saturday in September every four years. By-elections are held when a councillor leaves mid-term.

In some local government areas councillors elect the Mayor. In this case the Mayor will sit for one year. In other local government areas the Mayor is directly elected by voters. In this case the Mayor will sit for four years.

 

Run for local council

I was unhappy about council’s decisions on environmental issues so I ran for local council. I also joined Landcare so that I can make a practical difference in the local area. Lobbying for strategies to be put in place then lobbying for the funds to implement these strategies takes years. I work with other councillors to get support for a council decision.

- Vanessa Ekins, Councillor, Lismore City Council

 

 

 

 

This project has been assisted by the New South Wales Government through its Environmental Trust.

 

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