January 31 - February 6, 2021: Issue 481
A Major Report Excoriated Australia’s Environment Laws. Sussan Ley’s Response Is Confused And Risky
January 29, 2021
By Peter Burnett
Honorary Associate Professor, ANU College of Law, Australian National University
It’s official: Australia’s natural environment and iconic places are in deep trouble. They can’t withstand current and future threats, including climate change. And the national laws protecting them are flawed and badly outdated.
You could hardly imagine a worse report on the state of Australia’s environment, and the law’s capacity to protect it, than that released yesterday. The review of the Environmental Protection and Biodiversity (EPBC) Act, by former competition watchdog chair Professor Graeme Samuel, did not mince words. Without urgent changes, most of Australia’s threatened plants, animals and ecosystems will become extinct.
Federal environment minister Sussan Ley released the report yesterday after sitting on it for three months. And she showed little sign of being spurred into action by Samuel’s scathing assessment.
Her response was confusing and contradictory. And the Morrison government seems hellbent on pushing through its preferred reforms without safeguards that Samuel says are crucial.
A bleak assessment
I was a federal environment official for 13 years, and from 2007 to 2012 was responsible for administering and reforming the EPBC Act. I believe Samuel’s report is a very good one.
Samuel has maintained the course laid out in his interim report last July. He found the state of Australia’s natural environment and iconic places is declining and under increasing threat.
Moreover, he says, the EPBC Act is outdated and requires fundamental reform. The current approach results in piecemeal decisions rather than holistic environmental management, which he sees as essential for success. He went on:
The resounding message that I heard throughout the review is that Australians do not trust that the EPBC Act is delivering for the environment, for business or for the community.
A proposed way forward
Samuel recommended a suite of reforms, many of which were foreshadowed in his interim report. They include:
- national environmental standards, legally binding on the states and others, to guide development decisions and provide the ability to measure outcomes
- applying the new standards to existing Regional Forest Agreements (RFAs). Such a move could open up the forest debate in a way not seen since the 1990s
- accrediting the regulatory processes and environmental policies of the states and territories, to ensure they can meet the new standards. Accredited regimes would be audited by an Environment Assurance Commissioner
- a “quantum shift” in the availability of environmental information, such as accurate mapping of habitat for threatened species
- an overhaul of environmental offsets, which compensate for environmental destruction by improving nature elsewhere. Offsets have become a routine development cost applied to proponents, rather than last-resort compensation invested in environmental restoration.
Under-resourcing is a major problem with the EPBC Act, and Samuel’s report reiterates this. For example, as I’ve noted previously, “bioregional plans” of land areas – intended to define the environmental values and objectives of a region – have never been funded.
Respecting Indigenous knowledge
One long-overdue reform would require decision-makers to respectfully consider Indigenous views and knowledge. Samuel found the law was failing in this regard.
He recommended national standards for Indigenous engagement and participation in decision-making. This would be developed through an Indigenous-led process and complemented by a comprehensive review of national cultural heritage protections.
The recommendations follow an international outcry last year over mining giant Rio Tinto’s destruction of 46,000-year-old caves at Juukan Gorge in Western Australia. In Samuel’s words:
National-level protection of the cultural heritage of Indigenous Australians is a long way out of step with community expectations. As a nation, we must do better.
The government’s position on Samuel’s reforms is confusing. Ley yesterday welcomed the review and said the government was “committed to working through the full detail of the recommendations with stakeholders”.
But she last year ruled out Samuel’s call for an independent regulator to oversee federal environment laws. And her government is still prepared to devolve federal approvals to the states before Samuel’s new national standards are in place.
In July last year, Ley seized on interim reforms proposed by Samuel that suited her government’s agenda – streamlining the environmental approvals process – and started working towards them.
In September, the government pushed the change through parliament’s lower house, denying independent MP Zali Steggall the chance to move amendments to allow national environment standards.
Ley yesterday reiterated the government’s commitment to the standards – yet indicated the government would soon seek to progress the legislation through the Senate, then develop the new standards later.
Samuel did include devolution to the states in his first of three tranches of reform – the first to start by early 2021. But his first tranche also includes important safeguards. These include the new national environmental standards, the Environment Assurance Commissioner, various statutory committees, Indigenous reforms and more.
The government’s proposed unbundling of the reforms doesn’t pass the pub test. It would tempt the states to take accreditation under the existing, discredited rules and resist later attempts to hold them to higher standards. In this, they’d be supported by developers who don’t like the prospect of a higher approvals bar.
A big year ahead
Samuel noted “governments should avoid the temptation to cherry pick from a highly interconnected suite of recommendations”. But this is exactly what the Morrison government is doing.
I hope the Senate will force the government to work through the full detail of the recommendations with stakeholders, as Ley says she’d like to.
But at this stage there’s little sign the government plans to embrace the reforms in full, or indeed that it has any vision for Australia’s environment.
All this plays out against still-raw memories of last summer’s bushfires, and expected pressure from the United States, under President Joe Biden, for developed economies such as Australia to lift their climate game.
With the United Nations climate change conference in Glasgow in November, it seems certain the environment will be high on Australia’s national agenda in 2021.
Independent Review Of The Environment Protection And Biodiversity Conservation Act Final Report Released
January 28, 2021
After tens of thousands of submissions, many meetings with stakeholders, detailed comments and over 12 months, the final report of the Review of Australia’s national nature laws is finally out.
Conducted by Professor Graeme Samuel, the Independent Review of the Environment Protection and Biodiversity Conservation Act is the biggest examination of how our nature laws are working in the last decade.
With the final report now delivered, the Australian Government has a robust blueprint for new federal nature laws to better protect our precious environment and arrest the extinction crisis.
The report makes a number of critical recommendations including:
- Strong, outcome focussed National Environmental Standards to guide decision making
- Independent oversight and audit to build confidence that the Act, and the National Environmental Standards are working
- A mandated, rigorous compliance and enforcement regime to ensure compliance and enforcement of environmental approval conditions
- Outcomes-focused law, which will require the capacity to effectively monitor and report on environmental outcomes
- Harnessing the knowledge of Indigenous Australians to better inform how the environment is managed
- Recognition that environmental protection under RFAs is insufficient and the need for immediate reform and Commonwealth oversight - a critical element to the ending of logging in the habitat of endangered species like the Swift Parrot
The final report states in its Key Message that;
Australia’s natural environment and iconic places are in an overall state of decline and are under increasing threat. The environment is not sufficiently resilient to withstand current, emerging or future threats, including climate change. The environmental trajectory is currently unsustainable.
The EPBC Act does not clearly outline its intended outcomes, and the environment has suffered from 2 decades of failing to continuously improve the law and its implementation. Business has also suffered. The Act is complex and cumbersome and it results in duplication with State and Territory development approval processes. This adds costs to business, often with little benefit to the environment.
The EPBC Act and its operation requires fundamental reform to enable the Commonwealth to:
- set clear outcomes for the environment and provide transparency and strong oversight to build trust and confidence that decisions deliver these outcomes and adhere to the law
- actively plan for environmental outcomes and restore the environment to accommodate Australia’s future development needs in a sustainable way
- measure effectiveness to ensure that the Act delivers the right level of protection to make a difference for the environment and to support adjustments where changes are needed
- respect and harness the knowledge of Indigenous Australians to better inform how the environment is managed.
New, legally enforceable National Environmental Standards are the centrepiece of the recommended reforms.
- The Standards should focus on outcomes for matters of national environmental significance and on the fundamental processes for sound decision-making. Standards should prescribe that all activities contribute to national environmental outcomes.
- Decisions should be made in a way that is consistent with the Standards. The rare exception being where the Commonwealth overtly exercises discretion, demonstrably and transparently justified in the public interest.
- The full suite of National Environmental Standards recommended should be implemented immediately. The Standards developed in detail by the Review should be accepted in full, and other necessary Standards should be developed and implemented without delay.
- All the Standards are necessary to improve decision-making by the Commonwealth and to provide confidence that any agreements to accredit States and Territories will contribute to national environmental outcomes not just streamline development approvals.
Strong oversight of the implementation of National Environmental Standards is needed to provide the community, and the Australian Parliament, with the confidence that decisions are being made in a way that is consistent with the law.
- The new, independent, statutory position of Environment Assurance Commissioner (EAC) should be created. The EAC should be responsible for reporting on the performance of the Commonwealth, States and Territories, and other accredited parties in implementing the Standards.
- EAC reports should provide recommendations for action to the Environment Minister where there are issues of concern. The Minister should be required to publicly respond.
Separately, the National Environmental Standard for compliance and enforcement developed by the Review should be immediately implemented to ensure a robust and consistent approach to compliance and enforcement of decisions under the EPBC Act or accredited arrangements.
- The Commonwealth should immediately establish a new independent Office of Compliance and Enforcement within the Department of Agriculture, Water and the Environment. It should have modern regulatory powers and tools to enable it to deliver compliance and enforcement of Commonwealth approvals, consistent with this Standard.
- To be accredited, States and Territories and other parties should also ensure compliance and enforcement consistent with this Standard.
Reform is needed to ensure that Indigenous Australians are listened to and decision-makers respectfully harness the enormous value of Indigenous knowledge of managing Country.
- The National Environmental Standard for Indigenous engagement and participation in decision-making developed by this Review should be immediately adopted to deliver initial improvements.
- The current laws that protect Indigenous cultural heritage are well behind community expectations. They do not deliver the level of protections that Indigenous Australians deserve and the community expects. These laws should be immediately reviewed, and reform should be delivered in line with best practice requirements for Indigenous heritage legislation.
Reversing the unsustainable environmental trajectory will require good planning to manage the environment, as well as broadscale environmental restoration.
- Ultimately, governments should shift their focus from individual project approvals to a focus on clear outcomes, integrated into national and regional plans for protecting and restoring the environment and plans for sustainable development. The National Environmental Standards set clear outcomes for matters of national environmental significance. The EPBC Act needs to enable more effective planning and governments must commit to and resource the development and implementation of plans.
- All relevant levers of government should be focused on delivering outcomes for MNES that are aligned with the priorities of plans. This includes program funding and regulatory levers such as how and where the impacts of development can be offset in an ecologically feasible way.
- The size and long-term nature of investment required in restoration cannot be delivered solely by governments. New mechanisms are needed to leverage private-sector investment and to align this with national outcomes for the environment. It will be important to get the institutional settings for these investments right, and detailed work is required to design them well.
Decision-makers, proponents of development and the community do not have access to the best available data, information and science. There is insufficient capability to understand the likely impacts of the interventions made, particularly in a changing climate. Unacceptable information gaps exist, and many matters protected under the EPBC Act are not monitored at all. Poor data and information are costly for all. A quantum shift in the quality of data and information will support the reforms recommended by this Review.
- A national supply chain of information will deliver the right information at the right time to those who need it. Better data and information are needed to set clear outcomes, effectively plan and invest in a way that delivers them, and to efficiently regulate development.
- A long-term strategy is needed, so that each investment contributes to building and improving the system. Clear requirements for the provision and use of data and information should be immediately mandated through the National Environmental Standard for data and information.
The focus of all recommendations made by the Review is on ensuring the intended outcomes of the EPBC Act are clear and they are achieved. The operation of the Act must support continuous improvement.
- A coherent framework for monitoring, evaluating and reporting on the effectiveness of the EPBC Act is required to understand if we are on track to achieve outcomes and, if not, where a change of course is needed.
- A new overarching advisory committee – the Ecologically Sustainable Development Committee – should be assigned responsibility for developing this framework and reporting on outcomes for matters of national environmental significance.
The 38 recommendations in this Review amount to substantial and necessary reforms to reverse the current state of environmental decline. They will enable Australia to meet future development needs in a sustainable way and will support long-term economic growth, environmental improvement and the effective protection of Australia’s iconic places and heritage for the benefit of current and future generations.
The Final Report may be accessed in full at: https://epbcactreview.environment.gov.au/resources/final-report
The Final Report is comprehensive, and the Government will spend the time needed to fully consider Professor Samuel’s recommendations, before providing a formal government response.