Reviewing our national environmental law as if it mattered
By Peter Burnett
It’s hard to believe but Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), is twenty years old. Given that it lies at the centre of so many important and controversial debates, how is this 20-year old piece of legislation tracking? In a time of climate change, extinction and growing uncertainty, is the EPBC Act still fit for purpose?
As is appropriate for such a critical piece of law, the EPBC Act gets a statutory review every 10 years. That means the EPBC Act is up for its second review later this year. Does it need a little tinkering or a major overhaul?
Because I had been responsible for the administration of the EPBC Act during the first review in 2009, I was asked recently* to share my reflections on how we should frame the review of the EPBC Act.
To my mind, this is a valuable opportunity for environmental policy reform and the thing we need to resist is the notion that it’s simply a matter of looking inside the Act to see how we can make it work better. The way forward lies on the outside of the Act, and I’d like to pose five big ‘outside’ questions.
But before I talk about these, I should tell you briefly what happened to the first review, led by Dr Allan Hawke, a former federal department head, and completed in 2009. Because what happened back then may help us make the most of this second review.
A potted history of the Hawke Review
The Hawke Review was comprehensive in approach and well-packaged in its recommendations.
Hawke was assisted by an expert panel and engaged extensively with stakeholders. He laid the ground well by packaging his recommendations in an integrated nine-point plan, which had something for everyone: new environmental protection for environmentalists; streamlining of regulation for business; stronger institutions for administrators; and a fresh name and look for maximum political effect.
Unfortunately these outcomes never materialised.
It was 2010 by the time government was able to act on the review and (as some will remember) there was significant political turmoil following a leadership ‘coup’ against Prime Minister Rudd, precipitated in part by a proposed mining tax. That culminated in the watering down of the tax, an election, a change of environment minister and a minority government. Of course, minority government in turn increased the ‘transaction costs’ of reform.
New environment minister Tony Burke announced a detailed government response to the Hawke Review in 2011, but in the ensuing period the minority government was giving high priority to pleasing business generally (and mining companies in particular). The Government thus focused its attention on a ‘one-stop-shop’ initiative to reduce regulatory duplication by using an existing mechanism in the EPBC Act, under which States could be accredited to approve development projects on the Federal Government’s behalf.
As a result, progress on the EPBC reforms slowed to the point where, late in its term, the Gillard Government decided that there wasn’t enough time to get them through and deferred them to the next Parliament. But the next Parliament brought a change of government and the incoming Abbott Government returned to pursuing the ‘one stop shop’.
So, except for some administrative changes, including a policy on biodiversity offsets, the response to the Hawke Review was never implemented. Good policy reform foundered on the rocks of difficult politics.
Back to my questions for the forthcoming review.
The big ‘outside’ questions
1.‘What are we trying to achieve?’
A goal well defined is a goal half achieved. Neither the EPBC Act itself, nor the policy or explanatory documents that surrounded it, answer this question. The Act does include goals such as ecologically sustainable development, but expresses them in qualified language and leaves it open to decision-makers to simply pay lip service to them, so this fundamental question remains largely unanswered.
2. How do we allocate roles & responsibilities between federal and state governments?
Australia’s Constitution operates to share these roles and responsibilities between the two levels of government, but not in any clear or obvious way. However, there is considerable scope for the two levels to agree on a sensible division. In fact there are some agreements of this type, but they date back to the 1990s and were less than ideal even at the time. The EPBC Act is built in part on these agreements and so they need to be renegotiated before major legislative reform.
3. Given that roles are shared, how should the two levels of government cooperate, especially on areas in which overlap in unavoidable, such as environmental information?
Again, the 1990s agreements addressed this but implementation has been desultory. Governments should have tried harder.
4. How do we regulate discretion to ensure conformity with goals?
The freedom that decision-makers have under the current Act is too great: even if the goals of the Act were clear, there is no guarantee that discretionary decisions will implement them. Discretion is necessary in regulatory schemes, but my research suggests there are only two ways to ensure that such discretion is confined to implementing the goals of the Act. The first is to make environmental plans and require that decisions conform to the plans. The second is to have a series of specific decision rules (for example, not to approve development in listed critical habitat). Because characteristics such as critical habitat are usually geospatial, the two approaches are related.
5. How do we ensure that the Act is funded so that it is commensurate with its goals?
The EPBC Act has never been properly funded, going right back to the time when it’s principal architect, Environment Minister Robert Hill, was unable to secure additional funding for his new law. This is one reason why several major mechanisms under the existing Act, including provision for bioregional planning and grants for information-gathering, have been little used. In the absence of election commitments or an environmental crisis, in the current culture there is a high risk that Budget offset rules would strangle reforms.
The bottom line
I leave you with this thought. Unless the government elected later this month addresses the big ‘outside’ questions, the second statutory review of the EPBC Act can only deliver incremental change. That would be a wasted opportunity.
*The National Environmental Law Association (NELA) recently held a short conference to promote discussion of the upcoming review, under the theme of ‘Twenty Years of the EPBC Act – looking back, looking forward’. NELA asked me to reflect on the conference theme.