Five transformations: Breathing life into Australia’s national environmental law

By Peter Burnett

I often write in these blogs about Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). My excuse is that the EPBC Act is the most important environmental law in the country, but it doesn’t work. This is something we all should be worried about, and, as you’ve heard before, this is a piece of legislation that badly needs reform. Australia’s new federal government is making hopeful sounds here but, again as you’ve heard before, talk is cheap.

The job of reform is big, complex and challenging. However, if you reflect on the basic aims of what the EPBC Act was established to achieve, I think it’s possible to envisage a simple pathway forward. And that pathway involves five basic transformations on how the Act currently performs.

The story so far …

The new Australian government has promised to overhaul the EPBC Act and to establish a independent federal Environmental Protection Agency (EPA).

In pursuit of this reform, environment minister Tanya Plibersek has promised to respond to Professor Graeme Samuel’s 2020 review of the Act by the end of this year and to table proposed new laws in 2023.

Plibersek has hinted strongly that the government will follow Samuel’s recommendations, so that provides a clear starting point for discussion while we wait for the detail of the government’s plan.

From great green hope to great green flop

Looking back over the history of the EPBC Act — three years in development and 22 years in operation — it is clear that few of the high hopes held for the Act have been realised. While it expanded federal government involvement in environmental regulation significantly, the evidence suggests that the benefits of this have been marginal. Worse, when we look at the whole picture, the limited benefits achieved are partly offset by the resulting regulatory duplication.

The fundamental reason for this failure to deliver is not poor regulatory design, but gross under-implementation, mostly the result of under-resourcing and a lack of political will.

The EPBC Act can be seen as a three-legged stool on which most of one leg, dealing with environmental planning, is largely missing. (The other two legs protect the so-called ‘matters of national environmental significance’ and provide for environmental impact assessment.)

Most of the plans envisaged by the Act, and essential to its operational, are either vague in content, sitting unimplemented on the shelf, or simply not done.

Meanwhile, as Professor Samuel put it in his review, ‘Australia’s natural environment and iconic places are in an overall state of decline and are under increasing threat.’

What should we do about it?

The EPBC Act is highly complex. It is over 1,000 pages long and there are hundreds of pages of supporting regulations and determinations.

And the Act in turn sits within a complex set of roles, responsibilities, laws and agreements that govern the environment in Australia’s federal system.

Understanding the system is no mean thing, let alone fixing it. So, where to start?

When I went through Professor Samuel’s 38 recommendations, it struck me that he was calling for a complete transformation, in fact five of them. These are:

First, to change from prescriptive regulatory processes to setting and pursuing national environmental outcomes

  • the EPBC Act (and its state counterparts) focus on following due process, a ‘box ticking’ exercise that requires consideration of various factors such as biodiversity loss and the precautionary principle but, at the end of the day, allows governments to decide pretty much anything they like

Second, to shift from Indigenous tokenism to full use of Indigenous knowledge and a full recognition of Indigenous values

  • Samuel was highly critical of the tokenism of current arrangements, while recent events, especially the Juukan Gorge disaster in 2020, have generated considerable impetus for change

Third, to simplify regulatory processes and harmonise environmental processes and outcomes between federal and state jurisdictions

  • this isn’t just about ‘streamlining’ which has become almost a cliché, but a call for harmonisation of processes and outcomes across the nation

Fourth, to lay new foundations for quality decision-making

  • many of the foundations of the current system are either significantly under-done (eg environmental information, compliance and enforcement) or not done at all (eg bioregional planning across the continent)

Fifth, to restore trust in decision-making

  • damningly, Samuel found that none of the key stakeholder groups — business, environment groups and the wider community — trusted the current arrangements.

The reform process going forward

I’ll take a closer look at each transformation in a series of blogs over the next two months, in the lead up to Tanya Plibersek’s response to Samuel.

The reform debate will last right through 2023 and into 2024, as, once the response is on the table, there’s a large reform Bill to draft and an extended Parliamentary process to navigate as Plibersek seeks to shepherd her reforms through a Senate in which the balance of power, for the first time, lies with a cross-bench that is tinged a fairly dark shade of green.

Among other things, she will have to deal with very strong pressure to extend the EPBC Act by including a ‘climate trigger’.

My aim in the lead-up to that debate is to offer some points of focus in a discussion that always risks getting lost in its own complexity. (If you prefer to watch rather than read, I presented these transformations in a Parliamentary Library Seminar on 30 August.)

The problem is enormous and policy ambition needs to be high — bring on the reform!

Banner image: The job of reform is big, complex and challenging. However, it’s possible to envisage a simple pathway forward involving five basic transformations. (Image by David Salt)

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