The fifth and final transformation: Restoring trust in decision-making

By Peter Burnett

This is the last of my series of blogs arguing there are five transformations implicit in Professor Graeme Samuel’s review of national environmental law,* to which the Albanese government will respond in early December.

The first four transformations were to:

• pursue pre-defined environmental outcomes expressed as ‘standards’, rather than simply following legal process
• take Indigenous knowledge and values seriously
• simplify the processes of environmental regulation and harmonise regulatory outcomes between federal and state systems.
• lay new foundations for quality environmental decisions

The fifth and final transformation is to restore trust in environmental decision-making.

Trust makes the world go round

It’s true, trust makes the world go round.

Democracies in particular depend upon it. Just look at the polarisation, indeed tribalisation, that has occurred in the United States, culminating in the insurrection at the Capitol building in Washington on 6 January 2021.

Trust in government has declined in Australia as well. According to the respected Scanlan Research Institute, trust in the federal government (measured as people saying that they trusted the government at least most of the time) reached a low of 27% in 2013.

This recovered dramatically with the pandemic — trust in the federal government had more than doubled by 2020, to 55% — but it started to drop back again last year (48%). Even if trust were to stabilise around 50%, which seems unlikely, that’s not a great result.

There is no trust in our nation’s most important environmental law

Against that backdrop, it is not surprising that one of the main findings of the Samuel Review of the EPBC Act was that it was not trusted, either by business, who are regulated by the Act, nor by the wider community, who rely on it to protect the environment.

Business views the EPBC Act as cumbersome, involving duplication between federal and state systems; slow decision-making; and as facilitating legal challenges intended to delay projects and drive up costs for business (sometimes called ‘lawfare’).

Businesses are concerned in particular by long delays — for business, time is money.

A major project, such as a mine, can take nearly 3 years to assess and approve. For a business, this is far too long. Most people would acknowledge this.

The community on the other hand, are frustrated by the Act, viewing their participation as limited and process-oriented.

Often, people cannot see how the various environmental, economic and social considerations are weighed by the environment minister and are left with a general perception that outcomes are unclear, if not unsatisfactory. Compliance and enforcement are seen (rightly) as weak and environmental monitoring ineffective (also, clearly correct).

According to Professor Samuel, environmental groups often bring legal challenges because of these frustrations. They have the sense that decisions are out of step with community values, but do not have sufficient ready access to information to know exactly why.

Samuel’s recipe for restoring trust

Happily, Samuel had a recipe for restoring trust in the EPBC Act (or its successor).

His most important recommendation supporting trust is the fundamental shift from process-based decision-making to outcome-based decisions, applying the new national environmental standards (which I discussed as the first transformation). Standards would be supported by regional plans and stronger institutions, including information systems and compliance regimes.

If we had a set of environmental standards spelling out just what we need to protect and conserve, and knew that the environment minister was a) required by law to take decisions reflecting these standards and b) properly supported in taking those decisions by well-designed and well-funded systems, we could all sleep more easily.

But it’s not just the results that matter, but how we get there as well.

Professor Samuel’s other recommendations for restoring trust relate to efficiency, transparency and accountability in decision-making processes. He proposed:

• Giving the community much more access to information, including Plain English guidance; opportunities to participate; access to information being considered; and routinely-given reasons for decisions.
• A new and more influential set of statutory advisory committees, including an new and overarching Ecologically Sustainable Development (ESD) Committee to provide transparent policy advice to the minister on overall progress towards the outcomes set out in the standards
• Adding ‘limited merits review’ (explained below) of development approvals to the existing broad standing of community groups to seek ‘judicial review’ in the courts (also explained below).

Judicial review, which is currently available for EPBC decisions, is the right to ask a court to overturn a decision, but only on the legalities — eg, that the minister failed to follow due process by not consulting everyone affected — and not on the merits, which concern the pros and cons of the final decision itself.

Merits review, often sought through a tribunal rather than a court, but not currently available for the most significant EPBC decisions, would get down to the pros and cons of the decision. Samuel’s ‘limits’ to this kind of review include confining merits review to decisions that have material environmental impacts and good prospects of success.

This is designed minimise review of minor decisions, or those that lack merit and promote delay.

For constitutional reasons Samuel could not simply recommend that the Parliament block all delaying actions by prohibiting access to the courts.

Will the cooks follow the recipe?

You have no doubt guessed from my description of Professor Samuel’s recommendations as involving ‘five transformations’ that I think his approach is ground-breaking.

As he himself hinted, the switch to a standards-based decision-making alone is transformative.

In this context, his further recommendations for increased transparency and accountability are icing on the reform cake. That’s not to say they are not important or long overdue.

But will the government go down this track? We’ll know very soon.

I think they will go for the general approach. However, the devil will be in the detail, especially in the detail of the standards.

The Morrison government pretended to start down the Samuel track by proposing an initial set of draft standards that simply repeated various process-based requirements from the existing EPBC Act. These ‘standards’ added nothing to existing rules and so would not have changed decisions. It was an attempt to pull the wool over our eyes.

If the standards-based approach is to work, it is essential that they spell out, in unqualified detail, exactly how much of the ‘matters of national environmental significance’ we must protect and conserve, if we are to maintain quality of life for ourselves and for future generations.

This will not be easy to do — hopefully our ecologists are up for the job!

We’ll also need some good lawyers — it is essential that the standards contain no ‘weasel words’, as Professor Samuel likes to say.

At the end of the day, people will only trust environmental laws that truly protect and conserve the environment. Transparency and accountability are important, but cannot carry the day by themselves.

Banner image: Trust makes the world go round. If the government wants trust restored in its national environmental law it’ll need to ensure it is efficient, transparent, accountable, but most importantly, that it delivers real outcomes. (Image by Tahlia Stanton from Pixabay)