Nature Repair Market bill may repair the environment, but is it the Budget that will need repair?

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By Peter Burnett

Environment minister Tanya Plibersek’s draft Nature Repair Market bill, currently out for public comment, appears to form part of a ‘build it and they will come’ strategy on nature repair.

Right from her first domestic speech as Minister last July, Plibersek has said consistently that the environment is in a bad way and getting worse. And — citing an estimate of more than $1 billion a year to restore landscapes and prevent further degradation— that the cost of repair is beyond the capacity of governments alone.

Plibersek believes the answer lies in finding industry and philanthropic partners. She says that markets can put a value on improvements in biodiversity, enabling landholders to be paid for their services to nature and allowing businesses, among others, to invest in the biodiversity credits that landholders would produce.

The Nature Repair Market bill certainly aligns with this framing, but I don’t think the investors will come, at least not without inducements.

Let me explain.

Nature Repair Market Bill

The bill itself is very similar to the Agricultural Biodiversity Stewardship Bill introduced by then-Agriculture minister David Littleproud before last year’s election. It addresses what can be regarded as the five foundations of efficient and effective markets in nature:

  • standards, to guarantee that any credit given for repairing nature delivers genuine ‘additionality’ — ie, that nature really is enhanced by the action concerned and that the ‘benefit’ produced wouldn’t have happened without the action
  • methodologies, to allow experts on a Nature Repair Market Committee, including conservation biologists and ecologists, to spell out exactly what must be done to enhance nature in particular cases, whether by preparing the soil in a certain way, planting native species in a particular mix, or controlling for particular pests
  • certification by a Regulator, to ensure that repair projects are following the methodologies
  • implementation and compliance, to ensure the repair projects deliver the intended additionality in a measurable way
  • good governance, to ensure that all aspects of the scheme comply with the standards and are seen to be doing so; this requires strict role separation between minister the methodology experts and the regulator, as well as full transparency, so that market participants can see that the elements that give the credits their value are present at all times.

But the bill needs strengthening if it is to lay these five foundations in full. In particular, it comes with some ‘mutant DNA’ inherited from one of its forbears, the Carbon Credits (Carbon Farming Initiative) Act 2011. This DNA was injected by the Abbott government in 2014 and blurs some of the boundaries between the policy role of the minister and the independent expert role of the Nature Repair Market Committee.

The bill also needs more transparency. The underlying principle should be that everything the Committee does should be publicly available, with a few narrow exceptions such as confidentiality while methods are under deliberation.

No doubt the government will make some changes itself to reflect its recent in-principle acceptance of the recommendations of the recent Chubb Review into the integrity of carbon credits, but the underlying principle is that integrity must not only be achieved but seen to be achieved. Anything less rests on a slippery slope towards greenwashing and impaired value.

Then there is the task, once the bill becomes law, of getting a swag of methods approved. This will be much harder for biodiversity than for carbon: a tonne of carbon is a tonne of carbon, but a unit of biodiversity has dimensions in structure, composition, geography and even history, and so may need to be defined in ways specific to a bioregion, ecosystem or area.

Take for example a site that has undergone pasture improvement with the application of fertiliser over time. This site will be more difficult to restore to its original condition than a similar unfertilised site, and sowing seeds and planting native trees on both sites will lead to different biodiversity outcomes.

Come hither, philanthropists, investors, one and all …

At the end of the day though, the biggest challenge is not building the scheme, but getting investors to come.

Philanthropy in Australia is limited, while the business case for companies to invest in biodiversity to build social licence is also very limited. And companies that invest in biodiversity certificates to deliver offsets are compensating for losses they are causing elsewhere — so overall, they deliver no additionality.

I think the government is wedged. If the investors do not come, it could look at some form of compulsion, such as a development levy with an exemption for companies that purchase biodiversity certificates. Any measure of this sort would be political poison without an election mandate.

Alternatively, the government could do what other governments have done over the years — fudge their way through by failing to collect comprehensive data and funding small tree planting programs to apply a veneer of greenwash. Apart from the policy failure this represents, I think Plibersek has already nailed her ‘no fudging’ colours to the mast.

The final option is for the government to stump up a billion or so each year to buy certificates itself. A billion against the Budget as a whole is not much, but a billion from the much smaller pile of ‘new money’ that the government puts on the table each year is a big slice.

Any large biodiversity certificate purchasing program the government did consider would likely come at the expense of either another portfolio or the Budget bottom line, because the environment portfolio was so run down by successive Coalition governments. It would represent an embarrassing, though survivable, retreat from ‘build it and they will come’.

Keep an eye on the coming May Budget for a response to the wedge. Or a cupped hand to the ear for the sound of raised voices emanating from a certain room deep in a well- known Hill in Canberra.

Banner image: Tree plantings and shelterbelts on agricultural land near Canberra. Defining what a biodiversity unit consists of is only part of the challenge in establishing a market for nature repair. (Image by David Salt)

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

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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:

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)

Laying new foundations for environmental decisions: the fourth transformation

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By Peter Burnett

My recent blogs have argued that 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 three transformations were to:

  • pursue pre-defined environmental outcomes 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.

This blog concerns the fourth transformation, which is to lay new foundations for quality environmental decisions.

Money is the root of all … problems

One of the biggest problems with the EPBC Act is that it is a ‘jumbo jet’ of an Act run on a budget fit for a propeller-driven plane.

It has been like that during most of the 20+ years in which the Act has operated.

The original problem was that the environment minister behind the Act, Senator Robert Hill, pulled off something of a coup in getting the EPBC reforms through Cabinet and the Parliament. Many of Hill’s colleagues would likely have opposed the Bill if they had fully understood its scope and power.

As good as he was, Hill was not a magician and scoring a bucket of ‘new’ money to operate a new law with a much wider scope than the laws it replaced was a bridge too far.

The EPBC Act has had some particular financial ups and downs.

In 2007, after the Auditor-General criticised the poor implementation of provisions for protecting and conserving threatened species, the Act received a healthy injection of funds.

On the other hand, over the period 2013-2022, and especially following the notorious Abbott/Hockey ‘horror budget’ of 2014, resources for the environment portfolio, including the EPBC Act, were cut by around 40%.

The new Albanese government has just put some money back in, but it has started from a very low base. The Act remains significantly under-resourced.

Every Act has its consequences (or not) …

The consequences of this long-term underfunding, compounded in some cases by lack of political vision or will, are that many of the foundations of the current system of protection and conservation provided for by the EPBC Act are either significantly under-done, or not done at all.

Three of the most important identified by Professor Samuel were environmental information, compliance and enforcement, and environmental planning.

He described the collection of data and information as ‘fragmented and disparate’, while compliance and enforcement had been ‘limited’ and lacked transparency.

As for planning, while the Act includes a full suite of planning provisions, Samuel found that these provisions had yielded only piecemeal approaches and ad hoc efforts at coordinated national action.

For example, ‘bioregional plans’ prepared for four of Australia’s marine bioregions have never been updated, while no bioregional plans had been prepared for any of Australia’s 89 terrestrial bioregions.

In many respects such ‘under-institutionalisation’ is a perennial problem in Australian environmental policy. So perennial in fact that (ANU) environmental policy expert Professor Steve Dovers even had a name for it: ‘policy ad-hocery and amnesia’.

Of course, this doesn’t excuse such failures.

Samuel’s fix

As we’ve seen, Professor Samuel’s proposed fix is built around the new concept of national environmental standards.

If we are to avoid the ‘on paper, but not in practice’ problem of the current law, the standards will need to be complemented by a range of supporting institutions. Samuel made a number of recommendations in that vein, including:

  • Extending the concept of national standards beyond on-ground environmental outcomes, to deal with requirements for transparent processes and robust decision-making, including environmental data and information; and compliance and enforcement
  • A national data supply chain, managed by a supply chain ‘Custodian’, guided by a strategic plan and supported by adequate investment in new information systems
  • Independent compliance powers for the environment department, with increased transparency and accountability; and adequate resources
  • A new set of planning tools which emphasise strategic approaches at national and regional levels

To go beyond regulation and encourage investment in restoration, Samuel also recommended establishing a central Trust to coordinate public and private investment. While he didn’t mention money every time he made a recommendation, there is a clear sense in his report that none of this will work unless properly funded.

Over to you Tanya

Although environment minister, Tanya Plibersek has spoken positively about implementing the Samuel reforms, there remains a significant risk that this government will repeat the mistake of the Howard government by enacting laws that are strong on paper but weak in practice.

Putting a stop to the long-term decline of Australia’s environment will take a political courage, persistence and (last but not least) major investment.

It is notoriously difficult to obtain ‘new’ money in a government Budget. The lion’s share of expenditure is already baked-in and there are many competing commands for any remaining Budget ‘headroom’.

Plibersek is about to announce the government’s design for the next generation of environmental regulation. Even if it looks very different to the EPBC Jumbo, I’m guessing the design will still be in same ‘heavy lift’ Jumbo Jet class.

But will there be provision to fill the fuel-tanks and a hire a full complement of crew?

* Independent Review of the Environment Protection and Biodiversity Conservation (EPBC) Act, 2020.

Banner image: Australia’s national environmental law was sold to us as a ‘jumbo jet’ set of protections… but then they only provided enough funds to run a propellor driven plane.
(Image by Anja from Pixabay)

A connection with tomorrow’s citizens – calling for a Ministry for the Future

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By David Salt

In a year of climate disasters, you’ve likely forgotten about what happened in India back in March and April. The country experienced its worst heatwave on record in terms of high temperatures, duration and geographical extent. At the end of April around 70% of India was stricken by the ‘event’, killing hundreds of people (probably a gross underestimate), and reducing crop yields by up to 35% in some regions. Heat waves are common in India but the science is suggesting they are now being supercharged by climate change. And things only promise to get worse.

I remember being appalled by the news reports I was reading at the time. Surely, when one of the world’s most populous nations is literally withering under global warming, right in front of our eyes, surely people start to act? Right?

Wrong! Just consider the hyperbolic rhetoric flowing from the just completed COP27 climate conference and its underwhelming outcomes. (What did António Guterres, Secretary-General of the United Nations, say? Oh, that’s right: “We are on a highway to climate hell with our foot on the accelerator.”)

And, as I suggested, if you’d even heard about the Indian heatwaves, you’ve likely forgotten them following the unprecedented Pakistan floods, Europe’s killer summer, the United States devastating hurricanes or China’s record drought. We’re becoming normalized to climate catastrophes!

In any event, back in May, after hearing me ask ‘can you believe what’s happening in India?’ for the twelfth time, a colleague gave me a copy of the book The Ministry for the Future to read. He said it’s full of interesting ideas about how to deal with the growing climate crisis and it begins in India during a heatwave (‘which you keep rabbiting on about’).

Delirium and fever

I thanked him, noted that (according to its cover) Barack Obama had highly commended it (clearly very ‘worthy’), and that it was over 550 pages long in really tiny type. I got home and put it on the reading pile where I expected it to gather dust because deep down I suspected it was just another technobooster effort to get us to believe that while the challenge was big, science would ride in to save us; something I’m very dubious about (and have discussed in the past). I probably wouldn’t read it at all. (I’m so tired of ‘worthy’ being drowned by ‘hypocrisy’.)

Then I came down with Covid, and for three days I suffered my own personal heatwave (high fever). And it was in this somewhat delirious state that I picked up The Ministry for the Future and began to read.

The opening chapter was truly nightmarish. It described a town in India trapped in an unrelenting heatwave in which almost everyone dies; except for a traumatized aid worker, Frank May, who miraculously survives but is scarred for life.

Frank searches for meaning and ends up getting to know Mary Murphy, the head of the Ministry for the Future, a group established under the Paris Agreement to work on policies that take into account the needs of future generations. How will they save the world?

Wait a sec, I asked myself. Is this real? Is there such a thing as a ‘Ministry for the Future’? And why would Mary, a former foreign minister of Ireland, show any interest in a burnt-out husk like Frank (especially when her job is about saving the world)?

Is this for real?

Well, of course, there is no such thing as the Ministry for the Future. The book was written in 2020 by science fiction author Kim Stanley Robinson (KSR). Indeed, according to its Wiki entry, the book is classified as ‘hard science fiction’; which is to say that the science presented is pretty robust (which, I gotta say, strikes me as valid; the science came over to me as authentic and realistic). And yet it’s like no sci fi I’ve ever read. Indeed, I’d place it in that little known genre, ‘hard policy fiction’.

The plot begins in 2025 with a killer heat wave in India (Kim got that wrong, it actually hit in 2022) and ambles its way into the future up until the 58th COP meeting of the Paris Agreement and a bit beyond.

Despite my initial reluctance, I found myself enthralled by the dazzling spectrum of ideas being presented and the multitude of methods KSR employed to tell his story. Mary and Frank are central characters, and their perspectives helped ground the story, but at the same time they are peripheral to a complex tale that goes off in all directions.

The story consists of 106 relatively short chapters, but the detail in many of these (economic theory, climate science, history and governance for example) often makes the prose difficult to engage with and absorb. It really is a tour de force, but it’s not an easy or page-turning read.

I think the thing that won me over was that while it deployed science as one way of dealing with some of the impacts of climate change, it did so in a low key, realistic manner. None of the solutions he presented were silver bullets; and, more than many writers, I thought he gave a good accounting of the trade offs and gaming that occurred around every effort. He creates a very uncertain and complex future world, but one I found quite plausible.

So, while he engaged with geoengineering in the form of aerosols being dumped in the stratosphere (the dumping was done by the Indian Government in response to the heatwaves), the impact was minor (as our current science suggests it would be) and didn’t really fix the problem of over-heating. In the world of the near future KSR also dyed the Arctic sea yellow to increase its ability to reflect light (humanity having melted all the highly reflective sea ice) and drained the meltwater under glaciers to slow their disintegration (thereby reducing the speed of sea level rise).

Connecting with the future

But possibly the boldest and most fundamental change being proposed in the book was a combination of economics, technology and innovations in governance that, when combined, gave reason for people to invest in their future.

KSR sets out the idea that if today’s generation were paid to capture carbon but the payments weren’t made until well into the future, then maybe we’d take this task seriously. To this end, KSR suggests the creation of a carbon coin. Each coin represents one ton of carbon sequestered but were only paid out at some time in the future. People, companies, governments would only invest in generating carbon coin if they believed they could cash them in down the line, so they needed to trust the institutions that ran the coin (the world’s banks), and they needed to believe there was a future they could get to.

Block chain is proposed as an important technology here. It is rolled out everywhere, again led by banks and governments, because for this investment in the future to work there needed to be full accountability and transparency (not, say, like what’s happening currently with carbon offsets). Gaming the system wasn’t feasible, and with time the climate denying elites, whose power lay entrenched in the past, began to lose influence.

Simultaneously, grass roots ‘terrorism’ by disenfranchised segments of society were beginning to tear apart the status quo, and many societies were experimenting with different forms of governance that distributed power to the people (and refugees even began to be treated in a humane manner and assigned genuine rights).

Investing in the future

I wonder what it would take to get humanity to really begin investing in the future? It seems unprecedented climate disruption, with the certain prospect of greater disruption with every passing year, is not enough.

There’s way too much in The Ministry for the Future to even briefly summarise its many insights in this blog, but I hope I may have said enough to pique your interest. It took a dose of Covid to get me to read it; I hope it takes less for you to consider it.

I’ll leave you with one memorable quote from the book when an American town suddenly runs out of water:

“Remember what Margaret Thatcher said? There is no such thing as society?

…I can take them all to a place where they will eat those words or die of thirst. Because when the taps run dry, society becomes very real.”

Banner image: Image by Gerd Altmann from Pixabay 

Taking Indigenous knowledge and values seriously: The second transformation of national environmental law

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By Peter Burnett

In an earlier blog I argued that Professor Graeme Samuel’s 2020 review of the EPBC Act amounted to a call for five transformations in national environmental law. Last time I wrote about transforming a system that is focused on process to a focus on outcomes. Today I write about the second transformation.

Something really struck me about Anthony Albanese’s election-night victory speech last May. After the usual ‘humbled by victory’ thank you, and the standard ‘bring Australians together’ call for unity, Albanese launched into what sounded like the passionate policy speech he had wanted to give all along, but couldn’t, because of Labor’s ‘small policy target’ strategy.

Warming up as he tripped across our future as a ‘renewable energy superpower’ and a more ‘just society’, Albanese reached full voice with:

And together we can embrace the Uluru Statement from the Heart. We can answer its patient, gracious call for a voice enshrined in our constitution. Because all of us ought to be proud that amongst our great multicultural society we count the oldest living continuous culture in the world.

After the frustrations of weeks of restrained ‘don’t frighten the horses’ language (central to their election campaign), it was a relief to hear this leadership.

I also felt that the ground had shifted. Just as the election of the ‘Teal’ independents expressed our national desire, finally, to address climate change properly, Albanese’s confident commitment to the 2017 Uluru Statement marks, in my opinion, our desire to take the next major step towards reconciliation with our First Nations people.

When the ground shifts, everything moves

The implications of this commitment don’t stop with a referendum on an Indigenous ‘voice’ to Parliament. Or even with the other elements of the Uluru statement, truth-telling and treaty.

With Rio Tinto’s 2020 destruction of the Juukan Gorge caves still fresh in many memories (an act done with the ‘consent’ of the Traditional Owners), Graeme Samuel’s strong criticism of Indigenous tokenism in his review of the EPBC Act, and his implicit call for a transformation in environmental policy to take Indigenous knowledge and values seriously, now feel mainstream.

Mainstream such sentiments might now be, but integrating them into our national environmental law is still complicated and challenging.

Providing for ‘respectful consideration of Indigenous views and knowledge’ will take time and investment. Indigenous knowledge doesn’t grow on trees and respectful engagement will have to move at a pace with which Indigenous people are comfortable.

It is the same with our Indigenous heritage protection laws, which don’t just need to protect Indigenous values and set national standards, but fully resourced; and that includes building capacity for extensive and respectful engagement.

This is where the 2020 Juukan Gorge disaster showed up major weaknesses in the existing system. The caves in the gorge were probably eligible for protection under a National Heritage listing, but no-one had nominated them.

There was also a safety net: an old and supposedly temporary law from the 1980s allowed the environment minister to issue an Aboriginal heritage protection order, provided the place was under threat. But when lawyers for the Traditional Owners called the minister’s office about invoking that law to save the Juukan Gorge caves, the minister’s staff failed to put them onto the right officials.

So, no application was made.

We can’t let important values fall through the cracks because we were waiting for Indigenous people to fill-out a white-culture nomination form, or because someone rang the ‘wrong’ phone number.

Finally, Samuel recommended a move to true joint management of federal national parks on Indigenous land, such as Uluru-Kata Tjuta. Again, this will require significant capacity building. As he put it, ‘the magnitude and significance of a transition to greater decision-making for Traditional Owners should not be underestimated.’

It doesn’t stop with EPBC

Taking Indigenous knowledge and values seriously in environmental policy is not limited to the transformation recommended by Professor Samuel under the EPBC Act.

Now we need to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

When UNDRIP was first adopted by the UN in 2007, Australia was one of only four countries to vote against it. Thankfully, we reversed our position only two years later.

Now, belatedly, a parliamentary committee has started looking at UNDRIP’s domestic application.

This declaration raises a lot of issues, but I’ll zero-in on the clause that links most strongly with the EPBC Act.

Article 32 states that Indigenous peoples have the right to control development or use of their lands and other resources. Specifically, for development projects such as mines or roads, it requires governments to:

consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources. [Emphasis added]

The implication is that, in addition to the respectful engagement proposed by Professor Samuel, Traditional Owners should have a right to veto developments.

The brings in the Native Title Act, which gives native title holders a ‘right to negotiate’ but not a veto.

This Act is complex but, in general, if negotiations over, say, a proposed mine, are unsuccessful, the matter will go to arbitration. In theory, an arbitrator such as the Native Title Tribunal could stop a mine from going ahead, but the more likely outcome is that development will proceed under conditions, which might include negotiated compensation.

Where is all this going?

The Indigenous affairs agenda for 2023 is looking packed.

In addition to the referendum on the Voice to Parliament, the government’s environmental package based on the Samuel Review will, hopefully, transform environmental law concerning Indigenous knowledge and values, as Samuel recommended.

We may even see a change to the Native Title Act to give native title holders the right to veto proposed developments.

These reforms are not just politically ambitious, but resource-intensive. The political passion the Prime Minister displayed on election night will need to extend to opening the national wallet!

Banner image: Kata Tjuta in the Northern Territory. Graeme Samuel recommended a move to true joint management of federal national parks on Indigenous land. (Image by sgrabus from Pixabay)

Getting results: the first transformation of our national environmental law starts with ‘standards’

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By Peter Burnett

‘All that’s gold does not glitter’.

So opens the poem that Bilbo Baggins, a Hobbit, wrote to his cousin Frodo, the hero of Tolkien’s Lord of the Rings.

In my last blog I argued that, underlying the definitely non-glittering recommendations of the Samuel Review of Australia’s main national environmental law, the Environment Protection and Biodiversity Conservation (EPBC) Act, lay policy gold, a call for five major transformations in law and policy.

The first of these was to shift from a regulatory regime that was prescriptive and focussed on processes, to one built around the setting and pursuing of national environmental outcomes.

In doing so we would get away from our current ‘box-ticking’ approach to regulation, under which decision-makers (typically the environment minister) consider various factors such as biodiversity loss and the precautionary principle but, at the end of the day, decide pretty much anything they want to.

The main driver of this shift in Professor Samuel’s recommended reforms is the creation of statutory ‘national environmental standards.’

Standards both old and new

We are already used to environmental standards in dealing with certain issues. We have, for example, had standards for ambient air quality and contaminated site remediation for decades.

But we have gone down a different track with nature conservation. Early battles focused on saving precious places from development and indeed the environment movement in Australia was built on some of these, such as the (unsuccessful) fight to save Lake Pedder in the 1970s and the (successful) fight to save the Franklin River in the 1980s.

These were more battles of the heart than the head.

Things shifted in the 1990s. Under the banner of ‘sustainable development’, or, in Australia, ‘Ecologically Sustainable Development’ (ESD), we became more focused on conserving entire landscapes and ecosystems.

But we struggled to pin down exactly what we were trying to achieve. Unable to answer the question, ‘how much environment is enough?’, something we could have worked out if we had done enough science and environmental monitoring, we defaulted to a legalistic approach in which we asked decision-makers to ‘consider’ or ‘have regard to’ certain principles such as precaution or intergenerational equity.

The trouble with such principles is that they are too general to serve as standards and instead become ‘mandatory considerations’ in discretionary decision-making (ie, boxes to be ticked).

The only real limit on this discretion-based decision-making is the ability of the courts to strike down a truly egregious decision on grounds of ‘irrationally’.

The first transformation

Discretionary, bottom-up decision-making is no way to achieve a consistent and ecologically sustainable outcome. Professor Samuel therefore recommended flipping the system on its head: spell out what an ecologically sustainable environment looks like, partly through National Environmental Standards and partly through a comprehensive environmental planning regime, and then require that individual development decisions comply with these standards and plans.

Although transformative, this change seems straight-forward enough; why haven’t we been doing this all along?

One reason is ‘path dependency’. Because many conservation problems first emerged as place-based or issue-specific concerns, we started dealing with them on a reactive, case-by-case basis. This is how our system deals with most issues, environmental or otherwise. As such it was as comfortable as a pair of old slippers — and in we slipped.

Another reason is that we haven’t had the comprehensive environmental information or the deep ecological understanding we needed to draw a line between harm that ecosystems can absorb without losing their identity (resilience), and harm that they cannot absorb. We still can’t do that precisely, although technology and good science have brought us a long way.

More significantly, it is only now that most members of the political class, and indeed a majority in society, are coming to understand and accept that if we don’t act soon, it may be too late.

What would these standards look like?

If standards are central to halting environmental decline, what would they look like? Well, the devil is in the detail, but Professor Samuel included some draft standards in his report, so I’ll use elements of the threatened species standard to give you a brief taste.

In part, this draft standard just repeats some existing formulae, for example that approved developments should not be ‘inconsistent with’ relevant recovery plans.

On the other hand, it also introduces new requirements. One of these is that decisions must take cumulative impacts into account. Another is that decisions must avoid adverse impacts to critical habitat and ensure ‘no net reduction’ of critical habitat.

Note the use of the word ‘net’, which implies that environmental offsets could be used.

So, would they work?

My general view is that Samuel’s draft standards would deliver significant marginal gains, but are not worded tightly enough to halt further major environmental decline.

Just looking at the examples above, I think the following changes (and complementary measures) are needed to make the standard strong enough to halt decline:

  • it is not enough that developments ‘not be inconsistent with’ recovery plans — they need to comply with plans; moreover, the plans themselves must spell things out with much greater precision than existing plans, eg by mapping critical habitat to be protected
  • taking cumulative impacts into account is a significant advance, but doing so requires a major national exercise in gathering and maintaining environmental data over time
  • if a species is to recover, decision-makers must not approve impacts to critical habitat, rather than simply ‘avoiding’ them
  • further, if there is to be ‘no net reduction’ in critical habitat, then offset rules would have to be so stringent that I doubt whether they can be met in practice, which probably means that the word ‘net’ should go from this requirement.

And will standards become reality?

Having National Environmental Standards would be truly transformative for environmental decision-making and in my view they could indeed be policy gold, as long as we get the detail right.

By the same token, standards lack lustre for a reason. As you can see from these brief examples, formulating the right words of protection is not that hard. The real challenge is to build political support for the tough decisions that strong standards imply.

Banner image: Good clear environmental standards could provide a pathway to transform our national environmental law into something that makes a real difference. (Image by David Salt)

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

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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)

Death of the Queen, identity and a sustainable world

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By David Salt

The Queen is dead, long live the King. Okay, we’ve said it, can we now please return to normal transmission*!

On the announcement of the death of Queen Elizabeth the 2nd, Australia sunk into a blackhole of mourning (described by some in the twitterverse as ‘mourn porn’). All news bulletins and national programming seemed only to talk about her passing, how good she’d been, and the 1,000 tiny (tedious) steps of what happens now as her son becomes King. We suspended parliamentary business for a staggering 15 days and declared a public holiday that, because of its suddenness, some believe may cost our economy over a billion dollars. All of this in a country on the other side of the planet from where she had lived, with a population whose majority want us to ditch the monarchy completely, and whose government for all intents and purposes is independently elected and run. What gives?

Of course, there are hundreds of stories currently doing the rounds at the moment on how wonderful and enduring Queen Elizabeth had been. However, for my money, the furore over her passing is more about what it means for our own identity – what and who we are.

The Queen has been our monarch for over 70 years. She’s always been there performing her many public duties through thick and thin; with a polished reserve, constancy and perseverance that is almost superhuman. She is universally lauded as a trusted and hard-working soul, a role model of public service, temperance and restraint. Her very existence gave us confidence in the stability and validity of the system of which we are a part, a confidence that this system would endure and be around to sustain ourselves and our children.

So, even though the Queen was growing old, her death still hit us like an existential slap. Yes, she was a good person, but suddenly her constant presence had vanished, and we all needed reassurance that the validity and dependability of our system was still there, that we still had good reason to believe in the certainty of tomorrow.

The Queen and the Great Acceleration

So much has happened during the 70 years of her queenship. If you think about it, her reign began in 1952, just as the ‘Great Acceleration’ of humanity was taking off; a time of unprecedented technological change, economic growth, exploding population and accelerating consumption. Beginning in the 1950s, humanity built more dams, converted more land to agriculture, eliminated more species and released more greenhouse gases than at any other time in history.

By the 1970s scientists were beginning to point out how unsustainable this development was, but the warnings did little to change our course over the next half century.

With the new millennium, the warnings started proving true. The ‘spotfires’ of deep droughts, floods and mass coral bleachings are becoming more intense and frequent. 2022 seems to have seen most of the northern hemisphere engulfed in one climate-ramped natural disaster after another. The US is burning, Pakistan is drowning while all our great rivers are withering. A climate crisis is emerging.

And, during this time, our trust in the institutional pillars of society have been eroded by neoliberal drivers and market forces. A recent Australian Prime Minister** observed: “We face the spectre of a transactional world, devoid of principle, accountability and transparency.”

‘False news’ and misinformation cloud all our reflection, as tribal partisanship displaces reasoned debate and good governance.

Throughout all this tumultuous, transformational change, the Queen was always there, always constant. The monarchy no longer had the power and influence of earlier centuries, but the Queen still represented all the symbols (flag, crown and anthem) that lay under everything we have built (and fought for, and in some cases died for).

For King, country and the higher cause

Part of that is what the empire built lies here on the other side of the planet. Almost 250 years ago, Britain deported felons to a remote settlement in New South Wales, and that convict colony grew and flowered to become a vibrant multi-cultural, economic powerhouse that we now call Australia.

For King/Queen, God and flag, we displaced (and oppressed) a pre-existing First Nations culture as if it had never existed (a process codified as Terra nullius). Indeed, Indigenous people were not given recognition in the Australian Constitution till the 1960s, and (against a backdrop of multiple appalling legacies in the areas of health, education and welfare) we’re still fighting over how their voice might be heard in our national parliament.

Australia leads the world when it comes to extinction rates, land degradation and per capita emissions of greenhouse gases. Until very recently, we have been seen as the climate change laggards of the developed world.

The belief in ‘Queen and country’ have been central to our society and how we have justified so much of our development trajectory; ‘yes there have been costs, people and cultures have suffered, but it’s all been done for a higher cause’.

The loss of ‘our Queen’

So, with the sad loss of ‘our Queen’, our very identity has been under siege as we reflect upon what it is we have built, and how much certainty is there that it will be there in the future.

The fact that the Queen was undeniably an honest, hardworking servant of the public only clouds our reflections. She was a ‘good’ person but what is the value of the institution she represents, and is this belief in the Crown really an appropriate justification for how we are developing this world?

I quipped at the beginning: ‘can we please get beyond this and let normal transmission return’. But on reflection, humanity can’t afford ‘normal transmission’. We’re driving off a cliff at the moment and the powers that be are only concerned with the condition of the car they’re driving, not where it’s going.

Actually, what we should be saying is: The Queen is dead, long live the King, and may we use this moment of fragility and uncertainty to honestly reflect on the world we have built in their names.

*Speaking of ‘normal transmission’, my recent blogs on Sustainability Bites have been reflections on resilience thinking. This blog on the Queen has been a bit of a divergence. And yet, thinking of the Monarchy as a complex adaptive system might reveal some interesting insights. For example, how much disturbance (and of what form) can the Monarchy absorb before it loses its identity, and begins to operate as a different system (ie, how resilient is this system)? And does the Monarchy have its own adaptive cycle? And during what periods might reform actually take root?

** Which recent Australian Prime Minister observed: “We face the spectre of a transactional world, devoid of principle, accountability and transparency?” I think this is a smart and incisive observation, so I am totally gobsmacked that it was uttered by PM Scott Morrison, the most unprincipled, unaccountable and secretive Australian Prime Minister in living memory.

Banner image: It’s only common cents – the Queen symbolizes certainty in an increasingly uncertain world. (Image by Alexander Lesnitsky from Pixabay)

Triggering the safeguard or safeguarding the trigger: Climate, large emitters and the EPBC Act

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By Peter Burnett

Last week’s debate in the Australian Parliament on the new government’s Climate Change Bill generated a surprising level of debate on a side issue, the possible inclusion of a ‘climate trigger’ in Australia’s most significant environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

So much so that I made it the subject of my last blog, in which I argued that we mostly didn’t need a climate trigger, because it would double up on the ‘safeguard mechanism’ that sets individual baselines for major carbon-emitting facilities like steelworks, and then reduces that baseline over time.

The exception was for actions that would generate significant carbon emissions but weren’t ‘major facilities’, which mostly means major land-clearing.

I’ve changed my mind. In light of last week’s debate, I now think we should have both a climate trigger and a safeguard mechanism, on the proviso that they must dovetail with each other.

Let me explain. As the government is committed to the safeguard mechanism but somewhat skeptical about a climate trigger, I’ll start with the former.

Safeguard mechanism

We don’t yet have the full detail of what the government is proposing — it has promised to release a discussion paper towards the end of August. We do know, however, from statements by climate minister Chris Bowen and from Labour’s election policy, that the gist of the proposal is to keep the existing legal machinery while reducing facility emissions baselines progressively to net zero by 2050.

The safeguard mechanism will apply to the 215 existing major emitters, together with any new facilities emitting more than 100,000 tonnes CO2-e per annum.

Climate trigger

A climate trigger in the EPBC Act would prohibit developments likely to emit more than a certain volume of greenhouse gases per annum (lets say 100,000 tonnes), without first undertaking an environmental impact assessment (EIA) and obtaining a development approval from the environment minister. Such an approval might simply require the developer to use the best available emissions technology at the time of construction, with no follow-on requirements.

Alternatively, much like the safeguard mechanism, it could require reducing emissions from an initial baseline. It might even allow emissions credits to the traded with other such facilities, although this could be complicated in practice.

Dovetailing a safeguard with a trigger

If used together, these two mechanisms would be seeking to occupy much the same regulatory space. That’s why I argued that a climate trigger should be limited to actions that are not caught by the safeguard mechanism, such as land clearing.

However, there are some benefits that are better delivered by one or other of the two mechanisms.

For example, it seems that many projects underestimate their likely emissions by a significant amount. The rigour of the EIA process, including the opportunity for public scrutiny, will help ensure early and accurate estimates of emissions, before the final investment decision is made.

Another benefit of a climate trigger is that the environment minister would have the option of saying ‘no’ to a proposal for a high-emitting facility. Sometimes outright rejection is the right answer, even where the government has no objection to the activity itself, as with Tanya Plibersek’s proposed rejection of Clive Palmer’s latest Queensland coal mine shows.

On the other hand, the safeguard mechanism is designed to facilitate emissions trading, which is something not readily available under the more traditional regulatory mechanism of an EPBC approval.

This leads me to suggest that we can have the best of both, provided we ensure that the two mechanisms dovetail with each other and so avoid duplication.

It could work like this.

First, there would be a whole-of-government policy specifying that major emitters would be subject to a facility-specific emissions cap, set by reference to the lowest feasible emissions from existing technology. This cap would then decline to net zero by 2050.

Second, under the climate trigger, the environment minister would limit herself to assessing the likely emissions under best low-emission technology and setting that level as the initial cap. She would do so knowing that her approval of the project would, in turn, trigger the safeguard mechanism.

In the end, we would have the benefit of both mechanisms but no duplication — just a hand-off from one regulator to the other.

Objections anyone?

Some might object to this ‘dovetail’ approach on the basis that Professor Graeme Samuel recommended against a climate trigger in his review of the EPBC Act in 2020.

This objection lacks substance, for two reasons. First the review did not extend to policy matters such as a climate trigger, but was confined to the operation of the existing Act.

Second, while Professor Samuel did note that previous governments had chosen not to use a climate trigger, an outcome he said he agreed with, he left it at that, without making any arguments of substance against a climate trigger.

‘Both/and’, not ‘either/or’

This debate has quite some way to run —the government will not be responding to the Samuel review until late in 2022 and will not bring forward legislation to amend or replace the EPBC Act until 2023.

However, it is clear already that there will be a major episode of brinkmanship played out between the government and the Australian Greens over the climate trigger. The Greens are determined to push for ‘no new fossil fuel projects’ while the government are equally determined not to ban these projects unilaterally, on the ground that if we act alone, other countries will take up the slack as a suppliers of fossil fuels.

I hope my ‘both/and’ approach will prove useful as that debate plays out.

If we stick with the ‘either/or’ approach currently on the table, then we can expect high-stakes brinkmanship in the Senate next year, as the unstoppable force of the Greens’ passion for avoiding climate disaster collides with the immovable object of a government that knows that its future depends on occupying the centre lane on the political highway.

Banner image: Some want a ‘carbon trigger’ to stop the development of big emitting facilities. Others reckon a ‘safeguard mechanism’ is enough to constrain emissions. Maybe we can dovetail them and get the best of both. (Image by catazul from Pixabay)

Our new environment super-department sounds great in theory. But one department for two ministers is risky

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By Peter Burnett

Good news, Australia – the environment is back. Our new government has introduced a new super-department covering climate change, energy, the environment and water.

But while the ministry move sounds great in theory, it’s risky in practice. Having one super-department supporting two ministers – Tanya Plibersek in environment and water, and Chris Bowen for climate change and energy – is likely to stretch the public service too far.

If a policy area is important enough to warrant its own cabinet minister, it also warrants a dedicated secretary and department. This is especially true for the shrunken environment department, which has to rebuild staff and know-how after having over a third of its budget slashed in the early Coalition years.

Supporting two cabinet ministers stretches department secretaries too thinly. It makes it hard for them to engage in the kind of deep policy development we need in such a difficult and fast-moving policy environment.

What are the politics behind this move?

Tanya Plibersek’s appointment last week as minister for the environment and water was the surprise of the new ministerial lineup.

Even if Plibersek’s move from education in opposition to environment in government was a political demotion for her, as some have suggested, placing the environment portfolio in the hands of someone so senior and well-regarded is a boon for the environment.

Having the environment in the broadest sense represented in Cabinet by two experienced and capable ministers is doubly welcome. It signifies a return to the main stage for our ailing natural world after years of relative neglect under the Coalition government.

It also makes good political sense, given the significant electoral gains made by the Greens on Labor’s left flank. While ‘climate’ rather than ‘environment’ was the word on everybody’s lips, other major environmental issues need urgent attention. Threatened species and declining biodiversity are only one disaster or controversy away from high political urgency.

When released at last, the 2021 State of the Environment Report will make environmental bad news public. Former environment minister Sussan Ley sat on the report for five months, leaving it for her successor to release it.

Now comes the avalanche of policy

Both ministers have a packed policy agenda, courtesy of Labor’s last minute commitment to creating an environmental protection agency, as well as responding to the urgent calls for change in the sweeping [2020 review] of Australia’s national environmental law (https://epbcactreview.environment.gov.au/resources/final-report).

That’s not half of it. Bowen is also tasked with delivering the government’s high-profile 43% emissions cuts within eight years, which includes the Rewiring the Nation effort to modernise our grid. He will also lead Australia’s bid to host the world’s climate summit, COP29, in 2024, alongside Pacific countries.

Plibersek also has to tackle major water reforms in the Murray Darling basin and develop new Indigenous heritage laws to respond to the parliamentary inquiry into the destruction of ancient rock art site Juukan Gorge by Rio Tinto.

Can one big department cope with this workload?

Creating a super-department is a bad idea. That’s because the agenda for both ministers is large and challenging. It will be a nightmare job for the department secretary tasked with supporting two ministers. It’s no comfort that the problem will be worse elsewhere, with the infrastructure department supporting four cabinet ministers.

Giving departmental secretaries wide responsibilities crossing lines of ministerial responsibility encourages them to reconcile policy tensions internally rather than putting them up to ministers, as they should.

The tension between large renewable energy projects and threatened species is a prime example of what can go wrong. Last year, environment minister Sussan Ley ruled a $50 billion renewable megaproject in the Pilbara could not proceed because of ‘clearly unacceptable’ impacts on internationally recognised wetlands south of Broome.

Ley’s ‘clearly unacceptable’ finding stopped the project at the first environmental hurdle. That’s despite the fact the very same project was awarded ‘major project’ status by the federal government in 2020.

The problem here is what might have been the right answer on a narrow environmental basis was the wrong answer more broadly.

If Australia is to achieve its potential as a clean energy superpower and as other renewable energy megaprojects move forward, we will need more sophisticated ways of avoiding such conflicts. This will require resolution of deep policy tensions – and that’s best done between ministers rather than between duelling deputy secretaries.

Super-departments also struggle to maintain coherence across the different programs they run. While large departments bring economies of scale, these benefits are more than offset by coordination and culture issues.

An early task for Glyn Davis, the new head of the prime minister’s department, will be to recommend a secretary for this new super-department of climate change, energy, the environment and water. In addition to the ability to absorb a punishing workload, the successful appointee will need high level juggling skills to support Plibersek and Bowen simultaneously.

Ironically, in dividing time between two ministers, she or he will be the least able to accept Plibersek’s call for staff of her new department to be ‘all in’ in turning her decisions into action.

Peter Burnett, Honorary Associate Professor, ANU College of Law, Australian National University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

(Banner image of two king parrots by David Salt)