Unleashing the environmental watchdogs?

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Court tells NSW EPA to do its duty and make policies to protect the state environment from climate change

By Peter Burnett

Governments know that most of us would place more trust in a seller of used cars than in a politician.

One by-product of this lack of trust is that politicians like to tell us that they are solving a problem by setting up an independent authority. Or, better still, an ‘independent watchdog’. People you can trust.

The trouble is, governments also like to be in control; especially in this age of ‘gotcha’ political journalism. Governments don’t like to create legitimate opportunities for public officials, including those who staff independent authorities, to embarrass, or, worse, defy them.

So, when governments establish these bodies, often enshrining their independence in law, they do so in the knowledge that there are ‘back door’ ways to control them.

Watchdog on a leash

One obvious method of controlling the watchdog is to punish ‘bad’ behaviour by reducing rations. A recent example is the Morrison government’s decision to cut the Auditor General’s budget, just when the auditor is proving very successful at sniffing out corruption in government grant programs — think ‘Sports Rorts’ and ‘Car Porks’.

Another approach is to nobble the authority in plain sight. Federal environment minister Sussan Ley took this option in response to a recent recommendation to create an ‘independent cop on the beat’ to oversee the devolution of environmental approval powers under the Environment Protection and Biodiversity Conservation (EPBC) Act.

While the independent Environment Assurance Commissioner proposed by Minister Ley has superficial appeal, the bill establishing this ‘watchdog’ also puts him or her on a leash by requiring them to seek the minister’s input to their annual workplan, to report to the minister rather than Parliament, and not to investigate individual cases.

If the minister manages to get this bill through the Senate, which is currently looking unlikely, the minister may get to have her (watchdog) cake while eating (leashing) it too.

The case of Bushfire Survivors for Climate Action v the EPA

One recent case that does not fit so comfortably into this theory involves the NSW Environment Protection Authority (EPA) and its engagement with climate change.

A group of bushfire survivors sued the EPA in the Land and Environment Court to compel them to develop policies to protect the state environment from climate change.

Given that the EPA’s founding legislation makes no mention of climate change, I would have expected it to argue that climate change was not part of its brief. However, when the case came to court, the EPA conceded that it did have power to address climate change. Instead of arguing a lack of power, it raised two technical legal arguments as to why it shouldn’t be forced by the court to exercise its climate powers.

The first argument was based on the fact that the EPA’s powers to develop environmental policies and standards are expressed in broad general terms. Because the EPA had indeed been getting on with the job of developing policies and standards on various environmental issues, the EPA argued that the court could not and should not intervene to tell it to develop a policy on this specific topic at this particular time.

In other words, given the EPA’s broad and multi-faceted role, the Court should not hijack the EPA’s agenda, which was a matter for its own expert judgement over time.

The second argument was a back-up, in case it lost the first argument. The EPA said that it had in fact complied with any duty it might have to deal with climate change, by issuing policies and plans that dealt with climate change in various minor ways.

For example, the EPA’s Regulatory Strategy 2021-24 identified climate change as a ‘global challenge’ and set out various ways in which it would contribute to addressing it, including by ‘encouraging’ industry to respond to climate risks and by reporting on NSW government (ie not EPA) climate policies in the State of the Environment Report.

Chief Judge Preston rejected both these arguments and directed the EPA to ‘develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change’.

In effect, the Court said that while the EPA’s duty to develop environmental policies was indeed cast in general terms, giving the EPA significant discretion as to how it should go about its business, this duty would require, at a minimum, that the EPA address threats of greater magnitude and impact, obviously including climate change.

By implication, it would be irrational to fix small problems while ignoring big ones. (Irrationality is one of the few grounds on which a court can intervene in the exercise of administrative discretion).

What’s going on here?

But back to the theory of governments exercising back door control. If the EPA had the power all along to address climate change, why hadn’t they done so in any substantive way?

The reasons might have been cultural. Given that the EPA’s founding legislation makes no mention of climate change, and that its regulatory heritage goes all the way back to the regulation of ‘smoke stack’ industries under the NSW Clean Air Act of 1961, it may have been that the EPA simply saw climate policy as falling outside its mandate.

Alternatively, under the theory of backdoor control, perhaps the NSW government had been whispering in the EPA’s ear, or rejecting climate-related budget bids, all along, without this being public knowledge.

In any event, the government’s response to the court case certainly doesn’t fit the theory.

I had expected them to announce that they would be appealing the decision. If nothing else, statements in the High Court about the ‘irrationality’ ground being one to invoke only in extreme cases certainly suggest an appeal would have some prospects.

But in a surprising and refreshing development NSW Energy and Environment Minister Matt Kean announced on Friday that the government would not be appealing the decision, saying that “the Board and myself have decided … we’ll be putting in place the policies that are needed to give effect to the court ruling”.

Not only that, but “in fact, we’ll be doing everything necessary to give it full effect … [this] is significant because we want to use all our agencies, all the levers within government, to set the quality objectives, guidelines and policies to ensure that we protect the environment from climate change, as we should be doing”…

I suspect this unexpected embracing of a loss in court is mostly down to Kean himself, who certainly seems to be an ‘out-of-the-box’ politician. I reckon he would have had a hard time winning the NSW Cabinet over to this approach of leaning into the wind.

Here comes Matt Kean

But more power to his arm. When Kean first annoyed the Prime Minister last year by calling for stronger action on climate change, Morrison commented that most federal ministers ‘wouldn’t even know who Matt Kean was.’

I can’t think of a better way to raise one’s profile than by having the Prime Minister tell the media that one has no profile!

In any event, I have a feeling that if Kean doesn’t already have a national profile, he soon will.

Image by monicore from Pixabay

Administrative law: like the Curate’s egg, boring in parts, but environmentally useful nonetheless

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By Peter Burnett

“Off with her head”, said the Queen of Hearts to Alice in Wonderland, when Alice couldn’t read the values of some face-down playing cards. The word of the Queen of Hearts was law. Not a good law, actually.

In the real world, ‘Bad King John’ of England (1166-1216) wanted his word to be law as well. While he might not have been quite so capricious as the Queen of Hearts, he was arbitrary and unjust enough to drive his barons to rebellion.

And that rebellion was settled by a set of rules called the Magna Carta in 1215.

While the Magna Carta is best known for establishing the mother of Parliaments and guaranteeing trial by jury (at least for ‘free men’), it also contained a number of guarantees against arbitrary action by the King and his officials — in other words, by government.

For example, King John guaranteed not to take anyone’s corn or chattels without payment and not to appoint incompetent or corrupt judges and officials.

As a result, the Magna Carta is also known for establishing the principle that government is not above the law and thus cannot behave in arbitrary and unjust ways.

This is the foundational principle of administrative law.

Now some believe ‘law’ is dry and boring, with the very mention of administrative law enough to send you to sleep.

I’m here to convince you that administrative law is far too important to be boring, though I will concede that it can be dry and tedious in the detail. In his book The Rule of Law, one of the great modern British judges, (Lord) Tom Bingham, gives the example par excellence of a tedious regulation:

    Any reference in these regulations to a regulation is a reference to a regulation contained in these regulations. (!!)

And administrative law certainly has failings, as we shall see.

What has this got to do with the environment?

How is this relevant to the environment?

Anyone who has followed environmental issues through the courts will know that many court cases concerning the environment turn not on environment-specific principles (such as precaution or intergenerational equity), but on general principles of administrative law.

One such principle is that decision-makers should not be biased, or even appear biased.

A recent, if extreme, example of an environmental case involving that principle concerned the proposed extension to New Acland Coal’s mine near Oakey, Queensland.

This case has a history of appeals and re-hearings too long to recount, but in brief, an environmental assessment was done and a draft approval issued. However, because there were objections raised, the case was referred to the Land Court of Queensland, which had the role of making non-binding recommendations to the Minister for Natural Resources.

The key point for our purposes is that when the case eventually reached the High Court, they sent it back to the Queensland Land Court for a third hearing. This unusual outcome was required because the first and second hearings were affected by the appearance of bias, rendering both hearings invalid.

In the first hearing, the judge had apparently been deeply offended by a newspaper article on the mine extension, raising the possibility that his subsequent decision to recommend against approving the development might have been biased by his taking offence, while the reasoning of the judge in the second hearing became ‘infected’ by the apprehended bias of the first because she adopted some of his findings (at the direction of one of the intermediate appeal courts).

The High Court’s decision was hailed by the Environmental Defender’s Office as a major victory, and in one sense it is. High standards of decision-making have been upheld.

Yet the case also highlights the process-heavy downside of administrative law. Even if the third hearing is finalised without further appeal, there will have been a total of seven court hearings and a decisional timeframe spanning nine years and counting.

And we still don’t know whether the mine will be approved!

Of course, this is grist to the mill to industry and politicians running a campaign against ‘lawfare and green tape’, but the delays are more due to poor regulatory design than to administrative law itself.

A new line of attack

One feature of administrative law is that although its substantive principles are relatively constant, governments provide new ways to apply those principles by passing a constant stream of new laws.

Take for example the current challenge by the Environment Centre of the Northern Territory (ECNT) to the $21 million grant by Minister for Resources Keith Pitt to Imperial Oil and Gas, to expedite gas exploration activities in the Beetaloo Basin in the Northern Territory.

In the past, it has not been easy to bring legal challenges to government decisions to give money away. Some recent High Court decisions and federal legislation have changed this.

For example, since 2013, federal government grants must comply with the Public Governance, Performance and Accountability Act, which requires, among other things, that the minister making the grant be ‘satisfied, after making reasonable inquiries, that the expenditure would be a proper use of [public] money’.

A ‘proper’ use of money is defined in the Act as one that is ‘efficient, effective, economical and ethical’.

ECNT’s argument is that Minister Pitt committed an (administrative) error of law by failing to make enquiries about the climate risks associated with the development of the Beetaloo Basin, as well as the economic risks of that development as the world transitions to a zero carbon economy.

As far as I can tell this is the first time this line of attack has been used, although the Beechworth Lawn Tennis Club, which is challenging the ‘Sports Rorts’ grants made by the Australian Sports Commission, may well be using similar arguments. (Did I hear you mention ‘car parks’ as well?)

Boring in parts, but definitely useful

So, there you have it. While aspects of administrative law can be boring, overall it is far too useful in securing good environmental decisions to be ignored.

It does however have its problems, as the tortured and scandalously expensive chain of decisions in the New Acland Coal case show.

As a result, one of the challenges of environmental reform, beyond saving the environment of course, is to design decision-making processes that are not only fair and effective, but efficient as well.

Image by Gordon Johnson from Pixabay

Let’s start with a bang, but then what? The early Hawke Governments: 1983-1987

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This is another in our series on the environmental policies of previous Australian Governments.

By Peter Burnett

The blocking of Tasmania’s Franklin Dam project by the Hawke government in 1983 is legendary, even to many who weren’t around at the time. But who can remember what came next for the nation on the environment front?

The answer, for a few years at least, was ‘not that much’.

That dam case

The Hawke Labor government came to power partly on the back of a commitment to stopping the Franklin Dam. There had been a national groundswell against the project although, unsurprisingly, Hawke’s promise to block the dam was not popular in Tasmania, where the Labor Party failed to win a single seat.

Reflecting the prominent role the Franklin-Dam issue had played in the election, the Government made stopping the dam its first item of legislative business. The World Heritage Properties Conservation Bill, enabling the government to block the dam, waSs rushed through Parliament in a month.

And Tasmania immediately challenged the law in the High Court.

The High Court’s decision in the Franklin Dam Case, upholding the validity of the federal legislation, was of enormous significance. The Government won the case by a narrow 4-3 majority, but the implications of the majority’s wide view of the federal constitutional power to turn not just environmental commitments, but any international commitment, into domestic law, were by no means marginal.

Don’t forget Biggles

The case was also significant to political cartoonists, who from then on drew Attorney General Gareth Evans as a ‘Biggles’-style World War I flying ace.

This happened because the government needed some high-quality aerial photos of the dam site for the court case. What higher quality could there be than Air Force photo reconnaissance?

The problem was that the Air Force tasked an F-111 bomber to take high-altitude photos. No one would have noticed. Unfortunately for the Attorney General, the pilot, on finding the area overcast, decided to make his photographic runs at low altitude and high speed. You can guess the rest.

A national responsibility?

The effect of the Franklin Dam Case was to validate the theme of ‘national responsibility’ that Hawke had written into the Governor- General’s Speech for the opening of Parliament in 1983:

“My new Government has been elected with a very clear mandate from the people of Australia to protect the Australian environment. My Government is convinced that it would be a gross dereliction of its Constitutional responsibility were it to fail to carry out the clear wishes of the overwhelming majority of the Australian people.

“The national Government is obliged to protect Australia’s natural and cultural heritage, including the South-West Tasmanian wilderness.

The problem was that, aside from stopping the Franklin Dam itself, the Hawke government didn’t do much to implement this ‘national responsibility’ policy during its first two terms.

In fact, the post-Franklin Dam period, through to 1987, could be regarded as rather lacklustre when it came to the environment.

The National Conservation Strategy

This lack of lustre is particularly evident in the fate of the National Conservation Strategy.

This was a Fraser government initiative [see my blog on the Fraser years], continued by Hawke. The Strategy had involved two years’ consultation and culminated in a national conference under the chairmanship of scientist and former Vice Chancellor of the University of NSW, Sir Rupert Meyers.

Environment Minister Barry Cohen presented the completed strategy to Cabinet in 1984 as ‘a blueprint for tackling environmental problems’.

This presented the Government with an important opportunity to adopt a set of high-level objectives and principles of environmental policy and to translate these into action.

However, the States were tepid towards the strategy, even though they all ultimately endorsed it, and the Government’s central agencies gave some advice of which Sir Humphrey would be proud: that advice was summarised in the cabinet submission as ‘the definition of endorsement should not include a commitment to implement the Priority National Actions’!

Cabinet thus squibbed a major opportunity for early action, endorsing the strategy in principle and deciding that it would consider implementation later.

Of course, ‘later’ never came. This was despite Hawke emphasising in the published version that ‘[t]he real significance of the strategy … will be measured not so much by the words it contains but by the actions it generates’!

Unfortunately, this was by no means the last occasion on which Australian governments would talk the talk but not walk the walk.

More talking the talk …

This same failure can also be seen in Australia’s contribution to the OECD during this period.

Australia played significant role in persuading OECD environment ministers in 1985 to commit their governments to ‘an integrated approach, with a view to ensuring long-term environmental and economic sustainability’.

Indeed, in deploying the ‘natural capital’ metaphor in his speech to the meeting, Australia’s delegation leader, Employment Minister Ralph Willis, placed himself at the very cutting edge of policy:

“To our cost we have given inadequate attention to the need for an environmentally and economically integrated approach to the management of natural resources or ‘natural capital’…It is in our mutual interest that each country should manage its ‘natural capital’ as efficiently as possible and with the same concern as accorded the efficient use of other physical, financial and human capital.”

Domestically however we did nothing to develop programs based on maintaining natural capital.

In the meantime, the government had established national State of the Environment (SoE) reporting in 1985. The second SoE Report in 1986 reported that much had been achieved in establishing institutions, enacting laws and implementing programs, but warned that “continuation of these efforts is essential, and important environmental problems remain.”

And one of its conclusions was that “greater emphasis [needs] to be given to developing anticipatory policies designed to prevent future problems …”

Displaying a tin ear, the Government promptly discontinued SoE reporting as a budget savings measure. (National SoE reporting was re-established in 1996.)

Not the end of the story

If the Hawke Government were an environmental policy student in 1985, its report card would start with an A+, followed by a string of D’s. The card would bear the teacher’s comment that ‘this talented student has lost interest and is skipping class’.

However, things began to change in the lead-up to the 1987 election and Hawke would go on to become, in my view, Australia’s most pro-environmental Prime Minister to date.

But that’s another story for a future blog.

Banner image: The bright triangle ‘no dams’ sticker was emblematic of the Franklin Dam protests. It was the first big environmental issue tackled by the new Hawke Government in 1983.

Fixing the Environment is the right thing to do? Isn’t it?

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Beware the Siren’s call of populism

By Peter Burnett

The Grattan Institute’s latest report, ‘Gridlock: removing barriers to policy reform’, argues that Australia’s governance is going backwards and that, without reform, there is little prospect for many policy reforms that would ‘increase Australian prosperity’.

To which we at Sustainability Bites would add ‘and avoid environmental catastrophe’.

The report identifies a number of barriers to public interest reforms. These include vested interests, a weakened media, increasing tribalism in politics and society, and, ultimately, plain old unpopularity.

Grattan also gather a number of sensible recommendations for reform: increasing the expertise and independence of the public service, reducing the number of political advisers in ministerial offices, a federal anti-corruption commission and so on.

Interestingly, the report also confirms that the 1980s and 1990s were indeed ‘golden years’ of reform (something we too believe here at Sustainability Bites) and that this view is not just a rose-tinted longing for the ‘good old days’.

Why the gridlock?

This is all good stuff. But what’s really going on here? We are an advanced liberal democracy, better off in material terms than any society in history — so why do we find ourselves stuck in reform gridlock?

In some cases, the explanations are obvious. The decline of traditional media for example is largely due to the rise of social media.

But it’s much harder to explain the recent rise of tribalism and populism, and a corresponding decline in the willingness of our leaders to champion unpopular reforms.

Of course, these things are all manifestations of human nature, but why are they so prevalent now?

The rise of neoliberalism, and the decline of Conservatism

I put much of the current prevalence down to the rise of neoliberalism, pushing out ‘capital C’ Conservatism and other ways of thinking now seen by many as old-fashioned.

Let me explain.

Neoliberalism is based on classical liberal ideas of individual choice and the efficiency of free markets. However, unlike classical liberalism, it is much less focused on governance-oriented themes such as equality before the law and democracy.

As a result, the prescriptions of neoliberalism tend to be focused on economic policy, such as deregulation and privatisation.

In common with economics, neoliberalism is utilitarian, a philosophy which is focused on maximising ‘utility’ or happiness. And utilitarianism belongs to the family of moral philosophies that are consequentalist, assessing the morality of actions on the basis of their consequences.

In contrast, various other moral philosophies are deontological (from the greek word for ‘obligation’ or ‘duty’) and thus concerned about ‘doing the right thing’.

‘Capital C’ Conservatism has a strong deontological theme, as it seeks to conserve institutions and values on the basis that they are good in themselves. Most religions also have strong deontological foundations, as does humanism.

Does it really matter?

Why all the philosophy? Isn’t it enough that the proof of the pudding is in the eating, to point out that neoliberalism has made us all much wealthier and indeed lifted millions out of poverty?

These things are true but there’s more to it. Remember, we are looking for an explanation for a loss of reform momentum and decline in standards of governance.

The philosophy is relevant because it does provide an explanation.

In looking for explanations of the changes in our politics over the last 40 years, it is not enough to point to the rise of neoliberalism. There has also been a corresponding decline in deontological thinking such as Conservatism and traditional religion.

In short, while material wealth is up, it’s just as important to note that commitment-driven behaviour, such as church-going, volunteering and even sticking with one football team for life, is down. We are not as ‘rusted on’ as we used to be.

So how does this explain the politics?

Consistent with the neoliberal focus on ends rather than means, good government does not matter as much as it once did. The most recent examples of this come from two very capable and well-respected centre-right politicians, NSW Premier Gladys Berejiklian and federal Finance Minister Simon Birmingham.

Both were asked to defend pork-barrelling by their respective governments. The Premier said:

“The term pork barrelling is common parlance. And if that’s the accusation … I’m happy to accept that commentary … I think all governments and political parties make promises to the community in order to curry favour … it’s not an illegal practice; unfortunately it does happen from time to time.”

The Finance Minister said (and then promoted it on his own website):

“[T]he Australian people had their chance and voted the government back in at the last election, and we’re determined to get on and deliver those election promises that we made in relation to local infrastructure as we are nation building infrastructure.”

Shocking. Gladys says ‘everyone does it’ and Simon says ‘you had your chance and you chose us, pork and all’.

Yet, other than a few outraged columns from political commentators, these frank admissions of very poor political behaviour seem to have had little impact or generated much backlash.

If that’s our attitude to pork barrelling, is it any wonder that we are in trouble?

Environmental implications

At the most general level, the solution to environmental decline is to keep our consumption of nature’s services to the rate at which nature produces those services. If we fail to do this, we consume nature itself (natural capital), to our own detriment but especially to the detriment of future generations.

This is why ‘intergenerational equity’ is the fundamental principle of environmental sustainability.

Intergenerational equity is a classic example of deontological thinking. It is a moral imperative to do the right thing by future generations, even at the expense of our own consumption.

So if this kind of thinking is out of fashion, what can we do?

A return to moral codes that many have abandoned seems rather unlikely.

The next best thing might be to emulate the pragmatism of the Greek hero, Ulysses. When he knew that the voyage home from Troy would take his ship past the island of the Sirens, he had himself lashed to the mast so that he would be restrained from giving in to their velvet-like and irresistible call.

We too can lash ourselves to the mast of the ship of state, by setting up institutions such as a federal anti-corruption commission, or, for the environment, a legislated ‘net zero’ target and the independent Climate Change Commission (as proposed by independent MP Zali Stegall).

Of course, it would be better just to ‘do the right thing’. Failing that, when we are tempted to give in to the siren call of populism, good institutions can help save us!

Image: To save ourselves from the Siren’s call of populism we need greater institutional integrity — bring on the independent watch dogs! Image by Andy Faeth from Pixabay

Crunch time for reform of national environmental law

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Does the Government’s ‘pathway for reforming national environmental law’ lead anywhere?

By Peter Burnett

With Parliament rising this Thursday for the winter recess, this week is crunch time for reform of Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

When Environment Minister Sussan Ley popped up to address the National Press Club last Tuesday, and simultaneously released a document and timeline under the title ‘A pathway for reforming national environmental law’, it was clear that the push was on to get the government’s environmental reform agenda through, before MPs leave Canberra’s cold winter behind for their (mostly) warmer electorates.

The story so far

The EPBC Act must be reviewed every 10 years. In 2020 the second such review was undertaken by Professor Graeme Samuel, who submitted an interim report last June and a final report in October.

Professor Samuel was very critical of the Act, and the government’s administration of it, in both these reports. So was the Auditor General, who also released a highly critical report in June.

While it might seem that the government were stung into action by the release of two critical reports last June, it seems more likely that they wanted to capitalise on the sense of urgency created by these reports to pursue their own agenda. This agenda was confined to one of the many issues raised in the Review, that of regulatory duplication and overlap, or what the government terms ‘green tape’.

In any event, the government responded without waiting for the final Samuel Report, introducing an EPBC ‘Streamlining Bill’ last August, guillotining it through the House of Representatives and introducing it in the Senate, where it became stuck in November, following a Senate Committee Inquiry.

In that Inquiry, three key cross-benchers – Senators Rex Patrick, Jacqui Lambie and Stirling Griff – sided with Labor and the Greens in opposing what they saw as a rushed attempt to devolve environmental decision-making to the states.

In response, and no doubt seeking to win over these key votes, the government introduced a second bill, the EPBC ‘Standards and Assurance Bill’ early this year. This Bill provided for the environment minister to set national environmental standards and for an independent ‘watchdog’ over the new devolved arrangements, the Environment Assurance Commissioner.

The government also announced that the first and interim set of national environmental standards would reflect the existing (and much criticised) Act, rather than the new draft standards that Professor Samuel had included in his final report.

Like the Streamlining Bill, the Standards and Assurance Bill was referred to a Senate Inquiry, which reported earlier this month.

This time the position of the three critical cross-benchers is less clear, as only Senator Patrick prepared a dissenting report. However, Senator Lambie later commented to the media.

Senator Patrick was critical of both the standards and the Assurance Commissioner. He was concerned that the government’s proposed standards were much weaker than Professor Samuel had recommended. He was also critical of the fact that the standards would be made by the minister rather than by Parliament.

As to the Assurance Commissioner, Senator Patrick’s view was that, for the watchdog to be effective, ‘it must have a sharp set of teeth.’

Quoted later in The Guardian, Senator Lambie said was her usual feisty self but did not rule out compromise. The reforms would be reforms would be ‘dead in the water if [Minister Ley] doesn’t tighten up the standards’ she said.

Woo any waverers while also preparing for loss

While Senator Lambie hasn’t ruled out compromise, the government have made it clear that it will not compromise on devolving many EPBC decisions to the states and starting out with standards that merely reflect the current law.

However, it clearly feels vulnerable to the criticism that it has simply cherry-picked Professor Samuel’s recommendations, something that he warned against in his report.

As a result, Minister Ley has released a document entitled ‘A pathway for reforming national environmental law’, supported by a proposed timeline depicting four stages of reform through to 2024.

The problem with this pathway is that it contains very little of substance beyond what has already put on the table. The pathway and timeline are generic; they outline a staged process and contain a commitment to consultation.

However, the pathway could lead to anywhere or to nowhere in particular. There is no vision, no sense of where the government wants to go in terms of substantive policy, beyond the barebones commitment to moving to standards-based decisions.

Left with questions

As a result of the government’s decision not to respond to the Samuel Review, but instead to start a reform process leading who-knows-where, we are left with some big questions.

Does the government agree with Professor Samuel that ‘Australia’s natural environment and iconic places are in an overall state of decline in the under increasing threat’? We do not know.

Do they agree with him that ‘broad restoration is required to address past loss, build resilience and reverse the current trajectory of environmental decline’? We do not know.

Do they agree with Professor Samuel that ‘to shy away from the fundamental reforms proposed by this Review is to accept the continued decline of our iconic places and the extinction of our most threatened plants, animals and ecosystems’? In my view, clearly not, although the government is trying to build a credible argument to say otherwise.

Will the government manage to secure the vote of at least one of the three key cross-bench Senators to get this hollow plan through the Parliament? We’ll know very soon, possibly even before you read this.

Image by Seashalia Gibb from Pixabay.

Sharma v Minister for the Environment

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A big win for children on climate change, but for how long?

By Peter Burnett

Never underestimate children. Last week I was telling my family, over dinner, about a recent decision by Justice Bromberg in the Federal Court, concerning climate change. You’ve probably seen media reports of the case, Sharma v Minister for the Environment; in part because it features a group of children.

“The case was brought by half a dozen teenagers,” I pronounced, pleased to be able to talk about my work, “represented by a nun in her eighties.

“There were eight children,” corrected my 11-year-old granddaughter, who is in Year 6.

Well picked up granddaughter, there were indeed eight.

While my main purpose here is to discuss the court case, I have to say it’s heart-warming to see such awareness in one so young. After all, the case concerned her future. Yet it is also heart rending, given the Court’s finding that the climate future facing today’s children was ‘potentially catastrophic’.

The court challenge

The children sought a declaration that the federal environment minister owed them a duty of care in relation to a proposal by a subsidiary of Whitehaven Coal to undertake a major expansion of its Vickery mine in northern NSW.

The Environment Minister came into the equation because the mine could only proceed if she approved it under the EPBC Act, an approval the minister had not yet given.

The expansion would extract an additional 33 million tonnes of coal over 25 years, which would generate 100 million tonnes of C02 when burned.

This is equivalent to about a quarter of Australia’s annual emissions. Although the Court found that, in isolation, these emissions would result in a global temperature increase of only one eighteen-thousandth of a degree Celsius, it rejected an argument that it should disregard this increase as negligible under a legal rule known as de minimis.

The argument for the Minister owing a duty of care was that potentially catastrophic future climate impacts were the foreseeable result of approving the mine and that the children were so vulnerable and so closely and directly affected by a decision under the control of the Minister that she ought to take reasonable care to avoid personal injury to them.

The Minister’s arguments in reply were based on the EPBC Act being a statutory scheme that should, for reasons of both principle and legal interpretation, be regarded as not amenable to common law principles of negligence. A common law duty of care would, the Minister argued, skew her regulatory task.

Interestingly, the minister did not challenge evidence from Emeritus Professor Will Steffen and other experts about the future impacts of climate change on the children. Clearly the government did not want to open itself to accusations of denialism by putting the facts in question, and so it relied exclusively on legal arguments.

The court decision

The Court accepted the argument that the minister owed the children a duty of care not to injure them when exercising her power under the EPBC Act to approve or not approve the mine extension. However, because the judge was not satisfied that there was a reasonable apprehension that this duty would be breached (basically because it was too early to know what the minister might decide), he refused to grant an injunction.

This simple decision sits atop nearly 150 pages of complex legal analysis about the law of negligence, the circumstances in which the courts might find a novel duty of care, such as the one here, and the interaction between statutory schemes such as the EPBC Act and the common law of negligence.

Implications of the decision

There’s enough raw material in this decision for a PhD thesis. So for present circumstances, let’s just look at implications and prospects.

If the decision stands, the implication of the case for decisions under the EPBC Act is that the Minister, when considering whether to approve a development, must now turn her mind to an additional mandatory consideration, the likelihood of personal injury, at least to children if not to others.

This would most likely be of relevance in situations similar to this case; ie, to very large fossil fuel projects, given their climate impacts. The ironic fact that the EPBC Act does not directly regulate climate impacts would not affect this outcome.

It is also conceivable that the precedent might apply to other projects with very large impacts, for example where a project might lead to extensive contamination of the waters of the Great Artesian Basin.

The decision also has potential implications far beyond the EPBC Act. If this duty exists under that Act, it may also apply to other government decisions, possibly even to Cabinet and Budget decisions. And if the duty applies to the minister in approving a mine, it may also apply to those, like Whitehaven, who build and operate mines.

The prospects of the decision standing

This is only the latest in a series of cases which have put fairly adventurous arguments before the courts in the hope of giving the EPBC Act some real teeth. Unlike most of the other cases, on this occasion the arguments have been successful.

However, I think this decision will be appealed and overturned. The arguments would be complex, but in my view, the one most likely to succeed is straight-forward: that the EPBC Act contains a specific direction to the minister to the effect that, in deciding whether or not to approve a development, he or she must only consider the things listed in the relevant division of the Act. That division makes no mention of a duty of care.

If I am right, in one sense it will be back to business as usual, with the Environment Minister approving individual developments on the basis that their impacts are ‘not unacceptable’, while the environment continues to decline.

However, climate litigation is becoming more common around the world as climate risks and impacts increase. Corporations are becoming increasingly responsive to those risks. Even if the case is reversed on appeal, the decision will have given Australian businesses pause for thought and can only add to the momentum towards ‘net zero by 2050′, even in the absence of a government policy to that effect.

Image by Wi Pa from Pixabay

Words are cheap, but conservation is expensive

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The new Threatened Species Strategy is big on rhetoric and small on resources.

By Peter Burnett

What is it the Government is trying to achieve with its new Threatened Species Strategy? It’s stated aim, as its title suggests, is saving threatened species. However, if you consider the evidence it’s hard not to conclude its real aim is something very different.

Saving species

Several years ago, Professor Brendan Wintle of the University of Melbourne and his colleagues published a study, Spending to save: What will it cost to halt Australia’s extinction crisis?, which found that, based on US expenditure, Australia would need to spend something between $910 million and $1.7 billion per year to avoid extinctions and recover threatened species.

This was roughly 7 to 14 times the $122 million that federal and state governments were spending each year between them on threatened species recovery. In other words, on a median figure, we’re spending around 10% of what is needed.

If you think that’s a lot, argued the authors, Australians spend twice as much on pet care. In fact, as Professor Wintle explained recently to a Senate Committee, it’s about the same as Australians spend on pet trinkets – diamanté collars and the like. [

What price the new threatened species strategy?

Last week, federal Environment Minister Sussan Ley released the Australian Government’s new 10 year Threatened Species Strategy. According to the minister, this new strategy builds on the momentum of the first strategy, which was launched in 2015.

It’s not easy to tie actions under these strategies to expenditure, as successive governments have worked hard to make evaluation and thus accountability difficult. However, in the recent 2021-22 Budget the Government announced $18 million to protect ‘iconic’ threatened marine species such as turtles and seabirds, and $29.1 million to protect native species from invasive pests.

The Budget papers don’t break these particular figures down over the four year period that is generally used for budget funding, but on average that’s an extra $11.8m per year, roughly a 10% increase on the $122 million figure from the Wintle et al study or an extra 1% of what is needed. That’s very small beer.

The strategy will be underpinned by consecutive five year action plans, which are intended to identify priority spaces and places, along with ‘concrete actions and practical, measurable targets to assess progress’. The first action plan is in preparation.

A little history

Before releasing the new strategy, the Government released a discussion paper, in October 2020. The discussion paper described the previous strategy, which had concluded four months earlier, but gave no information on how successful the completed strategy had been.

It simply stated that the Threatened Species Commissioner was ‘working on a final report which will present a robust, evidence-based analysis of progress against these 2020 targets’.

Now, some seven months later, we have a new strategy, but still no evaluation on the previous one. So we don’t know if the new strategy addresses the failings of the old.

Unfortunately I’ve seen this happen before, with Australia’s overarching national biodiversity strategy as well: roll out the new strategy without evaluating the old. This conveniently avoids unnecessary embarrassment about poor performance, or, perhaps worse, the inability even to measure performance.

Anyone who contributed to developing the strategy would have had to make do with the Threatened Species Commissioner’s annual progress reports, which include extremely general statements such as the Year 3 report that ‘eleven of these targets were met, four were partially met and six were unmet’ and the Year 4 headline that ‘we continued work to support all targets, with a sharpened focus on those the year 3 report identified as needing greater effort’.

A little strategy

So now we have new strategy, but it’s all high level stuff, broad descriptions on problems and approaches that few could disagree with, such as the vision that ‘Australia’s threatened species are valued, protected and on the path to recovery’.

We do know that, responding to stakeholder comments, the new strategy has been broadened to add reptiles, frogs, insects and fish to the priority birds, mammals and plants identified in the first Strategy. And that it will include marine and freshwater species, as well as terrestrials.

The strategy also includes a new focus on ‘priority places’ to ‘expand the new Strategy’s influence across our land and seascapes’. These priority places will include sites where threat mitigation and habitat protection efforts will benefit multiple species and ecological communities.

The strategy will also expand the number of key action areas to focus Australian Government efforts to landscape-scale actions, including major threats like weeds and diseases.

The devil’s in the detail

As to the detail, well that’s coming in the first action plan, development of which will commence in June; ie, 12 months after the last plan expired. This delay in dealing with such an urgent problem doesn’t fill one with confidence.

But we know that the action plan will cover at least 100 priority species and 20 priority places. There will be a continued focus on feral cats and a new focus on invasive pests and weeds.

We also know that the action plan will attempt to foster greater community engagement through citizen science and partnerships between First Nations people, business and non-government organisations.

Forgive my cynicism, but references to partnerships with business and the like are often code for Government attempts to avoid responsibility and share blame. It reminds me of the statement in our national biodiversity strategy that ‘caring for nature is the shared responsibility of all Australians’.

But one problem is already apparent: the broader the plan the more thinly the meagre available resources are likely to be spread, because I can’t see the government suddenly turning on the money taps. (At least not in a properly targeted way. As I discussed in an earlier blog, the government announced a $100m Environmental Restoration Fund just before the last election, and then promptly committed most of it through election announcements, without any expert advice as to how this money might best be spent.)

What’s the real strategy?

From a policy point of view, there is a complete disconnect between the size of the problem (enormous) and the approach to the solution (narrow focus, tiny resources). Governments are not irrational; when they do something that seems irrational it’s usually because they are actually solving a different problem.

In this case, I think the problem they are solving is the political problem of being seen to be doing something credible about a problem that they either don’t acknowledge or don’t want to engage with.

On that logic, the recipe of conferring the title of Threatened Species Commissioner on a public servant; engaging stakeholders in lots of consultation; producing a glossy strategy and sprinkling a little money around looks quite good to me.

Unfortunately, unless and until there’s a real groundswell of concern among voters about biodiversity loss, that’s the way it’s likely to stay.

Banner image: The Endangered cassowary is threatened by a loss of habitat, vehicle strikes, dog attacks and disease. Recovering just this species alone requires serious resources. (Image by Jessica Rockeman from Pixabay)

The Fraser Government 1975-1982, greener than you might think

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By Peter Burnett

Another in our series on environmental policy under Australian governments of the past.

I lived through the Fraser years. Because he was controversial, I have strong memories of how he was regarded, but on matters environmental my only immediate memory was that one of the reasons Fraser lost government was because he would not match Labor’s promise to stop the Franklin Dam in Tasmania. And yet, if you actually dig into his record, his government did get things done for the environment.

Dogged at the outset

Malcom Fraser was Prime Minister from 1975 till 1982. He was dogged by the controversy of how he came to the Prime Ministership, having collaborated with Governor-General Sir John Kerr in the sacking of the Whitlam Government in 1975.

This was especially true during his early years. People used to turn up wherever Fraser was, yelling ‘Shame, Fraser, Shame!’ After all, Whitlam had urged his followers to ‘Maintain Your Rage!’

Yet everything mellowed with time. Whitlam and Fraser even became firm friends, something that would have appeared inconceivable during the ‘maintain-your-rage’ period.

Fraser went on to develop a strong personal record on human rights, especially on Apartheid, and late in his life, he even endorsed Greens Senator Sarah Hanson-Young for re-election, with the comment that she had been a ‘reasonable and fair-minded voice’!

And when I started researching Fraser’s environmental policies, I was more impressed than I expected to be.

Growing federal power on the environment

The Fraser Government came to power on a relatively bland platform of striking a balance between conservation and economic growth. It also made the specific commitment, which it did not deliver, to develop national pollution standards with the States. (These eventually came under the Keating government in the early 1990s.)

Its most prominent decisions were connected with major developments: the banning of sand mining on Fraser Island at the southern end of the Great Barrier Reef; allowing the Ranger uranium mine while establishing Kakadu National Park to surround it; and failing to stop the proposed Franklin dam in Tasmania.

Yet Fraser was also active in ratifying and implementing international conventions, including the Ramsar Convention on internationally significant wetlands, CITES, the Convention on International Trade in Endangered Species; and the Japan Australia Migratory Bird Agreement.

On World Heritage, Fraser secured the listing of Australia’s first five properties: Wilandra Lakes in western NSW, Kakadu, the Great Barrier Reef, Lord Howe Island and the Tasmanian Wilderness.

Fraser also carried through on several major Whitlam Government reforms, despite the rancour of the Dismissal. He developed the Register of the National Estate and signed the Emerald Agreement with Queensland to provide for cooperative management of the Great Barrier Reef.

But back to development projects. In 1976, following an Inquiry, the Government decided to block sand mining on Fraser Island and to list the island on the Register of the National Estate. Lacking the constitutional power to block mining directly, it did so by refusing to grant an export permit, a decision which it then defended successfully in the High Court.

Constitutionally, this was a very significant decision, as it would confirm the Commonwealth’s ability to insert itself into many areas of traditional state responsibility, including the environment.

In 1977, this time following two Inquiries, the Fraser Government decided to allow uranium mining in the Northern Territory, but subject to extensive safeguards, including a dedicated statutory monitoring regime, due to the sensitive location of the Ranger mine within an area subsequently established as the Kakadu National Park. (Despite being located in the middle of the area concerned, the mine and its access road were excised from the area declared as national park. Over 40 years later, the Ranger uranium mine is only now closing.)

This might be regarded as an example of the ‘striking a balance’ platform on which the government was elected; mining was permitted but the National Park was created and the potential impacts of the mine on the park were regulated by special regime.

A dam in Tasmania

In the dying days of the Fraser Government, one environmental issue, the Tasmanian Government’s decision to build the Gordon below Franklin dam, would come to dominate the political discourse.

The Federal Government opposed the dam, but, despite the precedent of Fraser Island, regarded legislative intervention as a bridge too far. So, instead, Fraser offered Tasmania $500 million not to proceed with the dam, but the offer was rejected.

Despite acknowledging that it may have the legal power to stop the dam, the government argued that its World Heritage obligations did not require it to override responsibilities that it thought properly resided with the States. It would thus fall to the new Hawke government to stop the dam (something I’ll discuss in a future instalment).

The World Conservation Strategy

The Fraser Government also deserves to be remembered for its work on conservation policy.

The United Nations had adopted the World Conservation Strategy (WCS) in 1980. Fraser later announced that all Australian governments had adopted one of its principal recommendations, that every country should prepare its own National Conservation Strategy.

This was a significant initiative, not only because it initiated Australia’s first national statement on environmental policy objectives, but also because the government’s intention was that the national policy conform to the principal objectives of the WCS, which were visionary: maintaining essential ecological processes and life support systems; preserving genetic diversity, and ensuring ‘sustainable utilisation’ of species and ecosystems.

In fact, this concept of sustainable utilisation anticipated the concept of ‘sustainable development’ by seven years.

With the Fraser government losing office before the strategy, the strategy passed to the incoming Hawke government as unfinished business (again, more on this in my next instalment).

How green was the Fraser Government?

Although they couldn’t bring themselves to stop the Franklin Dam by legislation, the Fraser government presided over an active environment agenda and a significant expansion of the federal environmental role. They were particularly strong on World Heritage and got the ball rolling on a coherent national conservation policy.

And the ban on sand mining on Fraser Island is a landmark in our constitutional and environmental history.

Fraser would later write in his memoirs that if he had his time again he would have used the federal power to stop the Franklin Dam.

I once heard Fraser say of his exit from the Liberal Party, ‘I didn’t leave the Liberal Party, they left me.’ I’m not entirely sure that’s right.

Image: Malcolm Fraser emerges from Parliament House on 11 November 1975, after announcing that Governor-General Sir John Kerr had appointed him caretaker Prime Minister. Fraser’s pathway to the prime ministership now dominates our memory of his time. (NAA: A6180, 13/11/75/31; Creative Commons Attribution 3.0 Australia Licence, Commonwealth of Australia (National Archives of Australia) 2019).

At last, an international standard for ecosystem accounting! Now what?

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A backgrounder on the System of Environmental-Economic Accounting – Ecosystem Accounts

By Peter Burnett

Just last month the United Nations Statistical Commission adopted an international standard for ecosystem accounting. The new standard is the latest addition to the System of Environmental-Economic Accounting (SEEA) and is often known by its acronym, SEEA EA.

SEEA EA has been a long time coming. Countries agreed to pursue environmental accounting at the Rio Earth Summit in 1992, but it took until 2012 to develop and adopt the SEEA ‘Central Framework’. There was a companion draft ecosystem standard at that point, but countries couldn’t agree on its content, so they adopted it as ‘experimental’.

Joyful family welcome new arrival

It’s taken another eight years to adopt the SEEA EA as a full international standard, so it’s not surprising that top international officials were enthusiastic in their media releases:

‘A historic step towards transforming the way how we view and value nature’ said UN Secretary General António Guterres. ‘No longer will we allow mindless environmental destruction to be considered as economic progress.’

‘This is a major step forward’, said Inger Andersen, Executive Director of UN Environment. ‘The new framework can be a game changer in decision-making. By highlighting the contribution of nature, we now have a tool that allows us to properly view and value nature. It can help us bring about a rapid and lasting shift toward sustainability for both people and the environment.’

‘This is a giant leap towards measuring nature’s contributions to the economy’ said World Bank Global Director for Environment, Karin Kemper.

There were more quotes from more officials, but you get the drift. This is definitely good news.

Is this a big deal?

So will the SEEA EA be all that it’s cracked up to be?

Just having a standard is quite a big deal. It means authority and consistency. It should mean that national statisticians, treasury departments and other key government agencies will accept statistics derived from ecosystem accounts as being just as authoritative as mainstream economic statistics, which are derived from the National Accounts. (The SEEA and System of National Accounts, SNA, are designed to be compatible.)

It should also mean general government acceptance of the dependence of the economy on the environment, because the SEEA EA opens as follows:

1.1 It is well established that healthy ecosystems and biodiversity are fundamental to supporting and sustaining our wellbeing …

1.2 … there has been growing recognition that the degradation of nature is not purely an environmental issue requiring environmental policy responses. Thus, decision makers across all sectors need to consider their environmental context and the associated dependencies and impacts.

If that’s good enough for national statisticians, it should be good enough for government as a whole. While these statements may reflect old news in the academic literature; they could be new news for official analysis and government decision-making.

For starters, it certainly should mean that State of the Environment reports should be replaced by comprehensive ecosystem accounts. The resulting statistics on environmental degradation should then be just as authoritative as inflation or unemployment statistics. And a proposal for a new environmental program based on such statistics should be taken just as seriously by a Cabinet as a proposal for a program to support an emerging industry.

What’s in the box?

The SEEA EA is built on five core accounts:

1. Ecosystem extent accounts, which record the total area of each ecosystem, by type, within an ecosystem accounting area (eg, nation, political or natural region, river basin, protected area);

2. Ecosystem condition accounts, which record the condition of ecosystem assets in terms of selected characteristics (eg, physical and structural state, soil condition) over time;

3. Physical ecosystem services flow accounts, which record the supply of ecosystem services by ecosystem assets and the use of those services by economic units, including households;

4. Monetary ecosystem services flow accounts, as for physical flow accounts but measured, of course, in money;

5. Monetary ecosystem accounts record information on stocks of ecosystem assets and changes in those stocks (gains and losses).

The SEEA EA also supports ‘thematic accounting’, which organizes data around specific policy-relevant environmental themes, such as biodiversity, climate change, oceans and urban areas. Other important thematic accounts would include accounting for protected areas, wetlands and forests. It also contains a section on ‘applications and extensions’, such as using accounting data to support decision-making on biodiversity, or how to account for the oceans.

Is this a sell-out?

People often worry that environmental accounting means putting a dollar value on everything, the so-called ‘commodification of the environment’. Although the SEEA EA provides for ecosystem accounting in monetary terms, it does not require it. It is up to the user and could be a matter of horses for courses.

Where ecosystems provide direct ecosystem services to human economic activity, it might be both feasible and useful to keep monetary accounts. For example, a mountain native forest adjacent to both urban and horticultural areas might readily support monetary flow accounts for ecosystem services such as water purification, pollination and carbon sequestration, because it is possible to derive economic values for all of these.

Equally, it might not be feasible or useful to attempt monetary accounts for a remote island, little visited but providing habitat for listed threatened species. Here the benefits to humans are largely indirect, through biodiversity conservation. Monetary accounts would be very difficult to construct, because of the difficulty of valuing biodiversity for its own sake, but physical accounts would be very useful, offering the benefits of a standardised approach, not only to monitoring the extent and condition of the species concerned but for managing those characteristics.

What now?

I’d like to go on but I’ve run out of space! I think ecosystem accounts could have something in common with lasers: when first discovered, nobody knew quite what to do with them, but over time they have become indispensable.

Now that the hard technical work has been done, the big challenge is for governments to pick up this powerful new tool and put it to good use. That’s a much harder task than developing the SEEA EA. And we can’t wait nearly as long.

Image by Ronny Overhate from Pixabay