Tag: EPBC Act review

New ‘Big Agenda’ for Nature faces many hurdles

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By Peter Burnett

This is a version of an article published on 12 December 2022 in The Conversation; it contains some additional material.

The Albanese Government’s ‘Nature Positive Plan’ reform package last week, announced by Environment minister Tanya Plibersek last week, is a much-anticipated response to Professor Graeme Samuel’s 2020 Review of the Environment Protection and Biodiversity Conservation (EPBC) Act. It will be a major plank in the Albanese government’s 2023 agenda.

The plan is packed with policy announcements, most of which stick close to Samuel’s recommendations. Major stakeholders have welcomed the package, none more so than Samuel himself, who expressed ‘complete elation and unqualified admiration and respect’ for Plibersek.

The heart of the plan is a bold decision to drop the current ‘box-ticking’ approach to development approval. Instead, decisions must deliver environmental outcomes that reflect new national environmental standards.

As Plibersek puts it, the government now has a ‘big agenda’ supporting a vision of ‘net zero and nature positive by 2050’.

Dauntingly for her, the path of this big agenda stretches far over the political horizon and is littered with hurdles.

Here are ten hurdles the minister will have to jump, just for starters.

1. Climate trigger

The Greens and several cross-benchers have already criticised the absence of a ‘climate trigger’ in the reforms. This would expose large developments to having their carbon emissions limited as a condition of approval. Developments might even be refused for excessive emissions.

The government argues that regulation should not duplicate other measures, especially the safeguard mechanism, which already limits emissions from major facilities. Fair point, but so is the concern that Australia’s primary environmental law, designed to protect matters of national environmental significance, does not deal with the most significant environmental threat of all.

There is scope for a limited climate trigger, to fill gaps in climate regulation, so perhaps a deal will be done. Large-scale land clearing is climate-significant, but not regulated for carbon impacts. Similarly, Australia does not regulate large developments for their ‘scope 3’ downstream domestic emissions (eg, domestic gas production). Now that we have a Climate Change Act and an emissions budget, there is a case for a reserve power not to approve projects on the ground that there is no room left in this budget to accommodate these omissions.

2. Weasel words in the standards

Setting standards for nature-based decisions is cutting edge; the idea is to spell out exactly what a healthy environment looks like, and how much environment we need.

Samuel worked with stakeholders to include some draft standards in his report; in doing so he rightly counseled against ‘weasel words’ — words that rob the standards of their punch, like ‘as far as possible’.

But one person’s weasel words are ‘flexibility’ to another. It won’t be easy keeping the devil out of the detail.

3. Sell standards to states

To eliminate duplication, a major bugbear for business, the reforms provide for states to be accredited to take decisions that are otherwise for federal government, provided they meet the standards. If the states agree to meet the standards for federal decisions, environment groups may push to apply the standards to state-only decisions. States will resist being driven by federal policy.

4. Get into bed with states on regional planning

Regional environmental plans sit alongside national standards at the heart of the reforms. Standards will define what needs to be protected, while plans will say where protected values lie and how much protection is needed, on a traffic light system: red for irreplaceable, orange for values that can be offset, and green for minimal restrictions.

Federation makes it almost essential that the federal government partner with states in preparing regional plans. Plans could be based on Australia’s 56 Natural Resource Management regions or 89 bioregions.

Plibersek has moved early, signing an MOU with Queensland to work together on regional plans on the day she announced the reforms. Even so, this is a long and winding road — time-consuming, expensive and politically challenging.

5. Forest deal

Regional forestry agreements (RFAs) are exempt from the EPBC Act, though both have been criticised for similar failings: inadequate conditions on development, inadequately enforced.

The Rudd government dismissed a similar recommendation pre-emptively. Labor still remembers the 1995 ‘siege of Canberra’, in which logging trucks encircled Parliament House.

One can almost feel the rumble of logging trucks in the cautious language of the plan to ‘begin a process of applying’ the new national standards to RFAs, in consultation with stakeholders.

6. Respect Indigenous views and values

Professor Samuel was rightly passionate about bringing true respect for Indigenous views and values into the EPBC Act. The challenges however do not stop with respectful engagement.

The Rudd Government endorsed the UN Declaration on the Rights of Indigenous People (UNDRIP) and a Parliamentary Committee is considering its domestic application. A key UNDRIP principle is free, prior and informed consent. If we listen respectfully to Traditional Owners, but are told ‘no’, will this translate this into a veto?

7. Kick-start nature repair markets

The Albanese government has placed significant emphasis on the environmental role of the private sector, through ‘nature repair markets’. The plan promises to establish the functional components of these markets.

The government says it cannot foot the repair bill alone. That may be so, but the private sector is motivated by profit, supplemented at the margins by social licence and philanthropy. The government may build a market but with these motivations only a few will come. Often, there just is no business case for voluntary action.

It would be different if we put a price on biodiversity, as we briefly put a price on carbon but, thanks to Tony Abbott, that idea is ‘dead, buried and cremated’.

8. Offsets

Offsets seek to compensate Nature for approved loss, eg clearing habitat for construction. The compensation should be ‘like for like’, eg growing new koala habitat to substitute for cleared habitat. The bottom line is that if offsetting is not possible, nor is the development.

The plan will replace this last restriction with a rule that if offsetting is not possible, pay cash and proceed. Government will spend it on something else, applying a ‘better off overall test’ (BOOT).

If we run out of koala offsets, would feral cat reduction, which benefits quolls but not koalas, leave nature better off? Does the offset need to save two quolls for every koala lost, or is one for one enough? Tricky.

This policy would fit better with a policy goal of conserving whole ecosystems rather than individual species.

9. Build not just trust but support

Samuel found that all sides had lost trust in the EPBC Act. Some things are easily fixed. Full transparency, clear policies, reasons for decision given routinely.

Ironically, things that restore trust will tend to box decision-makers in, just as magicians would find it much harder to perform their tricks if we could see into the magic box.

10. Buckets of money

Of the many hurdles confronting Plibersek in the near term, the highest sits in her own Cabinet room, where she will seek funding in the 2023 Budget. One recent study found that federal and state spending, on threatened species alone, was 15% of what was needed.

Whatever funding is announced, history suggests it will fall several zeros short of what Nature needs.

Endurance race

The biggest problem with the EPBC Act has not been what sits within it, but what does not sit behind it. It has been chronically under-resourced and under-implemented. EPBC is a story of unrealised vision.

We cannot afford a repeat of the EBPC story — better to dig deep and make the Nature Positive Plan work.

Banner image: Image by Christel SAGNIEZ from Pixabay

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)

Simplicity, harmony and the third transformation

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By Peter Burnett

My recent blogs have argued that there are five transformations implicit in Professor Graeme Samuels review of national environmental law, to which the Albanese government is about to respond.* The first transformation was to be driven by environmental outcomes rather than processes, while the second was to take Indigenous knowledge and values seriously.

Today I write about the third transformation, which is to simplify the processes of environmental regulation and harmonise regulatory outcomes between federal and state systems.

No more picking cherries

Proposals for regulatory streamlining, and for the alignment of federal and state environmental assessment laws, have been floated at various times over the last 30 years. Yet this goal remains elusive. Most recently, the Morrison government tried to pass streamlining amendments to the EPBC Act, but failed in the Senate.

The problem with the former Prime Minister’s proposals was that he picked the cherries (as he would have seen them) from the reforms proposed by Professor Samuel and pushed the other reforms out into the never-never. One of the messages from the (previous) Senate was that a majority of Senators wanted action that was comprehensive, not piecemeal.

Morrison’s reforms were dressed up as streamlining; however, they were better described as a devolution of responsibility from the Commonwealth to the states. Vacating the field is not a solution to duplication (at least, not here).

To my observation, the former Prime Minister didn’t have an environmental bone in his body. I’m convinced that he wanted to achieve ‘single touch’ approvals by simply extracting the Federal government from environmental decision-making as far as possible, rather than by negotiating a genuine compatability of different systems.

Officially, maintenance of environmental standards was part of the deal. In practice, it was a hollow promise: Morrison’s initial set of draft ‘standards’ were just a collection of process-based words taken from the existing law. They would have guaranteed nothing in terms of outcomes.

Easy as 1, 2, 3 …

In contrast, Graeme Samuel recommended a harmonising of both environmental processes and outcomes between federal and state jurisdictions. This is a much more ambitious proposal, although it’s easy enough to summarise.

In effect, Samuel wants to transform not just federal environmental regulation, but state regulation as well. His template is easy as 1, 2, 3:

  1. Develop national standards for ecologically sustainable outcomes and give these standards shape locally through regional environmental plans
  2. Build a leading edge, risk-based decision-making system, including comprehensive environmental information, extensive policy guidance, streamlined processes and strong quality control
  3. Accredit states to take most of the decisions, which should be easy because everyone will be singing from the same song-sheet!

But in practice …

Step 2 is perhaps the easiest of a difficult bunch. With enough time and money, information systems can be built, processes automated, helpful policy guidance prepared, and so on. All this would speed up decision-making but alone it doesn’t remove duplication or guarantee improved environmental outcomes.

It’s the harmonised standards that holds the most potential. If the standards were sufficiently high to stop environmental decline and the environmental planning processes met the standards, the feds really could accredit the states and then drop back to a ‘trust but verify’ brief.

The major challenge lies with securing the necessary genuine federal-state partnership to deliver on this ambition. The underlying problem is that, constitutionally, Federal and state environmental responsibilities overlap and, with the possible exception of the Morrison proposals above, neither side wants to play second fiddle to the other.

At first glance, the states are responsible for managing the major components of the environment — land, water and air.

However, environmental problems have been recognised increasingly over the last 50 years as ubiquitous and broad-scale — often national, sometimes global. As the pioneering ecologist Barry Commoner put it in the 1970s, ‘everything’s connected to everything else.’

Federal responsibilities for international matters, along with the federal government’s ability to use non-environmental powers such as its power to regulate corporations, have enabled the Commonwealth to deal with concerns such as the extinction of species, by overlaying State land-management responsibilities with internationally- and nationally-driven policy imperatives.

In response, the states have pushed back against what they see as creeping federal control, and continue to do so.

Another problem is that although Samuel’s proposed national standards are, on their face, for federally-protected matters only, if the states were to sign up to them to secure federal accreditation, it would be hard for them to apply lower standards to the rest of the environment.

To adapt Alfred Deakin’s famous 1902 prophecy about Commonwealth dominance in fiscal matters, the states could find themselves, ‘legally free but environmentally bound to the chariot wheels of the central government’.

Hardly a recipe for success, is it?

Yet I think Samuel’s policy prescriptions are the right ones. The threats posed by environmental degradation operate at landscape, if not global, scale and are, ultimately, existential, as is becoming increasingly obvious as more and more ordinary Australians feel the impacts of extraordinary natural disasters.

And the solution is …

We simply have to find a way to unravel this impossibly-intricate Gordian knot of a problem. These problems are wicked enough without adding inconsistent and even conflicting regulation to the mix.

Tradition has it that Alexander the Great solved the problem by drawing his sword and cutting the knot. Might Tanya Plibersek turn out to be a modern Alexander?

Stay tuned for my own Alexander-like solution in a forthcoming blog.

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

Banner image: So much complexity, so much variation in the manner in which the federal government and state governments regulate the environment. What would it take to wipe the slate clean and start afresh? (Image by David Salt)

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)

A new government and a new environment minister – what now for Australian environmental policy?

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By Peter Burnett

So Australia has a new Labor government, having secured its win on the back of a ‘small target’ strategy that meant saying as little as possible about substantive policy (including on the environment).

That’s nice for them, but what now for the environment itself, especially since Labor’s intended environment minister, Terri Butler, lost her seat to a Green?

Before I get to that, a little more on the environmental implications of the election results.

Despite both major parties largely ignoring the environment (see my last blog), it was quite a ‘green’ election, with the Greens picking up three inner-city Brisbane seats in the lower house to add to their base of just one, while also jumping from nine to 12 seats in the Senate, a 33% increase.

More than this, there was a ‘Teal wave’ in the lower house, with five supposedly-safe ‘blue-ribbon’ Liberal Party seats falling to pro-climate-change ‘Teal’ Independents, joining Zali Steggall and several others to create a loose pro-climate cross-bench ginger group of up to nine.

Meanwhile, the Senate, with the addition of Canberra-based Independent David Pocock, now has a pro-climate majority.

Together these changes represent a major shift in favour of environmental action. (I’m going to assume that the pro-climate MPs will be generally pro-environment, although the degree to which this is ‘on the record’ varies between these MPs.)

While it’s hard to divine the reasons for this shift, I’ll go with conventional wisdom for the moment, which is that our recent horror years of drought, fire, smoke, storm and flood have brought climate change in particular into the homes many millions of Australians, literally.

Policy on the record

Until just before the election, Labor had well-developed policies on climate and water, but a small grab-bag of policies on the rest. At the last minute, Labor released a policy on environmental law reform, in the context of the previous government’s failure to table a full response to the 2020 Samuel Review of Australia’s national environmental law, the Environment Protection and Biodiversity Conservation (EPBC) Act.

Labor promised a full response to the Samuel Review, but in the meantime says they will establish an independent Environment Protection Agency. The agency will have two roles, one concerned with gathering and analysing environmental information and the other focused on compliance with environmental regulation and assurance that environmental standards are being met.

Labor highlights that, as well as being a custodian for national environmental information, the EPA’s data division will take a ‘leadership role’ in environmental accounting. This is a welcome and overdue development for a decision tool that remains largely unrecognised.

Policy off the record

While Labor lifted its game at the last minute with its environmental law reform policy, they can hardly be said to be environmental-policy high performers.

Their ‘43% by 2030’ climate target, while a significant advance on the ‘26 to 28%’ target of the outgoing government, is still much criticised as falling well short of what the Paris target of ‘well below 2 degrees’ requires.

And the environmental law reform commitment remains, for the most part, a commitment to come up with answers rather than an answer in itself. Once the new government starts work on fleshing its policy out, they will find that the job requires much more than just a streamlining of environmental regulation and some extra money for a resource-starved department.

The really big challenges are a lack of clarity and ambition about environmental outcomes and a major under-investment in environmental restoration.

While the Paris targets and our ‘Net Zero by 2050’ commitments provide a clear policy objective for climate policy, the same cannot be said for other areas, biodiversity in particular.

Australia (and almost everyone else) has failed to engage seriously with international targets based on halting and reversing biodiversity decline and our existing domestic biodiversity policies are either meaningless waffle or non-existent.

And our data is so poor that even the experts find it hard to tell us what a policy to halt biodiversity decline would look like on the ground.

Our history of policy failure to date suggests strongly that if reversing biodiversity decline is to be the goal, major institutional change and major investment in environmental restoration will be needed, far beyond anything seen to date.

And the new minister?

The good news is that Tanya Plibersek has been appointed environment minister in the new government. Announcing her appointment, the Prime Minister said Ms Plibersek had a long-term interest in the environment and would be ‘outstanding in that area … particularly in the area of the Murray Darling Basin Plan … it’s very important that that actually get delivered.’

Ms Plibersek is a very experienced and capable operator with previous ministerial experience. She is often spoken of as a future leader and has political heft.

The bad news is that her challenge is not simply to be a political success in the role, nor even to deliver real progress on the ground. The real challenge is to lay the foundations for ongoing success, against a backdrop in which the goal-posts, thanks to climate change, keep moving further away.

Tanya Plibersek will need all her considerable skill and experience, and a significant dollop of Parliamentary and stakeholder goodwill, if she is to have any prospect of meeting this daunting challenge.

We wish her luck.

Banner image: The Australian numbat, now listed as Endangered. Widespread clearing of their habitat and predation by feral animals have led to their steep decline. Arresting the collapse of our biodiversity is just of several major environmental challenges Australia’s new government needs to tackle. (Image by Seashalia Gibb from Pixabay)

It’s election time! For one party the environment is not a priority. For the other, it’s not something to talk about.

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By Peter Burnett

With Australia heading to the polls at the end of this week, what better time to look at election policies on the environment, especially those of the two parties capable of forming government: a re-elected Coalition, or Labor?

Climate gets the lion’s share of environmental attention these days, so I’ll focus on the rest, but I can’t resist a couple of quick comments on climate before doing so.

First, both major parties have committed to net zero by 2050, but Labor is more ambitious in the short term, with a 2030 target of 43% (adopted in 2021), compared to the Coalition’s target of 26-28% (adopted in 2015).

Second, the issue is not just the target but whether there’s a credible path to achieving it. I’ve already criticised the government for tabling a plan for its new 2050 target without any new policy to go with it.

As for Labor, they don’t have any measures for getting to zero by 2050 either, though they have supported their ‘43% by 2030’ target with policies and modelling.

Whoever wins government, they’ll need to get cracking on post-2030 policy, as 2030 is less than eight years away and climate is by far the biggest challenge for governments since World War II.

As to environmental policy on everything else, it boils down to ‘not a focus for us’ vs ‘not telling’. Let me explain.

The Coalition on the Environment

The Coalition at least has a policy, but that’s the high water mark of my compliments.

Climate aside, three things stand out.

First, for a party that likes to claim the mantle of being the best economic managers, they are heavily into creative accounting. A number of the claims in the Coalition policy contain big numbers, such as the claim that they are investing $6 billion for threatened species and other living things, but they puff these up by counting past spending and/or projecting a long way forward.

I’ve criticised this practice as ‘disingenuous bundling’. Certainly, one of the headline policies, ‘$1 billion for the Reef’ represents little more than business as usual.

The second stand-out theme is making a virtue of necessity. The Coalition has a reasonable policy on waste and recycling. And they quote the Prime Minister himself as arguing that ‘It’s our waste, it’s our responsibility’.

The back-story however is that we used to ship a lot of domestic waste to China, but they banned this from 2018. In reality, we had no choice but to fix the problem.

Again, the Coalition policy recites money spent on bushfire recovery and flood response, but practically speaking they had no choice in this. Hardly inspiring.

Finally, they tell you that they have put another $100 million into the Environment Restoration Fund. I’ve criticised this elsewhere as pork-barrelling.

All in all, if you ignore the pork, necessary disaster-response and the smoke and mirrors, it’s pretty much an empty box, though freshly wrapped.

Labor on the Environment

While the Coalition reached for the wrapping paper, Labor have gone for ‘keeping mum’.

Pursuing a small-target strategy overall, but forced by circumstance to engage with the high political risks of climate policy, Labor have gambled that they can run dead on the rest.

They have released a few topic-specific policies. Labor will double the number of participants in the successful Indigenous Rangers program and spend $200m on the Great Barrier Reef, on top of the Coalition’s $1 billion by 2030. They’ll also spend $200m on up to 100 grants for urban rivers and catchments.

A little more significantly, Labor’s Saving Native Species Program commits $224.5 million over four years to preparing overdue species recovery plans and investing in the conservation of threatened species, especially the koala.

Like the Coalition, however, Labor likes to make virtue out of necessity: more than 10% of this money goes to fighting Yellow Crazy Ants in Cairns and Townsville.

All of this is at the margins.

But on the big issues … silence.

What of the 2020 review of Australia’s national environmental law by Professor Graham Samuel? What about the ongoing decline identified by successive State-of-the-Environment reports?

Labor’s website cheerily tells us that: ‘Labor will commit to a suite of environmental policies that continues Labor’s legacy on the environment, and we’ll have more to say about this over the coming weeks’ (my emphasis).

Well, if the ‘coming weeks’ refers to the election campaign, time’s up.

And the winner is …

If you are looking to the major parties for vision and boldness on environmental policy then, with the possible exception of Labor’s climate policy, you’re destined for disappointment.

The Greens are always strong on environment, and have some well-founded hopes of winning an extra seat or two, so they are a definite option for environmentally-concerned voters.

With minority government a real possibility and the major parties reluctant to associate with the Greens, it’s the ‘Teal’ and other climate-focused independents like David Pocock in the ACT (collectively, ‘Teals’ for short) who look to have the most potential to up the ante on the environment.

Standing mostly in well-off inner-city seats and blending liberal blue with environmental green, the Teals may find themselves holding the balance of power, at least in the Senate and possibly in the House of Representatives as well. While climate is clearly their focus, I’d expect the Teals to push strong environmental policy generally, if the chance comes their way.

Teal anyone?

Banner image: Look closely at what both major parties are offering on the Environment and there’s nothing to get excited over. (Image by yokewee from Pixabay)

Federal budget: $160 million for nature may deliver only pork and a fudge

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By Peter Burnett

Treasurer Josh Frydenberg’s cash-splash budget has a firm eye on the upcoming federal election. In the environment portfolio, two spending measures are worth scrutinising closely.

First is a A$100 million round of the Environment Restoration Fund – one of several grants programs awarded through ministerial discretion which has been found to favour marginal and at-risk electorates.

Second is $62 million for up to ten so-called “bioregional plans” in regions prioritised for development. Environment Minister Sussan Ley has presented the measure as environmental law reform, but I argue it’s a political play dressed as reform.

It’s been more than a year since Graeme Samuel’s independent review of Australia’s environment law confirmed nature on this continent is in deep trouble. It called for a comprehensive overhaul – not the politically motivated tinkering delivered on Tuesday night.

A big barrel of pork?

The Environment Restoration Fund gives money to community groups for activities such as protecting threatened and migratory species, addressing erosion and water quality, and cleaning up waste.

The first $100 million round was established before the 2019 election. In March 2020 it emerged in Senate Estimates that the vast majority had been pre-committed in election announcements. In other words, it was essentially a pork-barelling exercise.

The grants reportedly had no eligibility guidelines and were given largely to projects chosen and announced as campaign promises – and mostly in seats held or targeted by the Coalition.

Given this appalling precedent, the allocation of grants under the second round of the fund must be watched closely in the coming election campaign.

A tricky Senate bypass

Australia’s primary federal environment law is known as the Environmental Protection and Biodiversity Conservation (EPBC) Act.

Under provisions not used before, the need for EPBC Act approval of developments such as dams or mines can be switched off if the development complies with a so-called “bioregional plan”.

Bioregions are geographic areas that share landscape attributes, such as the semi-arid shrublands of the Pilbara.

In theory, bioregional plans deliver twin benefits. They remove the need for federal sign-off — a state approval will do the job – and so eliminate duplication. And national environmental interests are maintained, because state approvals must comply with the plans, which are backed by federal law.

But the government’s record strongly suggests it’s interested only in the first of these benefits.

Since the Samuel review was handed down, the government has largely sought only to remove so-called “green tape” – by streamlining environmental laws and reducing delays in project approvals.

Bills to advance these efforts have been stuck in the Senate. Now, the government has opted to fund bioregional plans which, as an existing mechanism, avoid Senate involvement.

Meanwhile, the government has barely acted on the myriad other problems Samuel identified in his review of the law, releasing only a detail-light “reform pathway”.

A rod for the government’s back?

Ironically, bioregional plans may create more problems for the government than they solves.

First, the surveys needed to prepare the plans are likely to spotlight the regional manifestations of broad environmental problems, such as biodiversity loss.

And the EPBC Act invites the environment minister to respond to such problems in the resulting plans. This implies spelling out new investments or protections – challenging for the government given its low policy ambition.

The federal government would also need to find state or territory governments willing to align themselves with its environmental politics, as well as its policy.

Of the two Coalition state governments, New South Wales’ is significantly more green than the Morrison government, while Tasmania is not home to a major development push.

Western Australia’s Labor government has been keen to work with Morrison on streamlining approvals, but fudging environmental protections is another thing altogether. And Labor governments, with a traditionally more eco-conscious voter base, are particularly vulnerable to criticism from environment groups.

The government may fudge the bioregional plans so they look good on paper, but don’t pose too many hurdles for development. Such a fudge may be necessary to fulfil Morrison’s obligations to the Liberals’ coalition partner, the Nationals.

Tuesday’s budget contained more than $21 billion for regional development such as dams, roads and mines – presumably their reward for the Nationals’ support of the government’s net-zero target.

Bioregional plans containing strict environmental protections could constrain or even strangle some of these developments.

But on the other hand, the government may be vulnerable to court challenges if it seeks to push through bioregional plans containing only vague environmental protection.

For a government of limited environmental ambition bioregional plans represent more a political gamble than a reform.

Morrison has clearly rejected the safer option of asking Ley to bring forward a comprehensive response to the Samuel review, casting streamlining as part of a wider agenda.

Such a reform would have better Senate prospects and created room to negotiate.

Morrison could also have promised to reintroduce the streamlining bills after the election. But he must have concluded that the measure has no better chance of getting through the next Senate than this one.

What price fundamental reform?

If the government successfully fudges bioregional plans, the result would be watered-down national environmental protections.

This would run completely counter to the key message of the Samuel review, that to shy away from fundamental law reforms:

“is to accept the continued decline of our iconic places and the extinction of our most threatened plants, animals and ecosystems”.

Clearly, good reform is too expensive — politically as well as fiscally — for this budget.

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: Feed them pork, win their votes. (Image by BeckyTregear @ Pixabay)