The Farm Biodiversity Stewardship Market Bill 2022 – Watch out for weasel words

By Peter Burnett

In 2020 I was a member of a consultative group established by Professor Graham Samuel in his review of Australia’s national environmental law, the Environment Protection and Biodiversity Conservation (EPBC) Act.

At several points in our discussions, Professor Samuel, a highly experienced and well-regarded former regulator, cautioned against ‘weasel words’: that is, hollow or ambiguous words that create a false sense of certainty or clarity.

I agreed with Professor Samuel whole-heartedly: one of the secrets of good regulation is to use simple and clear words that leave no scope for confusion or manoeuvre.

Say what you mean and mean only what you say. No legal fudges. It gives everyone certainty and increases trust in a regulatory system.

The Morrison government’s new Agriculture Biodiversity Stewardship Market Bill 2022 (Biodiversity Credits Bill), was introduced last month (February) with very little fanfare. It fails the weasel-words test by including words copied from a similar law on carbon credits, the Carbon Credits (Carbon Farming Initiative) Act 2011 (‘Carbon Credits Act’).

Creating biodiversity credits

Governments in Australia have experimented over the years with biodiversity stewardship schemes (for example, see Learning from agri-environmental schemes in Australia). Typically, these schemes pay farmers to protect or restore native vegetation on their land. The Morrison government is the latest to trial such a scheme.

One difference this time around is that the government is going further than before, using the scheme to lay foundations for wider biodiversity markets. A key to doing this is to create ‘biodiversity credits’ as a new form of property readily bought and sold.

This requires legislation and hence the Biodiversity Credits Bill. The Bill is modelled on the Carbon Credits Act.

In principle, this is a good thing.

Weasel Words

The problem is that the part of the Carbon Credits Act that deals with the integrity of carbon credits was watered down by the Abbott government in 2014 as part of its policy of replacing a carbon price with a (much more limited) purchasing of emission reductions by government.

At the time the government called this watering-down ‘streamlining’ and ‘simplification’, using its now-standard justification that the changes would ‘provide greater flexibility … while retaining the same high standards …’

Integrity is essential to ensuring that carbon or biodiversity credits represent a real gain for the environment at full face value. To achieve this, the credits must be both additional to business as usual and achieved in full compliance with a scientifically robust methodology (renamed ‘protocol’ in the new bill).

The methodology requirements for carbon credits, which are set by the minister, were watered down by the following changes:

The Biodiversity Credits Bill adopts this same watered-down system from the Carbon Credits Act.

It also lowers the bar on the integrity standards, dropping a requirement in the Carbon Credits Act that any necessary assumptions in an approved methodology be ‘conservative’ and replacing it with a requirement that any such assumptions be ‘reasonably certain’.

Superficially, the changes look minor, even trivial. In substance, they are very significant.

Their net effect was and is to weaken the benchmark for, and rigour of, the expert advice; to allow the minister to disregard the advice once given; and to allow more use of CSIRO scientists who, as government employees, can be subject to greater pressures from within government, subtle or otherwise.

In addition, the weaker and more subjective the language, the more difficult it becomes to mount a court challenge on the ground of failing to meet statutory requirements.

What now?

Rumour has it that the government is pushing for a quick passage of the Bill in the few days remaining before the Parliament is prorogued for a May election — presumably on the expectation of bipartisan support.

Such support would deliver another blow to the environment by opening the new biodiversity credits to political influence, compromising their integrity. As the market for credits grows, there will pressures from suppliers to make it easier to have approaches accredited, and from buyers to increase the supply of credits to meet demand and lower prices.

The 2014 carbon credit integrity model should not be adopted for biodiversity credits.

But more than that, biodiversity credits are like a currency. Just as the integrity of our currency has been entrusted to the Reserve Bank board, an independent and expert body, so too should the integrity of biodiversity (and carbon) credits be entrusted to an independent expert body.

I hope the Senate will not support the Biodiversity Credits Bill in its current form.

Act in haste, repent at leisure.

Banner image by monicore @ Pixabay

And for my next environmental trick …

Will the federal government engage in real environmental reform before the election?

By Peter Burnett

One of my favourite environmental cartoons appeared in 2015 in the lead up to the Paris climate meeting. It depicts Australia’s environment minister (who was then Josh Frydenberg) as a magician performing for a domestic audience. The magician pulls a climate policy rabbit out of a hat. Meanwhile, a giant rabbit called ‘Paris’ peers round a curtain on the stage …

This October Prime Minister Morrison tried something of a similar trick, releasing the ‘Australian Way’, a climate ‘plan’ that ramped up Australia’s climate ambition to Net Zero by 2050, without the benefit of any new policy to support this heightened ambition.

With almost breathtaking hutzpah, Mr Morrison even told the domestic audience that ‘the Australian way shows a way for other countries to follow’! Meanwhile, a justified monstering awaited him at Glasgow …

A Magic Pudding

At the time of the PM’s announcement, my immediate thought was not of magicians but of Norman Lindsay’s 1917 children’s book, The Magic Pudding, in which Albert, the irascible pudding, is forever being eaten but is never consumed.

When the ‘modelling’ behind the plan was released, it confirmed my suspicion of ‘magical thinking’. For example, it uses an unrealistic baseline scenario called ‘No Australian Action’, in which every country except Australia reduces their emissions to achieve a below 2 degrees emissions trajectory. The scenario then assumes that the only adverse reaction to such free riding by Australia comes from investors imposing a capital risk premium.

Meanwhile, the costs of climate inaction, imposed by extreme weather, climate refugees and so on do not rate a mention.

Content-free reform

While the government has yet to display such blatant ‘magical thinking’ in its approach to reforming Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), it is certainly showing ‘magical’ tendencies in the sense that the ‘reforms’ it has announced to date contain nothing real.

Readers will recall that the EPBC Act was the subject of a major independent review by Professor Graeme Samuel in 2020. The centrepiece of the Samuel Review was a shift from process-based regulation to outcome-based National Environmental Standards.

Releasing a reform ‘pathway’ in response to the Samuel Review in June this year, the Government announced that it would adopt Interim Standards that — wait for it — reflected the (process-based) status quo!

Yet all is not quite as vacuous as it seems. The government does have an agenda, just not one concerned with halting environmental decline.

Rather, its priority is to devolve environmental approvals to the states. It has labelled its devolution proposals as ‘single touch’ approvals and declared these to be the ‘priority reforms’ in its response to the Samuel Review.

While, on paper, there’s a timeline for substantive environmental reforms to come later, in reality, nothing happens until Parliament passes the necessary legislation.

The subtext? If you want environmental reform, you’ll pass our devolution laws.

Trouble is, the devolution laws are stuck in the Senate and are looking increasingly unlikely to pass. Cross-benchers have called the government’s bluff.

So, with an election looming, will the government be content to leave it at that?

One more shot in the environmental reform locker?

Well, the government has another shot in its environmental reform locker, but it is not clear how they will use it.

In the last federal Budget, they announced $2.7 million over three years to pilot a Commonwealth-accredited regional plan to ‘support and accelerate development in a priority regional area’. Tiny as it is, this is a response to one of Professor Samuel’s 38 reform recommendations.

Accrediting bioregional plans under the EPBC Act holds the prospect of both better-protecting the environment while also fulfilling the government’s dream of getting the federal government out of giving environmental approvals on a case-by-case basis and leaving that to the states.

Especially in light of the Senate bottleneck with the ‘single touch’ legislation, you’d think the government would have moved quickly with this project, to get some runs on the board before the election.

This expectation is reinforced by the Budget itself, with the largest share of the funding, $1.179 million, allocated to the current financial year.

Yet with the year almost half over, there’s been no announcement of a partnership with a state or territory for the pilot plan.

Going to plan(?)

So, is the federal government taking regional environmental planning seriously? If it does, there’s a lot of groundwork to do and statutory requirements to be met. ‘Bioregional’ plans, as the EPBC Act calls them, can be disallowed by either House of Parliament; they could also be subject to court challenge if substantive requirements were not met.

With nearly half the year gone, there’s probably not time before the election for much more than an announcement of a deal with one lucky state or territory to develop a pilot regional plan.

Not a lot of electoral bang there.

And there are also potential downsides. For example, the exercise of preparing a regional plan might reveal that the environment in that region in fact needs more protection (and more investment in recovery) that the government might like.

There’s always the base political option of not taking regional planning seriously and simply putting a federal ‘koala stamp’ on an existing, or rustled up, state plan. This could then be trumpeted as the first instalment of a major reform, though it would almost certainly bring on Parliamentary and legal challenges.

Certainly nothing for the environment in that. But would the Coalition see votes in it?

Or will it simply roll out some ‘practical environmental restoration’ (known to the rest of us as marginal-electorate-targeted environmental pork barrelling) as it did last time with the $100 million Environmental Restoration Fund?

Magic Pudding anyone?

Banner image: And for my next trick (Image by u_dg9pheol at Pixabay)

Crunch time for reform of national environmental law

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.

‘Standards’ in name only?

The government’s National Environmental Standards don’t do what you might expect

By Peter Burnett

Last month the federal government introduced the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 (the Standards and Assurance Bill).

The Standards and Assurance Bill is a follow-on to an earlier bill (the Streamlining Bill), which I’ve written about before (see Red Lines for Green Values).

The Streamlining Bill would amend the EPBC Act to ‘streamline’ environmental decision-making by enabling development approvals, following environmental impact assessment, to be devolved to states and territories. This idea used to be called the ‘one-stop shop’ approach but the government now calls it ‘single-touch approvals’.

The Standards and Assurance Bill provides for National Environmental Standards; it also establishes an independent statutory position of Environment Assurance Commissioner, tasked mainly with monitoring and auditing decision-making by states under devolved arrangements.

The standards should set hard environmental bottom lines, but if this bill goes through, they won’t. More on this in a minute, but first a little context.

Where are we going with this?

The government presents both bills as first steps in responding to the comprehensive reforms recommended by Professor Graham Samuel in his 2020 Independent Review of the EPBC Act.

While it is true that Professor Samuel envisaged the devolution of development approvals to the states as part of his reform package, it is quite a stretch to argue that these two bills are the first steps of a comprehensive reform process, for several reasons.

The most significant reason is that the government has not tabled a response to the Samuel Review and so we have no idea what the government’s environmental reform agenda is, if indeed it has one.

If these two bills are the first steps, then they are steps towards a secret, perhaps even unknown, destination. All we know about the government’s intentions is that its policy narrative on environmental reform has rarely strayed beyond its ‘cutting-green-tape’ mantra of regulatory efficiency.

Stuck in the Senate

But back to the two bills. The Streamlining Bill got stuck in the Senate after three crucial cross-benchers opposed it, not because they were fundamentally opposed to devolution, but because they wanted to be satisfied that devolved approvals would be made properly.

At that point, in November 2020, the government had tabled neither the Samuel Review, nor the template for bilateral agreements setting out accreditation arrangements. In other words, it was asking the Parliament to take it on trust (see Trust us? Well let’s look at your record.)

The government then introduced the Standards and Assurance Bill in February 2021. Environment minister Sussan Ley presented the Bill as a step in the reform process but, in the absence of a broader vision from the government, it’s hard not to see the Bill as an attempt to get the Streamlining Bill over the line by responding to cross bench concerns.

At first blush, the Standards and Assurance Bill does advance two key recommendations from Professor Samuel.

The problem is, that’s all it does. It’s very concerning that the government is resorting to a piecemeal approach to legislative reform.

With yet more horrific environmental news emerging in recent weeks (see ‘Existential threat to our survival’: see the 19 Australian ecosystems already collapsing), the government’s approach is mystifying: they just don’t seem to get how urgent the need for action is, or don’t want to.

When is a standard not a standard?

As to the Standards and Assurance Bill itself, it’s the provisions on the standards that worry me.

In fact, I don’t think the ‘standards’ are standards at all. If standards for decisions are set by law, you’d be forgiven for expecting that an environmental approval that failed to meet the standards would automatically be invalid and that an interested party could get a court decision to that effect.

Not so with these standards. Here, compliance with standards will be a subjective question for the decision-maker. And the question will not be about compliance, but inconsistency. In other words, the question for the federal environment minister, or an accredited state decision-maker, won’t be ‘have I complied with the standard?’ but ‘in my opinion, is this decision not inconsistent with the standards?’

Because the question of inconsistency is made a matter of opinion, the courts will tend to uphold any decision based on that opinion, provided there is a rationality of some sort to it, because the courts are extremely reluctant to substitute their opinion for that of a statutory decision-maker.

This is particularly the case when one reads on in the bill and discovers that, in forming her or his opinion about inconsistency, the decision-maker can have regard to federal or state policy, plans, programs or spending decisions, indeed anything that might conceivably be relevant.

Lowering the bar

This opens up a giant back door to ‘trade-off’ decisions, the very antithesis of meeting standards.

The explanatory memorandum tabled by the government gives the example of a decision-maker approving impacts on the values of a National Heritage place if those impacts are ‘balanced by mechanisms that promote those values (which may, for example, be delivered through funding of activities by a state relating to the promotion of those values)’.

I have my own examples, hypothetical of course.

The federal environment minister might decide that a decision to demolish part of the Australian War Memorial (a National Heritage place) is ‘balanced’ by a government decision to spend a lot of money on building a new exhibition hall. Thus a standard that says the fabric of heritage buildings should be conserved could be met by demolishing some of that fabric!

Or a state minister might decide that the loss of a population of a critically endangered species is ‘balanced’ by an investment in research on the species, even if the standard says that all populations of critically endangered species should be maintained.

Note that these ‘balancing’ decisions would not required to comply with federal offsets policy, even though they are offsets by another name. So the bill opens a possible reduction in standards.

And just in case a nervous state decision-maker thought they couldn’t come up with a ‘balancing’ state policy, plan, program or spending decision (hardly likely), they can apply to the federal minister for an exemption in the ‘public interest’! Perhaps states will resort to this if they want to approve a controversial development and shift the environmental blame to Canberra!

But wait, there’s more

As if this wasn’t enough, the minister said in her second reading speech that the initial set of standards would reflect the existing EPBC Act, ie she will ignore the standards recommended by Professor Samuel, even though she’s had them since 30 October last year. The problem with the existing standards is that they are all either process driven, or so broad that only the most extreme decision would contravene them.

Moreover, once the states are accredited under existing standards, they, and development interests, can be expected to push back hard against any proposals to tighten the standards, probably relying on arguments about moving the goal posts and costing jobs.

Standards in name only

It all boils down to this: if the Standards and Assurance Bill is passed, the standards we will get will be standards in name only. They won’t be a step forward, but backwards.

Cross-benchers looking to be satisfied that devolved approvals would protect the environment are surely facing disappointment.

Postscript: The Senate Environment and Communications Committee is conducting an Inquiry into the Standards and Assurance Bill. Submissions are due by 25 March. See: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/Protectionandbiocon

Image by Alain Audet from Pixabay

A major report excoriated Australia’s environment laws. Sussan Ley’s response is confused and risky

By Peter Burnett

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

It’s official: Australia’s natural environment and iconic places are in deep trouble. They can’t withstand current and future threats, including climate change. And the national laws protecting them are flawed and badly outdated.

You could hardly imagine a worse report on the state of Australia’s environment, and the law’s capacity to protect it, than that released yesterday. The review of the Environment Protection and Biodiversity (EPBC) Act, by former competition watchdog chair Professor Graeme Samuel, did not mince words. Without urgent changes, most of Australia’s threatened plants, animals and ecosystems will become extinct.

Federal environment minister Sussan Ley released the report yesterday after sitting on it for three months. And she showed little sign of being spurred into action by Samuel’s scathing assessment.

Her response was confusing and contradictory. And the Morrison government seems hellbent on pushing through its preferred reforms without safeguards that Samuel says are crucial.

A bleak assessment

I was a federal environment official for 13 years, and from 2007 to 2012 was responsible for administering and reforming the EPBC Act. I believe Samuel’s report is a very good one.

Samuel has maintained the course laid out in his interim report last July. He found the state of Australia’s natural environment and iconic places is declining and under increasing threat.

Moreover, he says, the EPBC Act is outdated and requires fundamental reform. The current approach results in piecemeal decisions rather than holistic environmental management, which he sees as essential for success. He went on:

The resounding message that I heard throughout the review is that Australians do not trust that the EPBC Act is delivering for the environment, for business or for the community.

A proposed way forward

Samuel recommended a suite of reforms, many of which were foreshadowed in his interim report. They include:

national environmental standards, legally binding on the states and others, to guide development decisions and provide the ability to measure outcomes
applying the new standards to existing Regional Forest Agreements (RFAs). Such a move could open up the forest debate in a way not seen since the 1990s
accrediting the regulatory processes and environmental policies of the states and territories, to ensure they can meet the new standards. Accredited regimes would be audited by an Environment Assurance Commissioner
a “quantum shift” in the availability of environmental information, such as accurate mapping of habitat for threatened species
an overhaul of environmental offsets, which compensate for environmental destruction by improving nature elsewhere. Offsets have become a routine development cost applied to proponents, rather than last-resort compensation invested in environmental restoration.

Under-resourcing is a major problem with the EPBC Act, and Samuel’s report reiterates this. For example, as I’ve noted previously, “bioregional plans” of land areas – intended to define the environmental values and objectives of a region – have never been funded.

Respecting Indigenous knowledge

One long-overdue reform would require decision-makers to respectfully consider Indigenous views and knowledge. Samuel found the law was failing in this regard.

He recommended national standards for Indigenous engagement and participation in decision-making. This would be developed through an Indigenous-led process and complemented by a comprehensive review of national cultural heritage protections.

The recommendations follow an international outcry last year over mining giant Rio Tinto’s destruction of 46,000-year-old caves at Juukan Gorge in Western Australia. In Samuel’s words:

National-level protection of the cultural heritage of Indigenous Australians is a long way out of step with community expectations. As a nation, we must do better.

Confusing signals

The government’s position on Samuel’s reforms is confusing. Ley yesterday welcomed the review and said the government was “committed to working through the full detail of the recommendations with stakeholders”.

But she last year ruled out Samuel’s call for an independent regulator to oversee federal environment laws. And her government is still prepared to devolve federal approvals to the states before Samuel’s new national standards are in place.

In July last year, Ley seized on interim reforms proposed by Samuel that suited her government’s agenda – streamlining the environmental approvals process – and started working towards them.

In September, the government pushed the change through parliament’s lower house, denying independent MP Zali Steggall the chance to move amendments to allow national environment standards.

Ley yesterday reiterated the government’s commitment to the standards – yet indicated the government would soon seek to progress the legislation through the Senate, then develop the new standards later.

Samuel did include devolution to the states in his first of three tranches of reform – the first to start by early 2021. But his first tranche also includes important safeguards. These include the new national environmental standards, the Environment Assurance Commissioner, various statutory committees, Indigenous reforms and more.

The government’s proposed unbundling of the reforms doesn’t pass the pub test. It would tempt the states to take accreditation under the existing, discredited rules and resist later attempts to hold them to higher standards. In this, they’d be supported by developers who don’t like the prospect of a higher approvals bar.

A big year ahead

Samuel noted “governments should avoid the temptation to cherry pick from a highly interconnected suite of recommendations”. But this is exactly what the Morrison government is doing.

I hope the Senate will force the government to work through the full detail of the recommendations with stakeholders, as Ley says she’d like to.

But at this stage there’s little sign the government plans to embrace the reforms in full, or indeed that it has any vision for Australia’s environment.

All this plays out against still-raw memories of last summer’s bushfires, and expected pressure from the United States, under President Joe Biden, for developed economies such as Australia to lift their climate game.

With the United Nations climate change conference in Glasgow in November, it seems certain the environment will be high on Australia’s national agenda in 2021.

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

Image by pen_ash from Pixabay

Red lines for green values

What ‘standards’ are we prepared to accept in an overhaul of Australia’s national environment protection laws?

By Peter Burnett

When Professor Graeme Samuel’s Independent Review of the Environmental Protection and Biodiversity Conservation Act (EPBC Act) is tabled, which must occur by early February, we can expect to see recommendations for a complete overhaul of Australia’s national environment protection laws.

In an interim report in July, Samuel declared the EPBC Act to be a failure. Auditor-General Grant Hehir reached similar conclusions in his contemporaneous review of federal environmental approval processes under the same Act.

Despite having received the Samuel Review on 30 October, the Government continued to press a bill it had introduced in August to ‘streamline’ environmental approvals by devolving approval powers to the States in advance of the Review.

Professor Samuel had supported devolution in his interim report in July, but only in the context of a full reform package built on a foundation of his proposed National Environmental Standards.

A Senate Inquiry into the streamlining bill prompted key crossbench Senators to oppose it, not because they were necessarily opposed to devolution but because the government refused to provide them with the Samuel Review and other key supporting documents.

At the last moment, environment minister Sussan Ley provided the Inquiry, and thus all of us, with a copy of the draft Standards from the Samuel Report.

The draft Standards are the key to national environmental reform and thus worth a closer look, even without the benefit of the full Samuel Report.

Why set standards?

The standards deal with the so-called ‘matters of national environmental significance’ that are protected by the EPBC Act. Some of these like World Heritage and threatened species are well known. Others, such as internationally significant ‘Ramsar’ wetlands, are not.

Despite being confined to the Commonwealth’s responsibilities, the standards address the bulk of Australia’s most significant natural environmental and heritage values (other than climate), and have implications for the rest.

A key problem with many environment protection laws, including the EPBC Act, is that they require decision makers to follow due process and to consider various policies and principles (in Australia, often built around the concept of ‘ecologically sustainable development’) but without setting a bottom line based on maintaining essential environmental values and functions.

This enables a culture in which decision-makers can, and often do, pay lip service to the environment while approving its ongoing decline. Sometimes this lip service is paid by burdening industry with numerous ‘strict conditions’, thus delivering a ‘lose-lose’ outcome.

National Environmental Standards could change all that. Their key purpose is to set minimum environmental outcomes, including for decisions devolved to states.

A good set of environmental standards will identify our most important environment and heritage values and define the level of environmental function needed to maintain those values over time. The effect of standards is to place off-limits any deliberate degrading of these values and functions. One result is that significant or irreversible environmental loss cannot be traded for an economic or social gain, no matter how large, except possibly in national emergencies.

The Samuel Standards

Professor Samuel delivered a set of 10 national environmental standards, one overarching and one for each of nine matters of national environmental significance. The Standards would be relevant to activities and decisions at all scales but their most obvious application would be in assessing development proposals.

Apart from being innovative in themselves, the standards introduce policy concepts such as a ‘principle of non-regression’ and the ‘ecological feasibility’ of biodiversity offsets.

They also give new recognition to some not-so-new concepts such as the need to consider the impacts of development proposals on a cumulative basis. This would address a long-standing concern of environmentalists that individual developments chip away at environmental values, a process known colloquially as ‘the death of a thousand cuts’.

Addressing cumulative impacts implies there should be a bottom line for each species and ecosystem. To take a current example, it implies that government should determine a minimum viable habitat and population for koalas, probably for each population region. As this threshold of viability was approached, development approvals with koala impacts would become increasingly difficult and ultimately impossible to obtain. (The corollary is that if the threshold has been crossed, investment in recovery and restoration is an imperitive).

The standards are certainly not perfect. In discussions within a consultative group of which I was a member, Professor Samuel made clear his dislike for ‘weasel words’, a dislike that I share.

Unfortunately, the standards retain too many of these undesirable creatures. Some, such as ‘promote’ and ‘not inconsistent with’ come from the existing Act, while others such as ‘all reasonable efforts’ are new.

There is much to welcome and discuss in these standards, but I would start with an edit. This would be for policy clarity, not drafting elegance.

Red lines for a green solution?

The standards present the Government with a conundrum. On the one hand, with the EPBC Act declared a failure and the environment in ongoing and increasingly obvious decline, the case for reform is overwhelming and the potential of the standards as a foundation for action is great.

On the other hand, implementing standards would require a major and costly upgrade of our regulatory infrastructure, starting with what Samuel has described as a ‘quantum shift’ in the availability of environmental information.

Setting standards would also amount to drawing red lines for nature. As the Brexit negotiations most-recently illustrate, red lines can attract a world of political pain.

Image by Shell brown from Pixabay

Reforming national environmental law: first get rid of it, then fix it?

By Peter Burnett

While our country (and the world) has been gripped by the unravelling saga of the CoVID pandemic, our national government has been conducting a quiet plan to devolve most decision-making under our national environmental law, the Environment Protection and Biodiversity Conservation Act (EPBC Act), to the States, before a major review of the Act hit the deck.

I think this plan has now been derailed, though as I write, a couple of sitting days remain for cross-bench deal making in the Senate.

Some background

Regular readers will know that I often write about the EPBC Act. In part this is because I have worked with this law for a long time (both as a public servant and as a researcher) and have developed a strange kind of affection for its labyrinthine ways.

But I am also keenly interested in the performance of this legislation because its ups and downs are a reasonable proxy for the general health of Australian environmental policy. Unfortunately, the EPBC Act has been having a lot more downs than ups recently.

The Act has just undergone its second 10-year review by Professor Graeme Samuel AC. Professor Samuel was scathing in his Interim Report delivered in July. He found that the Act was ineffective and had lost the trust of business and environmentalists alike. An Auditor-General’s report tabled at the same time was equally scathing of the way the Act was being administered.

The key recommendation of Samuel’s Interim Report was that a revamped EPBC Act should be based on National Environmental Standards. These would actually set some bottom lines for environmental approvals and put an end to the current ‘tick-the-process-boxes-and-then-decide-anything-you-like’ approach.

The Government received Professor Samuel’s Final Report at the end of October 2020. The Government has yet to release it.

The ‘green tape’ narrative and ‘streamlining’ environmental decisions

In the meantime, and even after the Interim Report revealed the story of a failed law and ongoing environmental decline, the Government has maintained its single-track narrative of ‘cutting green tape’ and the need for ‘streamlining’ to increase regulatory efficiency.

In fact, the Government has long wanted to devolve Federal environmental approvals to the States and it would be fair to say that since it won the 2019 election it has been champing at the bit to make it happen.

Unfortunately for the Government, the mechanism built into the EPBC Act to allow this devolution cannot work without some mostly-minor legislative tweaks, requiring the support of a Senate it does not control.

The Government’s sense of urgency seems to have got the better of it, possibly because the Prime Minister tagged environmental devolution as one of the ingredients for a post-Covid economic recovery. Documents released under freedom of information reveal that back in February the Prime Minister’s position was that to avoid pre-empting the Samuel review, the legislative tweaks would need bipartisan support.

By August, when the ‘Streamlining Bill’ was introduced, this was no longer the Government’s position. Now, the narrative was that the Streamlining Bill, although a replica of a failed bill from back in 2014 (when Tony Abbott was in charge) and lacking any of the Samuel reforms including provision for National Environmental Standards, was in fact the first tranche of reform linked to the Samuel Review.

It was left to others to make the argument that the Streamlining Bill was pre-emptive and should not proceed ahead of Samuel’s Final Report.

Initially the Government was in a great hurry, to the point that it guillotined the vote in the House of Representatives and prevented independent MP Zali Steggall from introducing an amendment to provide for National Environmental Standards.

Still in a hurry, the Government successfully opposed two attempts to have the Bill considered by a Senate Committee. Eventually however it rolled over and supported a third motion to refer the bill to committee; presumably when it became clear that the Government would not have any chance or wooing the cross-bench without committee consideration.

Senate Inquiry

So the Senate Environment and Communications Committee established an Inquiry into the Bill. Normally these things take some months, but on this occasion the Inquiry was to report within several weeks, which meant that submissions had to be written quickly and a hearing conducted within days of submissions closing.

Was this part of a deal with the cross-bench, I wondered? Is there any point in dropping everything to dash off a submission? Putting my doubts aside I wrote a submission and was lucky enough to be invited to give evidence before this Committee.

Although I had often appeared before Senate Estimates Committees as a public servant, this was the first time in which I had appeared on my own behalf and was free to say pretty much anything I wanted.

I have to say I enjoyed the experience. It was good to be having my say and to be heard by members of our apex institution.

What’s more, the questions were relevant and informed. A colleague had recently been on the receiving end of some politically-loaded questions in another committee, but there were no such antics here.

The Committee reported quickly. At the end of the day the crucial cross-bench Senators accepted the argument that it was pre-emptive to be pushing this bill through ahead of Samuel’s Final Report.

So it looks like the Streamlining Bill will not pass before that report is tabled; this must occur before the end of February.

An unexpected revelation

Sometimes this kind of proceeding produces some unexpected revelations, which is one reason that governments don’t like them: such developments can derail a carefully constructed narrative.

On this occasion, officials revealed that in addition to the Streamlining Bill, the Government had drafted, but not tabled, a provision to provide for the making of National Environmental Standards by legislative instrument (ie, something similar to what Ms Zali Steggall MP had tried to do).

This is significant because by long-standing policy, set out in the Legislation Handbook, legislation is only drafted once the Government has approved the underlying policy. In other words, laws are only drafted for introduction. The system does not allow for drafting on a contingent or speculative basis, including by individual ministers.

The implication is that the Government has actually decided to support the idea of legislated National Environmental Standards. The fact that draft legislation for the standards has not been tabled suggests one of two things.

The first is that the government is breaking its own rules by drafting legislation on a contingent basis, presumably to introduce only if it couldn’t get its Streamlining Bill through. This would be an attempt to game the Senate and is a display of bad faith.

An alternative explanation is that there was some kind of rear-guard action within the Government, most likely a move from conservatives to block legislation for national standards that might constrain State development approvals under devolved arrangements.

Both explanations seem somewhat unikely but I favour the second, as a display of bad faith towards the Senate could cruel the pitch for other government proposals. If I am right, the cause of reforming biodiversity and heritage protections could be as fraught as that of climate policy reform.

Assuming the Streamlining Bill is dead, the next step is for the Government to table the Samuel Review. Hopefully this will trigger a wide-ranging debate on the environment, focused around a set of draft environmental standards and overwhelm the government’s one-track focus on ‘green tape’.

In my view we have never really had this debate and it would be good for us all to be confronted with the question, in the broad, of how much environment protection we want and whether we are prepared to pay for it.

But will the Government table an effective reform package to replace an Act which, all seem to agree, is a failure? Or, based on the climate policy precedent, should we expect a continued one-track focus on ‘green tape’ and ‘reforms’ that do little to address the policy failures that Professor Samuel and the Auditor General have identified?

Image by 3Dinaani from Pixabay

Environmental Standards: are they really the treasure at the end of the rainbow?

What would happen if we actually got decent environmental standards?

By Peter Burnett

After several months of turbulent debate over what will become of Australia’s Environmental Protection and Biodiversity Conservation Act, we are approaching the end zone of Professor Graeme Samuel’s review. ‘Environmental Standards’ look set to become part of environmental regulation in Australia and many people, including me, are wondering whether they will be good enough and, even if they are, how will it change things.

Professor Samuel’s Independent Review of the EPBC Act is due in a month. The Government has jumped the reform gun by introducing ‘streamlining’ amendments to the Act designed to enable ‘single touch’ environmental decisions by states, replacing the dual system of federal and state decisions that we have now.

Although pitched by federal environment minister Sussan Ley as ‘the first tranche of EPBC Act reforms linked to the independent statutory review of the Act’, [link: ] this Bill is no more than a rebadged version of the Abbott Government’s 2014 ‘one stop shop’ Bill that failed to pass the Senate. It doesn’t include any of the reforms identified by Professor Samuel in his Interim Report, such as the application of binding National Environmental Standards to accredited State environmental decisions.

Once again the Government finds its path blocked in the Senate, although this time the three cross-benchers concerned are not necessarily opposed to the Bill, but only to the idea of passing ‘reforms’ without seeing the report to which the Government links them, or without a Senate Inquiry into the Bill, or perhaps both.

How will things play out?

My crystal ball isn’t good enough to see how all this might play out. Perhaps we’ll see a Senate Inquiry, not just into the streamlining Bill but into the full Samuel Report. This would put everything on the table, from threatened species protection to Indigenous heritage failures (think Juukan Gorge).

On this scenario, instead of being able to deliver the ‘single touch’ model by Christmas as part of its COVID-19 recovery plan, the Government might find itself wading through the environmental policy swamp in the Senate for months, where it does not control the numbers.

Another scenario is that, in an effort to avoid wading into the swamp, that the government cuts a deal with Labor on the policy. What if we ended up with bipartisan support for accreditation based on standards?

Are standards the answer?

On the surface, such a deal could be attractive politically and environmentally. We’d get the efficiency of ‘single touch’ decisions, with checks and balances in the form of standards: quick decisions, but not at the expense of the environment.

Unfortunately it’s not that simple.

Professor Samuel recommended a phased approach, starting with interim standards, but refined over time with increasing ‘granularity’. This might mean that early standards are too general to be enforceable and so make little difference on the ground. Moreover, once interim standards were in place, States and developers alike would probably resist the progressive tightening that would come if the Commonwealth embarked on a program of rolling out progressively more-detailed standards.

Standards would be a new element in the environmental decision-making equation. As such, they represent something of a wild card and would probably attract legal challenges as environment groups tried to establish that standards should make a real difference to decisions.

So we could get standards that don’t really work, or standards that generate controversy. Not all standards are good standards.

But what if we actually got a decent set of standards?

But what if the standards were ideal, clearly and accurately identifying what was needed to maintain or enhance the condition of important environmental values such as threatened species?

We’d still face significant problems.

First, we lack the ability to measure what’s happening to the environment on a routine and ongoing basis. We’d need to complement the standards with quality and up-to-date information. Professor Samuels said a ‘quantum shift is required in the quality of information, accessible data and information available to decision-makers’. This would be expensive and take years to implement.

Then there’s the politics. Given the parlous state of the environment, well-defined standards, applied with precision, would often throw up the answer ‘You can’t approve that. It would result in the degradation or loss of [insert environmental value here, eg significant area of critical habitat, river-flow needed to maintain a Ramsar wetland, etc]’.

I think many politicians know this, if not consciously, at least instinctively, and would not wish to go down this track. We’d be tapping into what makes the environment such a wicked problem.

‘Doing the right thing’ could come at significant opportunity cost to the economy, not to mention direct impacts on various vested interests, while the standards would place any failure to do so in stark relief. There’d be nowhere to hide, no fudges available.

The recent threatened walk-out from Government by the National Party in NSW, over new and more precise guidelines concerning koala habitat provides a foretaste of this.

Standards alone are not enough

To me, the missing link is a means to bring society along with new standards, to create a broad acceptance that maintaining a quality of life for our children, even our future selves, will require difficult decisions.

The Gillard Government sought to do this in its ‘Clean Energy Future’ climate package in 2011. One element of the package was a Climate Commission, charged with engaging with the ordinary person, through ‘town hall’ meetings and the like, to explain the need for climate action. Unfortunately, the Commission bit the dust along with the carbon price, in 2014.

I know that anything associated with the repealed carbon price is political anathema, but this is where we need to go. We need broad community acceptance that we can’t live beyond our environmental means, and to explain what that means.

After 75 years of ‘jobs and growth’ messages from Western governments, going back to US President Truman’s urging in his State of the Union address in 1945 to ‘move forward … to the full utilisation and development of our physical and human resources’, that’s a tall order indeed.

Image by Albrecht Fietz from Pixabay

Trust us? Well let’s look at your record

Can governments be trusted to set and enforce effective environmental standards?

By Peter Burnett

Can Governments be trusted to set and enforce effective environmental standards? By ‘effective’, I mean standards that protect the environment to the point of halting long-term environmental decline?

I’m asking this question because in the current debate about reform of Australia’s national environmental law, the EPBC Act, environment minister Sussan Ley is saying ‘trust me’ on two major issues, both arising from Professor Graeme Samuel’s Independent Review of the EPBC Act.

First, she is rushing through a small but controversial set of legislative changes while promising more extensive reforms to come.

These initial changes are about reducing duplication and ‘green tape’ by introducing ‘single touch’ environmental decisions. They are posing as the first tranche of reform but are in fact a recycled version of the Abbott government’s ‘one stop shop’.

Second, the Government has rejected the recommendation of the Independent Review that there should be an ‘independent cop on the beat’ to regulate States accredited to make ‘single touch’ decisions. Without such a regulator, it would be up to Minister Ley to call to account any State making decisions that didn’t comply with Samuel’s proposed National Environmental Standards.

Unfortunately, I don’t think the government can be trusted on this. But it’s not about anyone’s personal qualities. It’s about the politics. I base my argument on two examples, Regional Forest Agreements (RFAs) and the Environment Restoration Fund (ERF).

Trust us on the forests

RFA’s were developed in the 1990s as the solution to the ‘forest wars’, especially over the harvesting of old growth forests to produce wood chips. The idea was that, following an environmental assessment, Federal and State governments would produce a 20-year plan, in the form of an RFA, for each forestry region.

There are 10 RFAs across southern Australia. Each one identifies areas for harvest and sets out how the State will conserve ecological values such as threatened species. In return, the Commonwealth grants export licences for forest products covered by the RFA and exempts forestry in RFA areas from the need for development approvals under the EPBC Act.

In 2006 Bob Brown challenged a Tasmanian RFA on the ground that Forestry Tasmania were failing to deliver the protection required by the RFA for several threatened species. He won the initial challenge but lost on appeal.

The interesting point however is not who won or lost but what happened between the initial case and the appeal.

Obviously the Federal and Tasmanian governments were concerned that the appeal court would uphold Brown’s win. So they changed the wording of the RFA. Instead of requiring that the species be protected (by applying agreed management prescriptions), the amended RFA specified that the establishment of the CAR (Comprehensive Adequate and Representative) Reserve System, together with the application of the agreed prescriptions, protected the species.

In other words, instead of requiring an actual environmental outcome, the RFA deemed the agreed inputs to be delivering the outcome.* The two governments were concerned that the law might require, not just that they take action, but that they actually achieve a result!

Trust us on endangered possums

Similar sentiments can be seen at play in the Leadbeater’s Possum Cases of 2018 and 2020, in which environment group Friends of Leadbeater’s Possum took VicForests to court, twice, arguing that the corporation was failing to comply with the RFA and that as a result it had lost its RFA exemption under the EPBC Act. (The cases also related to the Greater Glider.)

The cases are complex, but in brief the Court held that to maintain its EPBC Act exemption, VicForests had to conduct its forestry operations ‘in accordance with’ the RFA.

The first challenge failed because it was based on the failure of the Federal and Victorian governments to conduct, in a timely way, the five year reviews required under RFAs. The court said these reviews, though performing a ‘critical’ role in preserving the currency, appropriateness and effectiveness of the RFA, were not integral to forestry operations.

The second challenge was based on VicForests’ failure to comply to apply the precautionary principle, as required by the Victorian Code of Practice for Timber Production, in planning its logging activities. This time the challenge succeed, because the planning process was integral to forestry operations.

Again, the interesting point here is not so much the outcomes of the cases but the attitude of governments.

First, the Federal and Victorian governments were significantly late in conducting regular reviews of the RFAs. In fact, they missed the first one altogether. And, in playing ‘catch up’, they didn’t review the five Victorian agreements individually but rolled the reviews into one.

This creates a strong impression of initial neglect on both sides, followed by a scramble to get into compliance.

Second, rather than comply with the precautionary principle by undertaking serious on-ground monitoring work, VicForests relied on ‘desktop and other theoretical methods’ which the Court found to be flawed. In fact, the Court said that VicForests had prepared ‘defensive documents … suggesting VicForests felt obliged to have a policy addressing further protection for the Greater Glider, but was reluctant to implement it’.

Again, one is left with the strong impression that protecting the environment was far from the minds of those concerned.

Trust us on restoration

As I’ve written about the Environment Restoration Fund before, I’ll just recap briefly.

This $100m fund was announced in the 2019 Federal Budget, just before the election. The fund was presented as representing ‘practical environmental action’.

The government committed nearly 80% of the funds in the form of election commitments, ie. immediately, without calling for applications and without access to the usual expert advice about how to prioritise the spending for best environmental effect.

In other words, despite serious and ongoing environmental decline, the government’s ‘practical environmental action’ was, in reality, a pork barrel. When challenged about their approach in the Senate, the government’s main defence was that the Opposition did this sort of thing too.

So, who do ya trust?

I could go on, but in my view these two significant examples alone suggest strongly that governments, irrespective of political persuasion, or whether Federal or State, cannot be trusted to implement good environmental policy. Without ginger groups such as Friends of Leadbeater’s Possum to keep them honest, or Professor Samuel’s ‘independent cop on the beat’, they have a strong tendency to ‘talk the talk’ but not ‘walk the walk’.

The politics are just too hard.

With the RFA’s, I’m betting politicians still have an indelible memory of the timber trucks encircling Parliament House, like ‘Indians’ riding around the circled wagons in an old Western, even though this occurred more than 25 years ago. Once bitten, not just twice shy but pathologically averse to stirring up the timber industry.

With the ERF, the Morrison Government was widely expected to lose the 2019 election and perhaps this was an initiative born of desperation. The fact that it worked will only suffice as justification to the most rusted-on Coalition supporters. For the rest of us, it’s only helped to reinforce the widely held view that governments can’t be trusted.

So, while it’s possible that we’ll get a reasonable set of National Environmental Standards out of the current national environmental law review, because talk and even laws are cheap, it’s much less likely that governments would implement them effectively, if left to their own devices.

Bring on Professor Samuel’s independent cop on the beat!

Image by Pixabay

*On appeal, the Full Federal Court said that the change was unnecessary and that, as a matter of interpretation, the original words only required the application of the agreed prescriptions and not the achievement of protection, but this is beside the point.

The bumblebee conspiracy

Could the quest for ‘single touch’ environmental approvals spread a dangerous feral species?

By Peter Burnett

The Government is intent on pushing through its partial agenda on environmental reform — it’s so called ‘single touch’ approvals approach — even at the expense of pre-empting the current independent review of the EPBC Act. To do that it’ll need to buy a few votes from the Senate cross benches.

In anticipation of a Parliamentary debate I’ve been digging through some recent legislative history and I’ve started to hear a loud buzzing noise. There’s a bumblebee in this equation and if we’re not careful it may soon be pollinating a weed near you.

Before I reveal the bumblebee, some background.

The buzz of ‘green tape’

As most of our readers will know (because we’ve discussed it from many angles), Professor Graeme Samuel is conducting a 10-year review of the EPBC (Environmental Protection and Biodiversity Conservation) Act and has released an Interim Report. He has recommended a new approach to environmental protection based on National Environmental Standards (which would be interim in the first instance).

One of the drivers for EPBC reform is duplication and overlap between Commonwealth and State environmental impact assessment (EIA) systems. This problem is real enough, although the Government is one-eyed about it, framing the issue pejoratively as ‘green tape’ and talking little of anything else in the environmental reform space beyond its response to this issue, ‘single touch approval’.

‘Single touch approval’ is the Government’s new name for the failed ‘one stop shop’ initiative.

The Government is so focused on this issue that it will be introducing hastily-drafted legislation, probably this week, to hand over most Commonwealth EIA decision-making authority to the States.

It says that this accreditation will be based on Professor Samuel’s Interim Standards, even though they do not exist yet.

In the meantime, Professor Samuel continues with his review. He has formed a Consultative Group to help develop an interim set of Standards. The Group consists mostly of major stakeholders such as the Business Council of Australia and Australian Conservation Foundation, but it also includes a couple of individuals (including me).

Enter the bumblebee

Apart from EIA, the EPBC Act also plays a significant part in dealing with landscape-scale threats, including weeds and pests.

One of the Threat Abatement Plans made under the Act deals with gamba grass and four other invasive grasses in Northern Australia. Ironically, many of these grasses were deliberately introduced as improved pasture plants that then escaped to become major environmental threats.

The EPBC Act also makes it an offence to possess a exotic plants or animals that are not on the Live Import List. This offence applies even to feral species that have become established here.

One such species is the large earth bumblebee (Bombus terrestris), which apparently was smuggled into Tasmania from New Zealand in the 1990s and has since become established there. (At this time, the bumblebee is not found on the mainland). The likely reason for smuggling is that the bumblebee is a very efficient crop pollinator and could be a boon to horticulture, including tomato-growing.

Several applications have been made by the horticulture industry to include the bumblebee on the Live Import List and so allow its use as a pollinator, but each application has been rejected because of the biosecurity risks, which include out-competing native bees and, through their efficiency as pollinators, exacerbating the impacts of weeds.

Could a bumblebee buy a vote?

Why am I linking weeds and feral animals with environmental review and reform? Well, as I write, the Commonwealth’s urgent Bill has yet to see the light of day. However, rumour has it that it will draw heavily on the Abbott Government’s ‘one-stop-shop’ EPBC Amendment Bill, which was introduced in 2014 and was allowed to lapse in 2016 after it became clear that it would not pass the Senate.

I went back over that 2014 Bill. Initially, I was puzzled by blandly described amendments in the proposed Bill that would allow people to apply for permission to possess live specimens of feral animals. These seemed to have no connection to the one-stop-shop reforms.

Further research revealed that this amendment was proposed by the Government to secure the support of Independent Senator Jacqui Lambie. The amendments would allow a two year ‘trial’ in Tasmania of the pollination of greenhouse-grown tomatoes by bumblebees.

Given previous assessments that this would pose unacceptable risks to biosecurity, I was shocked that Senator Lambie would seek, or worse, that the Government would agree to, such an amendment. It was only by luck that the ‘trial’ did not proceed because of opposition to the Bill on other grounds.

But some bad ideas just will not die. I was shocked again to find that even though the Bill had lapsed, the bumblebee proposal was later considered by a Senate Committee, which supported the idea unanimously! Even Senator Whish-Wilson of The Greens supported it!

The shock of the bumblebee

I also discovered that I was not the only one shocked. The Invasive Species Council, a non-profit advocacy group, published an article in the Feral Herald (best newsletter name ever!) expressing their shock that the warnings from the CSIRO and the Environment Department, together with opposition from the Honeybee Industry Council, the South Australian Government (plus bans in NSW and Victoria) and the Council itself, were not enough to deter the Committee from supporting the plan.

I’m raising all this because, once again, the Government are likely to need Senator Lambie’s support to secure passage of their hasty reforms. Given this, and the Government’s subsequent endorsement in 2019 of the Committee recommendations, I expect they will include it in their ‘single touch approval’ Bill.

As the Invasive Species Council has pointed out, legalising the use of feral bumblebees in Tasmania will create a perverse incentive for someone to smuggle them to the mainland.

A cost-benefit analysis taking this into account would find the small benefits in Tasmania to be vastly outweighed by the likely costs nationwide.

The contested arena of environmental reform is already littered with complexity, ideological conflict and vested interests. In case there was any doubt, now we can add irrationality to the list. And irresponsibility.

Image by Nel Botha from Pixabay