2020 hindsight – insights on government thinking from 20 years ago

1998 and 1999 were important years for environmental policy in Australia

By Peter Burnett

As policy researcher, I love New Year’s Day. Not because it’s a public holiday but because it’s when the National Archives of Australia release government records, including Cabinet papers, from several decades earlier. Documents used to be released after 30 years but, under a Rudd Government reform, this is being reduced progressively to 20 years. And this is great for anyone seeking deeper insights into how policies are conceived and developed.

This year Archives released documents from 1998 and 1999. I’ve been looking at the Cabinet submissions and decisions from these two years to see what environmental issues were preoccupying the first and second Howard Cabinets (there was an election in 1998).

At least, I’ve been looking at the ones that are available. Even though there are only a few hundred cabinet documents prepared each year, and their annual release is of significant media interest, Archives actually only release the ones that their history adviser regards as newsworthy. Most of the others are available on application, but you have to wait, sometimes for many months, for these files to be ‘examined’, to decide whether they contain any exempt material, usually related to national security.

The need to apply for files and then wait for some months has limited what I can write about one of the major issues, as you’ll see below. Such are the frustrations of anyone seeking insight from the official records.

What were the issues in 1998–99?

The final years of last century were very important for environmental policy, nationally and around the world.

Internationally the Kyoto Protocol had been concluded at the end of the previous year, with Australia securing a special deal, sometimes called the Australia Clause. This allowed us to increase our emissions by 8% on 1990 levels in the coming decade, when other developed countries had committed to a 5% reduction.

We had based our case on the principle of ‘common but differentiated responsibilities’, a principle developed originally to accommodate the circumstances of developing countries. We argued that this should apply to us because of our population growth and fossil fuel-intensive economy. (Which, of course, has great relevance in current debates on whether Australia is pulling its weight on climate change.)

Domestically, the Government was busy rolling out the first tranche of spending under the Natural Heritage Trust, which had been funded through the partial sale of the national telecommunications utility, Telstra. It was also in the midst of reforming national environmental law, tabling the Environment Protection and Biodiversity Conservation (EPBC) Bill, later passed in 1999 as the EPBC Act (now up for its second decadal review).

While all this was important, top of the Government’s reform agenda was the introduction of a goods and services tax (GST). This reform would deliver unexpected, possibly even accidental, environmental benefits (as I discuss below).

Winning our emissions bargain

As you might expect in the immediate aftermath of the Kyoto climate meeting, the environmental issue taking most of Cabinet’s attention was whether to ratify the protocol, and its implications for domestic policy.

Having been worried in the lead up to Kyoto that Australia’s hard line might lead to diplomatic isolation, the Government could rest easy. Australia’s tough negotiating stance had been very successful and the three ministers with climate responsibilities were able to report that the Kyoto agreement had met all of Australia’s primary objectives. (I once heard that Environment Minister Robert Hill was applauded when he entered the Cabinet room on return from Kyoto.)

They advised Cabinet that the 108% target represented a cut to business-as-usual growth of 30%, which was ‘comparable to the average for industrialised countries as a whole’. Another important achievement was international agreement that emissions from land use change and forestry (now known as Land Use, Land Use Change and Forestry, or LULUCF) would be treated much the same as other anthropogenic emissions. This was important for Australia because much of our target would be obtained through a reduction in emissions from a reduction in land clearing.

Even though Kyoto was done, the climate change caravan kept on rolling. Australia also had to settle its position for the fourth Conference of the Parties to the Climate Change Convention (COP 4 – we’ve just had COP 25).

The interesting point in our position was that we decided to push for the widest possible and most flexible international emissions trading scheme. This did not come from any government convictions about the efficacy of emissions trading, but simply to keep our options open: the US had estimated that they might meet up to 75% of their emissions task by purchasing international permits, reducing compliance costs by something between 60 and 90%!

Domestically, Cabinet agreed to update the National Greenhouse Strategy (‘National’ indicating that the States were parties) in light of Kyoto, but without allocating extra money. This was because the Government had already announced a $180 million package in the lead-up to Kyoto.

But nothing on the EPBC Act

To my surprise, there was no Cabinet submission on the EPBC Bill. I find it hard to believe that Environment Minister Robert Hill got such a major reform through without a stand-alone Cabinet submission, but I double-checked and Archives does not list any submission related to this reform beyond an earlier authority to negotiate an EPBC precursor, what became the 1997 COAG Heads of Agreement on Roles and Responsibilities for the Environment. This was the document by which the States endorsed Hill’s set of ‘Matters of National Environmental Significance’.

So I’ve requested access to some related files to dig deeper. Watch this space: I’ll report what I find.

Show me the money

There were a number of submissions relating to environmental spending. Most are no longer interesting but there was one interesting money story.

In 1999 the Government persuaded the Australian Democrats to support the introduction of the Goods and Services Tax (GST) by funding a new environmental package, known as Measures for a Better Environment. This package included some significant reforms designed to reduce transport emissions and greenhouse gases.

Some reforms were vehicle-based, including incentives for buses and trucks to shift to CNG and LPG, while others were fuels- based, including a commitment to develop national fuel standards. There were also rebates for installing solar panels and increased support for the commercialisation of renewable energy.

I heard an interesting story recently that suggests that the strength of this package might have been fortuitous. Apparently Prime Minister John Howard asked Treasurer Peter Costello how much they should be prepared to spend on such initiatives. ‘About 400’ was the reply. Howard duly offered $400m. It seems Costello was thinking $400,000.

Could it be that this is how we get significant environmental reform? Through horse-trading or accident?

Image by Pexels from Pixabay

I’m so angry I’m going to write a letter!!

How do scientists get attention when their science is ignored?

By David Salt

Our elected leaders are ignoring the science on climate change, turning their back on an unfolding biodiversity catastrophe and, in so doing, increasing our vulnerability to ‘natural’ disasters while dispossessing future generations. If the scientist’s science is not making a difference, what’s a scientist supposed to do? Well, it seems increasingly they’re penning public letters to our elected leaders pleading with them to acknowledge the science and act on the evidence (rather than hide within their ideology and continue to prop up vested interests).

Last week, 11,000 scientists from 153 countries and multiple disciplines published an open letter in the journal BioScience calling for urgent action on climate change. It pointed out that science on climate change has been well known for the past 40 years and, indeed, had only grown stronger over that time. While the letter generated considerable media attention, it was largely ignored by our political leaders.

Strengthen our environmental law

A couple of weeks ago, 240 of Australia’s leading conservation scientists published an open letter to our Prime Minister calling for stronger environmental law to protect our imperilled biodiversity. This was done in the hope that a soon to be announced decadal review of the Environmental Protection and Biodiversity Conservation (EPBC) Act might strengthen the legislation.

That review has since been announced but, despite considerable media attention given to the scientists’ letter, the government has framed the review as a way of making the environmental law more efficient, cutting the green tape that blocks economic development. And not one of the 240 scientists who signed the letter to the PM asking for stronger environmental law are on the EPBC Review Panel; indeed no biodiversity scientist is included.

Letters to governments from scientists are not an uncommon strategy employed to raise public awareness on issues, most often issues connected with sustainability. More than 12,000 European scientists signed a letter supporting the student climate strikes that took place in March this year. In New Zealand more than 1,500 academics released a similar statement of support.

Canadian scientists also seem very partial to a protest letter. Sixty Canadian scientists wrote to the Canadian PM on climate action in 2006. Eighteen hundred early-career researchers in Canada wrote to the Canadian Government in 2016 demanding scientific integrity in environmental decision making. And 250 international scientists signed a letter to the Canadian PM in 2017 warning about the international importance of Canada’s efforts on climate change.

A warning to humanity

One of the more notable letters penned by scientists on sustainability was the ‘World Scientists’ Warning to Humanity’, released back in 1992 by the Union of Concerned Scientists. It was signed by more than 1700 scientists including the majority of living Nobel laureates in the sciences.

These concerned professionals called on humankind to cut back on our environmental destruction and cautioned that “a great change in our stewardship of the Earth and the life on it is required, if vast human misery is to be avoided.”

Now, surely in a rational world, when your best brains tell you we need to change because we’re heading for disaster, you sit up and listen. But did we? Not in any way that was really measurable.

You didn’t listen last time!

Twenty five years later in 2017 a new cohort of our ‘best brain’ scientists put out a second notice to humanity pointing out we didn’t listen to the 1992 warning. In this article they also showed graphs of resource use, carbon emissions and other key environmental indicators. In their timelines of these graphs they helpfully mark 1992, the year of the first letter. In almost all cases, consumption or levels of emissions either continued on their merry ascent or even increased in rate following the first ‘warning to humanity’. No government or industry, it seems, was too concerned by what the Union of Concerned Scientists thought was important.

In the second notice to humanity the authors wrote: “To prevent widespread misery and catastrophic biodiversity loss, humanity must practice a more environmentally sustainable alternative to business as usual. This prescription was well articulated by the world’s leading scientists 25 years ago, but in most respects, we have not heeded their warning.”

So what is a letter worth? If the response to the second notice is the same as to the first (‘well articulated’) letter, expect business as usual to continue or even to ramp up.

The pros and cons of letters

It’s easy to be cynical about these letter-writing exercises. They often come over as self-righteous and pious. First notice: ‘Listen to me, I am your oracle scientist. If you keep doing what you’re doing you will be sorry.’ Second notice: ‘You didn’t listen to me last time, now you will be very very sorry if you don’t stop what you’re doing!’

As we discovered in Australia in our recent national elections, people don’t like being told they are wrong and need to change, even when the evidence is overwhelming that we do need to change.

There’s also the argument that while a ‘first’ letter sounds revelatory, by the time we reach the 14^th letter, it’s beginning to sound whiny and possibly ‘crying wolf’.

Having said this, it’s easy to be cynical and when these letters come out the deniers, party hacks and apparatchiks line up to start throwing stones; it’s easy to be cynical, but possibly it’s not all that helpful. Scientists should be encouraged to take their concerns to the broader public more often. The have the insights and knowledge that will likely prove critical when we get serious about sustainability and climate change. They need to be an active part of the broader conversation.

Communicating with non-scientists on technical and complex issues is never easy. Scientists should be rewarded when they make the effort. Many universities are now encouraging their scientists to be more active in the communication of their science (and its impact on society) to a broader non-scientist audience. We need more, not less of it.

There’s also the argument that throwing out one warning is unlikely to shift society. Change is always a challenge; just ask anyone who attempted to shift the status quo. You need to keep throwing pebbles because you never know when a message cuts through possibly precipitating widespread change.

And sometimes – when the message is well crafted, the timing is right and the need is obvious to all – sometimes a letter is what really makes all the difference. Einstein wrote* to President Roosevelt in 1939 warning that Germany might develop an atomic bomb and suggested the US should start its own nuclear program – the rest is history.

*Actually, the letter was written by the Hungarian physicist Leó Szilárd who few people knew and signed by Albert Einstein who everyone knew. The message was well crafted, the timing was right and the need obvious to all.

Image by Free-Photos from Pixabay

What’s in the EPBC Box?

Unpackaging Australia’s national environmental law

By Peter Burnett

I’ve decided to pull apart Australia’s national environmental law, the Environment Protection and Biodiversity Act 1999 (EPBC Act). I want to see what makes it tick and, perhaps more significantly, to see if I can explain what makes it tick.

I’m not doing this for fun; there are two major reviews coming up that will delve into this important law and I’d like to have my say in these reviews. If I’m going to have my say, I’ll have to go beyond just knowing what I’m talking about. I have to be able to communicate my understanding to support my point of view.

This is no easy task. A colleague of mine, with extensive experience in public policy but not environmental policy, recently tried to read the EPBC Act. He told me, with considerable frustration, that he found it virtually impenetrable.

I can also draw on personal experience. I recently gave a guest lecture about the Act as part of an environmental law course (the course was for non-lawyers). The blank looks I got from the students, and the absence of questions, challenged me to try a new approach to explaining what this important piece of legislation does.

The two upcoming reviews of the EPBC Act could have significant consequences for environmental law in Australia. The first is being carried out by the Productivity Commission and examines regulation of the resources sector. This review has just started and I discussed it in an earlier blog.

The second review examines the operation of the entire EPBC Act, something that the law requires every 10 years. This review is due to be announced in October.

Only for the ardent

The EPBC Act is around a thousand pages long! And that’s just the Act itself. This doesn’t include supporting regulations and guidelines. There are reasons for this length (and complexity).

Because of the peculiarities of Australian constitutional law, parts of the Act use arcane legal language to attach themselves to certain constitutional hooks.

The Act is also repetitive, because it applies similar processes to different things. The alternative would be to draft master provisions and apply them in multiple places through frequent cross-references. I’ve heard drafters argue that repetition makes the law easier to read but I’m not entirely convinced – what the Act gains in readability through repetition may be lost in the added length.

All in all, reading the Act is only for the ardent.

So, with the blank looks of the students still fresh in my memory, I decided to draw some pictures of it. I’d seen some well-drawn flow charts of some of the Act’s regulatory processes and thought I could do something similar, with a broad readership in mind.

I started with the idea of reverse-engineering a piece of equipment, say an espresso machine: first identify the major components, such as reservoir, boiler and coffee grinder, further dismantling each as necessary to see what it does. Then assemble the machine and observe how the components complement each other to produce a finished product.

So what’s in the box?

It turns out that the Act has 16 major components, at least as I’ve counted them (and leaving out ‘ancillary equipment’ such as compliance powers).

You can see these in my diagram below (Figure 1). The parts fall into three streams, indicating that the Act has three broad functions.

Figure 1: The main components of the EPBC Act (omitting supporting provisions such as compliance powers)

The first stream is about identifying various environmental values for protection. This mostly covers threatened species and special places. Once these values are identified, usually through a formal listing process, they are ‘protected’ by the Act. This means it becomes an offence to do something likely to harm them significantly, unless one obtains permission to do so (see stream three).

Because this is a national law, the values protected are predominantly things of high significance, such as World Heritage places or nationally-threatened species. Hence the term for many of them is ‘matters of national environmental significance’ (or MNES).

Apart from MNES, some values are there because they fall into categories that are protected by federal law alone. For example, marine species are included because the jurisdiction of the Australian states ends three nautical miles from the coast, while our Exclusive Economic Zone goes out 200 nautical miles.

The second stream is about planning for conservation. The Act doesn’t just cover planning connected to MNES and Commonwealth areas. It also provides for bioregional plans across the continent and its territorial sea, although with the major qualifier that for a region within a state (ie most of terrestrial Australia), the plans can only be done in cooperation with that state.

So far, there haven’t been any bioregional plans done with states, something I’ll discuss in another blog.

The third stream is about assessing and approving things that might harm the environmental values protected by the Act, or in the case of trade, the environment generally. The best known component in the third stream is project-based environmental impact assessment, but there is also provision for strategic environmental assessment of development.

This stream also covers assessment and approval of trade in species, whether these be endangered species under the Convention on International Trade in Endangered Species (CITES), native species for export or exotics for import.

Putting the parts together

Despite the complexity of the Act, its components do seem to fit relatively comfortably into these three broad streams. These are based on the protection and conservation of many of Australia’s most important environmental values, plus the power to assess and, if appropriate, approve (usually subject to conditions) developments that might harm what is protected and conserved.

In the broad this seems like a reasonable approach to looking after the environment while allowing for development. However, as I’ll explain in future blogs, there’s devil in the detail. In its current form, the framework does not realise its potential.

Review of ‘green tape’ for farmers throws up old conundrums – but also contains one gem

By Peter Burnett and Philip Gibbons

Wendy Craik’s review of the impact of national environmental law on farmers (Craik Review) was released quietly late last week by new federal environment minister Sussan Ley, nine months after it was received by her predecessor, Melissa Price. (That law, of course, is the Environmental Protection and Biodiversity Conservation Act 1999, or EPBC Act. It’s up for review later this year and for many years farmers have been complaining it places an unfair burden on their agricultural activities.)

Craik is a former Executive Director of the National Farmers’ Federation (NFF) and former head of the Great Barrier Reef Marine Park Authority. She is well respected by government, the farm and conservation sectors.

Useful but mostly problematic

Craik has handed over a good report. The review has produced some useful proposals, including ways to improve environmental information and to align existing research with regulatory objectives.

It does however throw up some old conundrums for government. Maybe this is why its release was delayed till after the election, and then done with little fanfare.

The review recommends keeping farmers informed about what they can and can’t do on their land by investing in environment department services and systems, yet Coalition governments have cut federal environmental resources by 40% in six years (ACF 2019). You can’t make an omelette without breaking eggs.

It also prescribes a new $1 billion National Biodiversity Conservation Trust as a remedy for biodiversity decline, an amount exceeding existing funding under the National Landcare Program. Same problem, a good proposal but requiring considerable additional resourcing.

Craik also made a number of recommendations, including nationally-aligned policies and encouraging environmental markets, that would require genuine and ongoing federal-state collaboration on policy, something that has mostly eluded federal and state governments over nearly 50 years of trying.

The conundrums are not confined to the recommendations.

The review found that only 2.7% of the 6000 referrals considered under the EPBC Act have been for agriculture.

This is a striking statistic given nearly 90% of all land clearing in Australia is for agriculture, suggesting that the EPBC Act is significantly under-applied and (from the government’s perspective) an indigestible outcome from a review originating in farmer complaints of regulatory burden.

Ley’s brief media release implies that she will defer responding until completion of a much larger review, the forthcoming second 10-year statutory review of the EPBC Act.

It is little wonder Ley is kicking the can down the road, a decision no doubt aided by current controversy concerning Minister Angus Taylor’s involvement in some of the events behind the review (Guardian 2019).

A gem of an opportunity

There is one recommendation however that presents a gem of an opportunity for immediate action.

One of the triggers for the review was complaints by farmers in the Monaro region of southern NSW about the combined effect of federal and state laws affecting the management of native grasslands on their properties (farmonline 2017).

The review prompted a ‘well-resourced’ offer from NSW that federal and state officials work together on two pilot studies, one in the Monaro, to identify what biodiversity needs protecting under both federal and state law and how to achieve this.

Craik supported the idea, proposing the production of non-statutory regional plans under an independent chair.

The NSW offer is significant. The traditional approach of the states towards federal environmental regulation has been to resist and contain, especially in regard to on-ground management, which the states have seen as their exclusive role and a major bulwark against federal jurisdiction creep.

Previous attempts at regulatory collaboration, such as the ‘one-stop-shop’ for development approvals, have focused on regulatory change negotiated between officials rather than on-ground management and service-delivery, and have been conducted in an atmosphere that was at least lacking in trust, if not adversarial.

A genuine attempt to work together on the ground, along with local stakeholders and twin aims of protecting what is ecologically significant while also making life easier for farmers and other businesses, has much better prospects of building the trust necessary for effective regulation. It would also be a valuable investment in social capital.

Cynics may regard the prospects of successful on-ground collaboration as limited. The problem is, we have tried most of the other options with limited success, especially over time.

The environment continues to decline, dramatically according to the latest UN report. The opportunity to trial collaborative regional planning is too good to leave in the in-tray.