Announcing ‘Australia’s Strategy for Nature’

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The strategy you have when you have to have a strategy (without actually having one)

By Peter Burnett

In November 2019 Australia’s federal and state environment ministers signed off on a new national biodiversity strategy. Under the title Australia’s Strategy for Nature, it replaces the previous strategy, Australia’s Biodiversity Conservation Strategy 2010–2030 (the 2010 Strategy), even though the 2010 strategy had more than 10 years to run.

The new strategy comes with its own shiny new website, Australia’s Nature Hub, and it reads pretty well. But here’s the kicker: the new strategy doesn’t actually contain any strategies (ie means to achieving ends).

And there’s no new money or programs to support it, although the new website does serve as an aggregator for existing strategies and programs from various governments. As we’ll see below, the implication seems to be that if you think we need to do more to halt biodiversity decline, do it yourself!

It’s a ‘compliance model’

So what’s going on? If the new strategy were a car, it would be a ‘compliance model’, a car that manufacturers produce in limited numbers to comply with a regulatory requirement to sell ‘zero emission’ vehicles.

The best known example of a compliance car was the EV1, an electric car that General Motors produced in America in the late 1990s. Instead of selling the car to customers, GM leased it to them; once the leases expired it recalled the cars and sent them to the crusher.*

In this case, the requirement generating a compliance mentality is Article 6 of the Convention on Biological Diversity (CBD). Australia joined the CBD, along with most other countries, soon after it was opened for signature in 1992. Article 6 requires each member country to ‘develop national strategies … for the conservation and sustainable use of biological diversity’.

Australia’s history with biodiversity strategies

Australia had started work on a national biodiversity strategy even before the CBD was signed. In fact, in his 1989 Environment Statement, Our Country, Our Future, Prime Minister Hawke made commitments, not just to develop a national biodiversity strategy, but for Australia to play a leading role in what would become the CBD. In marketing terms, we weren’t just ‘early adopters’ in biodiversity policy, we were ‘innovators’.

As they say in the classics, it’s been all downhill from there. The strategy was ready in 1993 but languished when it proved difficult to get the states on board. It was eventually adopted by all Australian governments in 1995, under the title National Strategy for the Conservation of Australia’s Biological Diversity. It’s most significant measures were a national commitment to undertake bioregional planning and a target of arresting and reversing the decline of native vegetation by 2000. The strategy also had major flaws, setting the unfortunate precedent of being adopted without new resourcing, on the basis that many of its measures fell within the scope of existing programs.

There was a change of government federally soon after the strategy was adopted and incoming environment minister Robert Hill worked hard, but with limited success, to give it life. He included provisions for bioregional planning in Australia’s new national environmental law, the Environment Protection and Biodiversity Conservation Act 1999, but these have barely been used. Later, following a five year review of the strategy, he would develop ‘national objectives and targets’, including an objective of halting land clearing, and seek to incorporate these into bilateral agreements with states under the National Heritage Trust, a major funding program. Despite some success, state resistance was ultimately too great to deliver much of significance.

In 2009 another environment minister, Peter Garrett, succeeded in getting a new strategy (the 2010 strategy) endorsed, including 10 ambitious national targets for 2015. In their foreword to the 2010 strategy, ministers noted that despite much effort, biodiversity continued to decline and, as a result, ‘we need to take immediate and sustained action to conserve biodiversity.’

In fact, the problem was so serious that ‘business as usual is no longer an option’. Despite these strong words, most of the 2015 targets were not met (or could not be measured) and I suspect this was the real reason why environment ministers decided to replace the 2010 strategy early: to make the strong language and unmeasurable targets disappear.

A ‘zero emissions vehicle’ for the wrong reasons

Now governments are taking a new tack. Strong warnings and ambitious targets have been replaced by an exhortation that we all work together. The new strategy is sold as an ‘overarching framework’ and is said not only to ‘set the framework for local, state/territory and federal government actions’, but also to ‘help those outside government identify where they can contribute to support national areas of focus’.

I see this as code for ‘all care but no responsibility’: government will identify the problem and the point to both solutions and ways to measure progress, but without specifying any actual strategies in the document. As a result, if ‘those outside government’ (ie, you and me) want to halt the relentless decline of biodiversity it Australia, we will have to do it ourselves, as none of our governments have seen the need to announce any new measures to support this new ‘strategy’.

The only conclusion to be drawn is that Australia’s Nature Strategy has been produced only to comply with the CBD. It’s a ‘compliance model’ and if I were its owner I’d follow GM’s recipe by recalling it and sending it to the crusher. The difference is that I would be doing this, not because its success threatens business, but because its likely failure threatens business (and everything else that depends on biodiversity). This is a ‘zero emissions vehicle’, not because it is propelled by the latest technology, but because it only works if self-propelled. Fred Flintstone would feel right at home in it.

*Killing the electric car: if you’d like to know more about the EV1, it was the subject of a 2006 documentary, Who Killed the Electric Car?

Image by David Zapata from Pixabay

Federal environmental planning: the broken leg of the stool

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Our national environmental law is a bit wobbly because it doesn’t take planning seriously

By Peter Burnett

Our big and complex national environmental law is called the Environment Protection and Biodiversity Conservation Act 1999 (or EPBC Act). When you unpack its major components (as I did in a recent blog) they sort themselves quite nicely into three streams: 1. Identify Matters of National Environmental Significance (MNES) for protection; 2. Plan for Conservation; and 3. Assess and Approve for Development or Trade.

The streams can be seen as the three legs of a stool, with protecting, conserving and approving designed to combine to ensure that our most important environmental values are looked after, but without blocking economic activity more than is necessary. At least, that’s the theory. Unsurprisingly, there are some problems in practice and in this blog I’ll start with the biggest: the planning leg is half-missing.

One leg is half-missing

The Act provides a planning mechanism for everything that it protects or conserves: bioregional plans for biodiversity and other values; wildlife conservation plans for listed marine, migratory and conservation-dependent species; recovery and threat abatement plans for threatened species; and management plans for heritage places, Ramsar sites and Commonwealth reserves.

The problem is that many of these plans are dated, underdone, or were never created in the first place. I’ll illustrate by examples. In each case I looked up the relevant place or plan on the Department of the Environment and Energy website [www.environment.gov.au] and followed the links.

Dated plans

A number of plans look dated to me. For example, the very first recovery plan listed in the Species Profile and Threats Database, for the great desert skink, was made in 2001 and expired in 2011. The executive summary of the plan says that the Recovery Team will review implementation progress annually and any changes made to the plan will be made available to all stakeholders. There was nothing on SPRAT to indicate whether this had occurred.

Underdone plans

Other plans look underdone. I picked the recovery plan for Carnaby’s cockatoo, an endangered species found in the woodlands and plains around Perth. The species has been controversial because Perth’s development often involves clearance of the cockatoo’s habitat.

The recovery plan identifies eucalypt woodlands as critical to the survival of the cockatoo, in part because they provide breeding hollows, which the plan notes take 100-200 years to develop. It goes on to identify protection of nesting habitat as a recovery action and adopts as a performance measure for this the maintenance of the extent of nesting habitat (trees with nesting hollows).

The implication seems clear: don’t clear old growth woodlands. Moreover, the EPBC Act prohibits the environment minister from acting inconsistently with a recovery plan, so a plan containing a statement like this would block development in these areas.

However, the plan stops far short of such language. Under the heading ‘guide for decision makers’, it states only that the success of the plan requires that decision-makers avoid approving activities that will adversely affect the cockatoo, and that they should minimise or mitigate those impacts that cannot be avoided (ie. apply the ‘avoid, mitigate, offset’ hierarchy). The plan goes on to cite WA EPA guidance that it is ‘unlikely to recommend’ approval of projects with a significant adverse impact on the species.

In effect, the plan simply points out that if decision-makers want to save the cockatoo, significant impacts should be avoided, or at least minimised. By pulling its punches, the plan leaves it open to the federal minister to approve the destruction of critical habitat, provided he or she duly considers the plan and applies the mitigation hierarchy to the extent the minister regards as practicable.

Missing plans

At a larger scale, looking at biodiversity more generally, there are no bioregional plans for Australia’s 89 terrestrial bioregions. Nil, none, zero!

Fortunately, Australia’s marine area is much better catered for, with bioregional plans for four of five marine bioregions, supplemented by management plans for marine park networks in each bioregion plus one for the Coral Sea Marine Park.

It’s the politics stupid

Of course, there is a practical explanation for the absence of terrestrial plans. Bioregional plans require joint federal-state action, except on the small portion of land classed as Commonwealth land. Federal cooperation is never easy, even between governments of the same political flavour. Moreover, preparing lots of plans would be expensive and could well stir up local concerns about the whole gamut of development and conservation issues in the region concerned. Such a scenario is, to say the least, politically unappealing.

Yet without bioregional plans project-based environmental impact assessment (EIA) must proceed without contextualised, place-specific guidance on what needs to be conserved and where development can occur. This perpetuates one of the major flaws with project-based EIA, the ‘death of a thousand cuts’, where small environmental impacts are approved in ignorance of their cumulative effect.

The bottom line

While under-done recovery plans may provide some of the guidance that should be coming from the absent bioregional plans, at the end of the day the stool has only two-and-a-bit legs, leaving development decisions pretty much at the minister’s discretion.

This means that a minister who wasn’t really interested in protecting Matters of National Environmental Significance won’t find themselves hemmed in by plans. Even a minister determined to protect and conserve MNES would find that the absence of contextual information a major problem in seeking to make good decisions, just as it’s hard to see where you’re going in a fog.

Who wants a stool with two and half legs?

Image: A pair of Carnaby’s cockatoos feeding on banksia. This species is endemic to south-western Australia. It has experienced widespread loss of nesting and feeding habitat and is considered endangered under the IUCN Red List, and Australian federal and state legislation. Since the 1950s, numbers of the Carnaby’s cockatoo have declined by more than 50%, with its range contracting by over 30%. Image by Leonie Valentine.

What’s in the EPBC Box?

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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

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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.

All the way with EIA

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There’s still value in persisting with Environmental Impact Assessment

By Peter Burnett

For more than a decade I’ve been working and researching in the field of Environmental Impact Assessment (EIA). I keep telling myself to move on, that my priorities lie in overarching environmental policy frameworks and that EIA is just one decision-support tool (admittedly one that is very popular), best adapted for dealing with local issues. But I can’t stay away from EIA. Is there new life for this old tool?

Why can’t I stay away from EIA?

It’s partly a ‘boys-and-their-toys’ thing. I’m a lawyer by training and EIA has developed from a simple idea of gathering all the relevant environmental information for decision-making into a complex nested set of processes that can take up hundreds of legislative pages. It’s even more complicated in Australia’s federal system, which has EIA at national and state levels. I admire the sophistication of the EIA process as it has evolved and enjoy nutting out how this complicated system applies to any particular development project.

It’s partly an ‘in-the-club’ thing. Having been responsible for administering EIA under Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and having been accepted by peers as having some knowledge and expertise, I found myself reluctant to let this ‘club membership’ expire when I changed status from senior public servant to PhD candidate in 2013. So I found a way to make EIA one of my case studies in a thesis that was focused on high level policy relating to sustainability.

But the strongest reason was my belief in the potential of this tool. My instinct was that even though EIA didn’t seem to be achieving its original aspirations of leading to decisions that would protect the environment, not just in particular cases but across the board, it still had potential to play a major role in doing so.

But I wasn’t quite sure why it didn’t seem to work or how it might be improved, beyond the consensus view to make more use of strategic approaches to EIA. This would avoid the ‘salami slicing’ or ‘death of a thousand cuts’ involved in project-based EIA decisions such as the approval of individual mines or housing divisions.

Regulating discretion

One of my research findings concerned the way in which discretionary decision-making works in our legal system. EIA decisions need to be at least partly discretionary to allow decision-makers to tailor approval conditions to a multitude of cases and circumstances. Yet if that discretion is to be exercised consistently, it must also be constrained.

The problem here stems from the way the legal system has evolved to regulate discretion. First there are general principles of administrative law, which are directed to making sure that decision-makers takes fair decisions based on all the relevant information, at the same time preventing them from straying off the reservation by taking irrelevant factors into account or doing someone else’s bidding. These general rules are usually supplemented in EIA by statutory directions to consider specific environmental factors, such as the principles of Ecologically Sustainable Development (ESD).

But in either case the courts treat these as rules of due process. Short of the rare instances in which a substantive decision has no apparent rational basis (or in special cases such as the NSW Land and Environment Court) they won’t go into the merits of the decision. They regard merits as the province of governments or their appointed statutory expert decision-makers.

So they won’t tell a decision-maker what to decide. Fair enough. But Parliament can tell the decision-maker what to decide, although this is harder than it seems.

Take the EPBC Act. At first blush, it seems to be steering decision-makers towards a goal of ESD. But on closer examination the Act uses qualified language, saying it wants to ‘promote’ ESD. Then it takes a reductionist approach and breaks (an undefined) ESD into five ‘principles of ESD’ which the decision-maker must simply ‘consider’.

We’re back to due process. If he or she chooses, the decision-maker can pay lip service to these ‘considerations’ and then take any decision at all, short of irrationality.

Even if the Act used the clearest of language to define ESD and direct decision-makers to achieve that goal in all their decisions, this is probably not enforceable, because in such a broad context the courts would regard the question of whether any given decision achieved ESD (or other clearly defined policy goal) was one of merits or expertise, not law.

Can we fix it?

My research conclusion was that there were only two ways to ensure that individual EIA-based decisions deliver environmental policy goals in an enforceable way. Both involve translating the policy goal into limits of acceptable action at any given place and narrowing the scope for discretion, and the two approaches are related.

The first is environmental planning. In an ideal world of environmental plans, if you want to build a mine, the relevant plan will tell you whether this is possible on an unrestricted basis, or on conditions; for example that there were offsets available for certain vegetation losses.

The second, a combination of specific decision rules plus comprehensive environmental information (which often needs to be geospatial, thus bearing some resemblance to planning) will achieve a similar result. If you want to build a mine and there is a rule against clearing critical habitat, the answer depends in part on whether the mine site is listed as critical habitat. And a decision to approve a mine in an area of critical habitat would be challengeable in court, because this is not an instance of discretion but the breach of a rule.

There would still be a role for EIA and discretion under both these approaches, but its task would be more oriented to the detailed conditions under which the proposal should proceed. Of course, these approaches would be expensive and, in our federal system, particularly complex.

They also shift decision-making away from pluralism and trade-offs towards a more constrained application of rules. This is uncomfortable territory for politicians, but a necessary evil if we are to make EIA an instrument of our high-level policy goals.

Sticking with EIA

So I found a way to satisfy my urge to stay involved with EIA, by connecting it to policy and information. To highlight that connection, consider this poetic metaphor inspired by John Masefield’s poem, Sea Fever. We need to shift our attention from the ‘tall ship’ of EIA to the entire voyage of environmental decision-making, which requires both a clear sense of destination (policy) and fulsome environmental information, ‘a star to steer her by’.

EIA is an important tool but unless we have a clear sense of where we want it to take us and ensure the necessary information is available to guide its application, then this venerable tool will not be delivering the environmental outcomes it was established for.

Image by MonikaP from Pixabay

Twenty Years of the EPBC Act – looking back, looking forward

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Reviewing our national environmental law as if it mattered

By Peter Burnett

It’s hard to believe but Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), is twenty years old. Given that it lies at the centre of so many important and controversial debates, how is this 20-year old piece of legislation tracking? In a time of climate change, extinction and growing uncertainty, is the EPBC Act still fit for purpose?

As is appropriate for such a critical piece of law, the EPBC Act gets a statutory review every 10 years. That means the EPBC Act is up for its second review later this year. Does it need a little tinkering or a major overhaul?

Because I had been responsible for the administration of the EPBC Act during the first review in 2009, I was asked recently* to share my reflections on how we should frame the review of the EPBC Act.

To my mind, this is a valuable opportunity for environmental policy reform and the thing we need to resist is the notion that it’s simply a matter of looking inside the Act to see how we can make it work better. The way forward lies on the outside of the Act, and I’d like to pose five big ‘outside’ questions.

But before I talk about these, I should tell you briefly what happened to the first review, led by Dr Allan Hawke, a former federal department head, and completed in 2009. Because what happened back then may help us make the most of this second review.

A potted history of the Hawke Review

The Hawke Review was comprehensive in approach and well-packaged in its recommendations.

Hawke was assisted by an expert panel and engaged extensively with stakeholders. He laid the ground well by packaging his recommendations in an integrated nine-point plan, which had something for everyone: new environmental protection for environmentalists; streamlining of regulation for business; stronger institutions for administrators; and a fresh name and look for maximum political effect.

Unfortunately these outcomes never materialised.

It was 2010 by the time government was able to act on the review and (as some will remember) there was significant political turmoil following a leadership ‘coup’ against Prime Minister Rudd, precipitated in part by a proposed mining tax. That culminated in the watering down of the tax, an election, a change of environment minister and a minority government. Of course, minority government in turn increased the ‘transaction costs’ of reform.

New environment minister Tony Burke announced a detailed government response to the Hawke Review in 2011, but in the ensuing period the minority government was giving high priority to pleasing business generally (and mining companies in particular). The Government thus focused its attention on a ‘one-stop-shop’ initiative to reduce regulatory duplication by using an existing mechanism in the EPBC Act, under which States could be accredited to approve development projects on the Federal Government’s behalf. 

As a result, progress on the EPBC reforms slowed to the point where, late in its term, the Gillard Government decided that there wasn’t enough time to get them through and deferred them to the next Parliament. But the next Parliament brought a change of government and the incoming Abbott Government returned to pursuing the ‘one stop shop’.

So, except for some administrative changes, including a policy on biodiversity offsets, the response to the Hawke Review was never implemented. Good policy reform foundered on the rocks of difficult politics.

Back to my questions for the forthcoming review.

The big ‘outside’ questions

1.‘What are we trying to achieve?’

A goal well defined is a goal half achieved. Neither the EPBC Act itself, nor the policy or explanatory documents that surrounded it, answer this question. The Act does include goals such as ecologically sustainable development, but expresses them in qualified language and leaves it open to decision-makers to simply pay lip service to them, so this fundamental question remains largely unanswered.

2. How do we allocate roles & responsibilities between federal and state governments?

Australia’s Constitution operates to share these roles and responsibilities between the two levels of government, but not in any clear or obvious way. However, there is considerable scope for the two levels to agree on a sensible division. In fact there are some agreements of this type, but they date back to the 1990s and were less than ideal even at the time. The EPBC Act is built in part on these agreements and so they need to be renegotiated before major legislative reform.

3. Given that roles are shared, how should the two levels of government cooperate, especially on areas in which overlap in unavoidable, such as environmental information?

Again, the 1990s agreements addressed this but implementation has been desultory. Governments should have tried harder.

4. How do we regulate discretion to ensure conformity with goals?

The freedom that decision-makers have under the current Act is too great: even if the goals of the Act were clear, there is no guarantee that discretionary decisions will implement them. Discretion is necessary in regulatory schemes, but my research suggests there are only two ways to ensure that such discretion is confined to implementing the goals of the Act. The first is to make environmental plans and require that decisions conform to the plans. The second is to have a series of specific decision rules (for example, not to approve development in listed critical habitat). Because characteristics such as critical habitat are usually geospatial, the two approaches are related.

5. How do we ensure that the Act is funded so that it is commensurate with its goals?

The EPBC Act has never been properly funded, going right back to the time when it’s principal architect, Environment Minister Robert Hill, was unable to secure additional funding for his new law. This is one reason why several major mechanisms under the existing Act, including provision for bioregional planning and grants for information-gathering, have been little used. In the absence of election commitments or an environmental crisis, in the current culture there is a high risk that Budget offset rules would strangle reforms.

The bottom line

I leave you with this thought. Unless the government elected later this month addresses the big ‘outside’ questions, the second statutory review of the EPBC Act can only deliver incremental change. That would be a wasted opportunity.

*The National Environmental Law Association (NELA) recently held a short conference to promote discussion of the upcoming review, under the theme of ‘Twenty Years of the EPBC Act – looking back, looking forward’. NELA asked me to reflect on the conference theme.

Image by Zesty from Pixabay