Environmental legislation now before federal parliament offers an opportunity to go beyond that of removing “green tape”. Devolution to the states of federal responsibilities without an independent regulator and funding support will ensure our environmental trajectory remains unsustainable.
Just what is the great rush to change the Environmental Protection and Biodiversity Conservation (EPBC) Act in this session of Parliament? Yes, there may be a case for “streamlining” the assessment process with a so-called “one-touch regime” as recommended in the interim review of this federal legislation by Graeme Samuel. But would this quick attempt at “green tape” removal really achieve the desired outcomes when so much needs to be done at national, state, and local levels to address the challenges facing on-going (and growing) threats to environmental conditions and values. One can only hope that the Senate will examine what the new bill contains and its potential consequences.
I chaired the second Australia State of Environment (SOE) Committee in 2001 soon after the EPBC Act 1999 came into effect. We closely followed the process set out in the first independent report (1996) which established procedures for 5-year reporting as required in the EPBC Act. Despite all the issues associated with having to analyse incomplete and often inconsistent data sets, we were confident enough to confirm patterns of degradation documented in SOE 1996. Subsequent SOE reports provide further evidence of pressures on the environment, degrading conditions, and inadequate responses to meet the challenges facing the nation. In particular, our ability to measure trends in environmental asset condition and effectiveness of investment is questionable, as also noted in Auditor-General reports. Samuel made similar findings with his reference to the current environmental trajectory being “unsustainable”.
In the conclusion of SOE 2001 we wrote: “The Commonwealth Government is clearly in a key position to provide the necessary leadership to guide the nation further along the arduous path towards sustainability, but the states and territories, supported by local communities, are equally important…The key to Australia’s sustainable future lies in ourselves: our attitudes towards the environment, our heritage and each other. Positive change can be achieved when people see options for improvement in their quality of life and opportunities for their children and grandchildren. This change is accelerated when public awareness is translated into political action that influences the activities of our society to care for our country”.
That was 20 years ago! What has changed? Samuels tells us that our national legislation, the EPBC Act 1999, is “not fit to address current or future environmental challenges”. In the interim report he saw the need for changes to the Act and Minister Sussan Ley quickly agreed to some but not others. There was also a decision to continue the consultative process on a set of national standards related to Matters of National Environmental Significance (MNES) and establishing assurance responsibilities for compliance and enforcement of those standards at multiple scales.
I will focus on two decisions made by the Minister to date that unless modified in some way the nation will not adequately address the challenges highlighted by successive SOE reports and Samuels. Our environmental conditions will remain in an unsustainable state! Others have commented at length on these deficiencies. But given the legislation is now before Parliament it is critical to think further about what it will or will not achieve. My experience in working within state and federal administrations on environmental matters suggests that unless there are modifications those treasured values so fundamental to our national social, environmental, and economic well-being will be compromised.
I will assume that all the hard work by those involved in the development of MNES will result in an acceptable set of standards that will recognise the impact of climate change on threatened species and ecological communities. I will also assume that the Minister has ruled out an independent regulator contrary to the advice from Samuels, and that furthermore that bilateral agreements will be signed with the states. Both assumptions will require scrutiny both inside and outside of Parliament. However, I wish to focus on two associated components of proposed changes: one the assurance model and just how it works, and two, the Minister’s statement on funding to the states to exercise those national responsibilities and at what cost.
As pointed out by the Environmental Defenders Office and others, devolution of Commonwealth responsibilities under EPBC to the states may appear to be more efficient for certain types of developments, but effectiveness is doubtful unless there is a system of coordinated compliance and enforcement of national standards at multiple scales. As suggested by Samuels, there is a need for a “tough cop”. At a national level there are regulatory entities that examine compliance in banking, competition, tax but not for environment. Here an independent statutory body should be given sufficient powers to oversight adherence of MNES assuming the Australian Government is really serious about the protection of those matters! One is tempted to think they are seen more as obstacles to “jobs and growth” and not an essential component of our national well-being for which we have entered into international agreements to protect. There is precedent for federal law to include tough compliance provisions such as in Part 10 of the Water Act 2007, although some may ask how effective to date have been those provisions (see also Subdivision D on accrediting water resource plans prepared by Basin States). The EDO also has suggested consideration be given to the model of the Natural Resources Access Regulator as an independent statutory regulator. Unfortunately, there is not much information on just how the assurance process would work at this stage leaving open all sorts of speculation on how different state governments over time would seek to implement these “national” responsibilities; what is in it for them both politically and financially?
Minister Ley reported to the Sydney Morning Herald and The Age on 25 July that “we are not providing additional funding to the states”. She said that the states would have to demonstrate they can meet and apply national standards without additional funding presumably indefinitely. Moreover they will be accountable “through a strong assurance and compliance process”. I have been around long enough to know that this is a furphy! Yes there are examples of federal funding for state-based environmental endeavours such as those associated with Great Barrier Reef management and in the Murray-Darling Basin for which there is clearly a defined shared responsibility.
To ask states to take on this massive national task in a consistent way is a big ask without a “carrot”. Professor Paul Martin of UNE makes the point: “We have seen in Australia consistent under-resourcing of compliance and monitoring. The question now is whether the states have the capacity or backbone to properly oversee environmental management, and that depends on the integrity and resourcing of whichever agency has that responsibility”. There are models from overseas with which I am familiar such as under the US Coastal Zone Management Act 1972. Here a federal agency sets national guidelines and pays and monitors the states to implement those guidelines.
We may need to ask each Australian state and territory to amend their planning instruments in order to embed MNES within them (e.g. into State or Local strategic plans or even into Local Environmental Plans). This would make the MNES spatially explicit so that there would be certainty as to where threats to species and communities actually exist. This would mean normal development assessment processes could proceed; however, the cost of putting all this in place and setting up processes of assessment and judicial review could be considerable. The outcome may be fairer, transparent, and meet the efficiency of a one stop process, but still the Commonwealth must ensure the states act consistently and thus are able to reach development assessment decisions in the national interest. Here a funding model could be developed that meets this test.
Furthermore, the thorny issue of funding the management of sites that the Commonwealth has an international obligation to protect must also be considered. Here again we see an issue if say Ramsar or World Heritage site management is left to the whims of state budgets. Recent Victorian Auditor General review of Ramsar management has revealed serious deficiencies in this regard. If we are to seriously want our national government to address such issues then they need to have a “sustainable” funding mechanism to ensure that the financial and hence staffing burden of site management does not all fall on state agencies.
Going back to SOE 2001: political action was called for 20 years ago for the Commonwealth Government to provide leadership and help generate positive change to ensure a sustainable environmental future. Changes in 2020 to the EPBC Act should embrace this opportunity and demonstrate to our society that we do care for our country and matters of national environmental significance will be looked after by means beyond that of removing green tape. We cannot afford to waste another 20 years.
Words by Prof Bruce Thom. Please respect the author’s thoughts and reference appropriately: (c) ACS, 2020. For correspondence about this blog post please email firstname.lastname@example.org