On 24 October, the Victorian Auditor-General reported on the ‘effectiveness of compliance activities’ of the two main departments charged with administering environmental legislation in Victoria, the Department of Sustainability and Environment and the Department of Primary Industries.
He found there was not much in the way of effectiveness.
It is worth quoting the summary conclusions at some length:
Neither DPI nor DSE has a comprehensive whole-of-organisation, risk-based approach to managing their compliance responsibilities. They have not clearly identified how compliance activities contribute to achieving legislative objectives and corporate outcomes, how they measure success, or how they monitor and report compliance performance… As a consequence, DPI and DSE cannot be sure that their compliance activities contribute to protecting natural resources, primary industries and the environment as the legislation intended.
In short, the Departments have little, or no knowledge as to whether the laws they are responsible for enforcing are being complied with. Or they are not ensuring that the law is being complied with. Or both.
Given these departments have responsibilities and powers under 61 Acts of Parliament – covering for example fisheries, invasive species, biodiversity, mining, agriculture, forestry, public lands, coasts and catchments – it is no litany of minor foibles. Failure to monitor adherence to the law in these areas can lead to irreparable, if incremental and cumulative, loss and/or environmental damage.
DSE comes in for particular criticism as having ‘substantial’ deficiencies, requiring ‘concerted effort’ to fix. Yet, to be fair, the report found that neither Department has properly functioning policies and frameworks to guide its environmental policing activities.
None of this is good news and it doesn’t make us feel better to say that the EDO has been reviewing and reporting on exactly these issues for some time. For instance, in our review of laws protecting native vegetation, the EDO was very critical of the lack of monitoring, compliance and enforcement activity, especially following the issuing of permits to clear native vegetation. Also, with regard to Victoria’s main threatened species laws (the Flora and Fauna Guarantee Act), the EDO reported on the stark lack of compliance, monitoring and enforcement activity by the regulator (DSE).
Nor should these failings be placed necessarily at the feet of departmental staff, of whom there are too few and who face (in the Auditor-General’s words) ‘poorly coordinated training, inconsistent authorisation processes, limited review of work practices and inadequate complaints management.’ Cuts to public service numbers will likely only compound the situation.
Government and departmental response to this report will be important to turning around poor implementation of various environmental laws and their subsequent lack of effect.
It may also require re-evaluation in important respects of the role of the departments, or internal actors within the departments. In particular, there will need to be greater emphasis and clarity of their functions as regulators, not just administrators.
In support of that role, the Auditor-General has highlighted a range of areas in which the information upon which the bureaucrats – and the public – depend is inadequate or non-existent. This need for transparency is a priority. For example, the departments should be publishing (and in some cases collecting and collating) information on permits and licenses issued, complaints, their policies, objectives and plans, monitoring and compliance activity, advocacy and educational work. Again, publicly available data on compliance and enforcement activities is something the EDO has been calling for repeatedly, over several years.
We are assured by the relevant Departmental Secretaries, in their responses to the Report, that they are onto the issue. We shall see. The present record does not fill us with confidence.