Why we need an overhaul of our federal environment laws

Environment debate at National Press Club debate has prompted a call from leading environment groups for an overhaul of our outdated environment protection laws.  

The National Press Club debate between Federal Environment Minister Greg Hunt and his shadow counterpart Greg Butler has prompted a call from leading environment groups for an overhaul of our outdated environment protection laws.  

Environmental Justice Australia are pleased to have played a leading role in the Places You Love alliance, an alliance of conservation groups formed to re-imagine our failing environment laws. 

Here’s a quick outline of our thinking as to why substantial reform of our federal environment laws is so urgently needed.

How the EPBC Act has failed

The Environment Protection and Biodiversity Conservation (EPBC) Act designed to protect our threatened species has failed.

Without significant reform, it will continue to fail.

Understanding what is going wrong is crucial if we are going to create reform that fixes the problems.

There is a failure at a deep architectural level in our system of environmental governance that can only be fixed if the our national government assumes the responsibility for strong national leadership.

The many failures of the EPBC Act  can be categorised into three levels:

  • Failures in implementation.   Much biodiversity conservation legislation simply fails to deliver what it promises, leading to a lack of monitoring and compliance activities, delays in listing, failures to develop recovery plans, lack of using available tools like critical habitat determinations, poorly managed EIA processes, and regulatory cultures that cannot contemplate refusal of development applications.
  • Gaps and limitations in current legislation and policy.  Reviews of the legislation repeatedly find that things are missing or not working in the biodiversity conservation toolkit. We need best practice offsets, better prioritisation regimes, improved approaches to strategic assessments.   We also need a redesign of biodiversity laws to absorb the reality and the uncertainty of climate change, with new approaches to create a framework for certainty, but also adaptive management, and the institutional foundations for managing protection and restoration in a climate change context.
  • Governance failure. Considering the EPBC and state based biodiversity protection laws as a system is where you find the deepest failure, due to the allocation of responsibilities to different levels of government in our federal system.

It’s important to understand the consequence of failure at this systemic level.While reform at the level of implementation failures and fixing the biodiversity toolkit is critical, these reforms alone will be bound to fail unless we fix the underlying governance problem – the lack of an effective national system.

What’s wrong with the EPBC Act?

17 years after the introduction of the EPBC 1999, the main failings are:

  • Fragmentation.  We have a fragmented and decentralised model of governance.   No one is in charge.
  • Variable standards.  The standard of environmental protection varies considerably from state to state.  Some states, such as NSW, have a relatively well developed system of nature protection laws.  In other states and territories laws are rudimentary is non-existent – SA, WA, NT for example.Things are not getting fixed, they’re getting worse.  One of the symptoms of failure here is that fixes to the first two levels of failure that I outlined above – implementation and fixing the toolkit – simply do not occur in our current system.   Across the country, the story of our nature protection laws over the last 20 years has been one of stagnation, stalled and failed reforms, and now  active retreat from previous legislative commitments.  
  • Confusion about the allocation of responsibilities. The EPBC Act is premised on the Commonwealth assuming responsibility for “matters of national environmental significance” while the states continue with their responsibility for things within their borders – “concurrent” operation of state and commonwealth laws.   In practice the result is actually a system of partial responsibility by the Commonwealth matched by an ever decreasing assumption of responsibility by the states.

How the EPBC Act tries to fix this but actually makes things worse: bilateral agreements

This unhappy state of affairs is then exacerbated by the use of the only mechanism available under the EPBC Act to try and lift the game of all jurisdictions – bilateral agreements between the states and the Commonwealth.  In principle, bilateral agreements are a tool that could be used by the Commonwealth to elevate all state and territory systems to a consistently high standard and then retreat to the sidelines.

In practice, the “one stop shop” and the deregulatory anti-green tape agenda of which it is a part have simply sought to endorse various roll ups of out dated laws, policies and practices with the result that we are really no further advanced in environmental protection terms than we were prior to the EPBC being introduced.

A better way?

A Commonwealth government committed to leading using the powers available to it would be the starting point for nationally consistent approaches to environmental impact assessment, recovery planning, strategic assessment and regional planning, standard setting and much more.

This is all achievable if there is a commitment to national leadership by the Commonwealth government.

It’s important to emphasise that this would not be a “takeover” by the Commonwealth government.  States, as the primary land managers amongst many other things, will continue to have important responsibilities for implementation. 

The point is to avoid the current situation that treats environmental protection in our federal system as a zero sum game where any involvement across two levels of government is bad for duplication, instead seeking an allocation of functions and responsibilities that plays to the best features of each level of government.

The exercise would not be straightforward – any improvement to environmental protection is inevitably politically contentious and the long history of tensions between States and the Commonwealth and environmental matters cannot be ignored. 

There are however many models from other areas of public policy where the general trend has been toward national consistency, achieved through a large range of legislative and cooperative mechanisms – defamation laws, occupational health and safety, consumer protection are all examples where the trend has been toward national consistency and harmonisation.  

Environmental protection, on the other hand, is stuck in the groove of an early 1990s compromise that means things will only get worse unless we reform our system of federal environmental governance.

It’s time for the Australian government to finally cast off its reluctance and assume the leadership required.

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