Australasian Science: Australia's authority on science since 1938

Reviewing Our National Environmental Law As If It Mattered

By Peter Burnett

Australia’s overarching national environmental law is due for review. To make the most of this opportunity, the reviewers need to address five critical questions.

Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), is 20 years old. Later this year it gets its second 10-year review. In a time of climate change and mass extinction, is the EPBC Act still fit for purpose? Does it need a little tinkering or a major overhaul?

I was responsible for the administration of the EPBC Act during the first review in 2009. To my mind, this second review is a valuable opportunity for reform.

The thing we need to resist is simply looking inside the Act to make it work better. The way forward lies as much on the outside of the Act, and I’d like to pose five big “outside” questions.

But before I discuss these, what happened to the first review? Led by Allan Hawke, a former federal department head, the Hawke Review was comprehensive and well packaged in its recommendations. Hawke was assisted by an expert panel, and engaged extensively with stakeholders. He packaged his recommendations so they had something for everyone: new environmental protection for environmentalists; streamlining of regulation for business; stronger institutions for administrators; and a fresh name for maximum political effect. Unfortunately, these outcomes never materialised.

It was 2010 by the time government was able to act on the review, and there was significant political turmoil following a leadership coup against Prime Minister Kevin Rudd, which was precipitated in part by a proposed mining tax. The coup culminated in the watering down of the tax, an election, a change of environment minister and minority government.

A detailed government response to the Hawke Review was released 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 focused its attention on a “one-stop shop” initiative to reduce regulatory duplication by using an existing mechanism in the EPBC Act.

Progress on the EPBC reforms slowed, and the Gillard government deferred them to the next Parliament. But the next Parliament brought a change of government, and the incoming Abbott government revived the one-stop shop.

Except for an environmental offsets policy, the response to the Hawke Review was never implemented. Good policy reform foundered on the rocks of difficult politics.

So here are my questions for the forthcoming review.

  1. What are we trying to achieve? 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.
  2. How do we allocate roles and 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. They need to be renegotiated.
  3. How should the two levels of government cooperate? Again, the 1990s agreements addressed this but implementation has been desultory. Governments should have tried harder. With so much overlap, cooperation is vital to the future.
  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 (e.g. not to approve development in listed critical habitat).
  5. How do we ensure that the Act is funded so that it can meet its goals? The EPBC Act has never been properly funded, going right back to the time when its principal architect, Environment Minister Robert Hill, was unable to secure additional funding. This is one reason why several major mechanisms under the existing Act, including bioregional planning and grants for information-gathering, have been little used.

Unless the government addresses the big “outside” questions, the second statutory review of the EPBC Act can only deliver incremental change. That would be a wasted opportunity.

Dr Peter Burnett is an Honorary Associate Professor at the ANU College of Law, the Australian National University.