Australia must move on from its outdated environment laws

By Suzanne Milthorpe

May 9, 2019

Wild koala in climbing up a tree in Adelaide Hills, South Australia. Getty Images

It is interesting to ponder how officials in the Department of the Environment and Energy are grappling with the opposition’s promise to “fundamentally change our approach to addressing the environmental crisis” as they finalise the incoming-government brief for a potential Labor government, commonly known as the Red Book.

Central to this is Labor’s commitment to bring in a new Environment Act and a national Environment Protection Authority (EPA) in their first term in government.

Should Labor win, they will have little time to waste. Given the scope of the reforms proposed, the Department will have its work cut out advising a new Labor minister on how to deliver a fit-for-purpose, 21st Century governance framework.

Labor’s announcement provided the breadth of what these reforms will tackle (Australia’s extinction crisis, failures in managing the Murray-Darling and often contradictory state and federal laws) and the resources to start the reforms ($50 million for law reform and $100 million for species protection).

The announcement was a call to action

Bill Shorten also used the announcement to put the political establishment on notice — no more “business as usual” on the environment. With good reason: Australia ranks second in the world for biodiversity loss and is the only developed country with a deforestation front.

For a rich nation with strong scientific and policy expertise to be a global leader in extinction and deforestation is not just an embarrassment, it’s a fundamental failure of leadership. It is in this context that Labor has committed to an Act which “obligates the Australian Government to both protect and restore Australia’s environment”.

We must deal with 21st Century reality

To do so, Australia must move on from its outdated environment laws that set out a process whereby damaging projects are assessed and approved, to one in which real, substantive protections are enshrined in legislation.

The Department will also need to tackle thorny issues such as the Regional Forest Agreements, which currently exempt native forest logging from environmental law but which are responsible for the fate of 48 nationally-listed forest fauna living in areas subject to state-run logging operations.

Thankfully, significant substantive work already exists to guide this legislative reform, including the 2009 Hawke Review, several Productivity Commission and Australian National Audit Office (ANAO) reports and the 2017 Australian Panel of Expert Environmental Lawyers’ “Blueprint for the Next Generation of Environmental Law”.

Given the first-term timeframes around this commitment, the Red Book will likely advise Labor to build on this strong foundation rather than start from scratch. Lessons can also be learnt from comparable jurisdictions like the United States, where the Endangered Species Act has prevented the extinction of 227 species in the last 45 years and led to the full recovery of 39 species under its protection.

The second fundamental change — Bill Shorten described this new institution as a “new cop on the beat” in the form of a national EPA — shows Labor may have learnt from the cautionary tale of the current government. After six years of attempts to devolve federal responsibility and under-resourcing compliance functions, the Coalition has spent a year dogged by high profile controversies around water sales in the Murray-Darling, approvals for the Adani and Yeelirrie mines and ongoing compliance issues in regulating deforestation in Queensland.

It is a measure of the importance placed on nature that Australia has never had an environmental regulator with the authority of the ACCC or ASIC. A 2014 ANAO report into the Environment Department’s regulatory performance highlighted major reforms needed to improve regulatory performance: while many have been implemented, the Department still lags behind in key areas such as public reporting on the effectiveness of compliance actions compared to the detailed reporting provided by ASIC and the ACCC.

Given recent scandals, the complexity of environmental assessments and the fact that millions (probably billions) of dollars of projects are regulated under environmental regulation, the task of building a credible, well-respected EPA, properly resourced to undertake best practice regulation, seems an urgent one.

Taken together, these reforms will represent a significant shift in perspective and scope for the Environment Department. An incoming Labor minister would inherit a very different Department to the last time Labor was in power in 2013, one which has suffered disproportionately from ‘efficiency dividends’ and has had its budget slashed by 40%, hampering its capability to deal with the immediate work of controlling environmental threats.

The challenges are real

To deliver the change required to protect Australia’s environment and address the extinction crisis will require very substantial funding over time, beyond what has been committed in Labor’s announcement.

Labor will also have to deal with the lack of data infrastructure to underpin a new modern Act, such as the lack of national and reliable monitoring regimes for key environmental indicators such as vegetation cover and critical habitat for threatened species.

Given that the end point of these reforms must be a robust EPA and a Department that can deliver national policy leadership, Labor should buck current trends for outsourcing major reforms to consultants and begin the process of rebuilding internal expertise in this area. It may also be wise to choose a new EPA head with significant regulatory experience from one of the other regulators so learnings can be transferred.

Australia faces a stark choice: remain a global leader in extinction or seize the opportunity to be a global leader in environmental management. The success of these reforms will be judged by whether they result in a credible, fit-for-purpose and 21st Century governance framework that brings about real action to end the threats facing our species and effectively “protect and restore our environment”.

Suzanne Milthorpe is the National Nature Campaign Manager for The Wilderness Society. She is a conservationist who specialises in national environmental policy and governance, and has previously held policy roles in the Australian Public Service. @SueMilthorpe

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