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Independence, governance collide in NSW EPA review

Barry Buffier
Barry Buffier

The chief environmental regulator in New South Wales has too much power for a bureaucrat and the role must be split, a parliamentary committee has found following an eight-month inquiry. It also highlighted the importance for regulators to be timely and transparent in communication and engagement.

Barry Buffier is both chair and CEO of the Environment Protection Authority, dual hats the committee found “stands in contrast” to other heads of agencies in NSW, in which the CEO “participates as a member of the oversight board, but does not hold the position of chair”.

Executive performance management agreements should be made with a governance board — tricky when headed by the same person — instead of the environment minister as law currently stipulates, the inquiry recommended.

The inquiry found a few areas where the EPA under Buffier was “found wanting” since the authority was re-established in 2012 to give its role and independence greater visibility. The committee examined land and groundwater contamination issues at Botany, Hillsdale and Pilliga, coal dust pollution in the Hunter, the withdrawn prosecution of Du Pont, cruise passenger ships at White Bay, and the regulation of forestry practices in Royal Camp State Forest.

While community concerns were raised, particularly around inadequate communication of the EPA’s thinking and actions that some interpreted as a “cover-up”, the inquiry found no evidence of impropriety. Instead, it found the EPA has worked to improve its release of information and developed a relationship with industry that strikes the right balance between oversight and effective collaboration:

“The committee believes that the EPA has struck this balance appropriately and professionally.”

Where EPA failed to live up to the community expectations of a regulator, such as in its forestry division, the committee recommended the EPA be allocated significant additional funds to hire and train additional personnel. Raising the penalty for threatened species breaches from $300 to $15,000 will also equip the EPA to take action against breaches without resorting to prosecutor action, “which can be costly and subject to lengthy delays and unpredictable outcomes”.

The EPA responded to the report with a statement to The Mandarin:

“The EPA is carefully considering all the findings from the Parliamentary Inquiry and would like to thank the Parliamentary Committee for the opportunity it presented to increase public awareness and understanding about the important role the EPA plays in protecting communities and the environment in NSW.”

If Buffier is mostly performing well, as the inquiry seemed to find, it may be because he’s qualified and experienced in both his roles, having held senior executive and board positions in both the public and private sector, including director-general of the Department of Primary Industries and the Department of State and Regional Development. He is also a Churchill Fellow and a fellow of the Australian Institute of Company Directors.

There are no specific guidelines against a dual-hat arrangement at agencies in NSW. However, the Commonwealth recently updated its GBE governance guidelines, published by the Department of Finance, to state the chair of a government-owned board should not be an executive in the body they are overseeing, unless otherwise agreed by the portfolio or shareholder minister.

No similar guidelines have been produced specifically for regulators.

You tell us: do regulators need a governance board?

Author Bio

Harley Dennett

Harley Dennett is editor at The Mandarin based in Canberra. He's held communications roles in the New South Wales public sector and Defence, and been a staff reporter for newspapers in Sydney and Washington DC.