‘There is a limit to what laws can achieve, but they are an essential part of any robust system of environmental governance. Environmental laws should effectively enable the protection, conservation, management and, where needed, restoration of our national heritage. The effectiveness of our environmental laws must be founded on the values of integrity, transparency and accountability, in both their formulation and enforcement. These laws must also be kept up to date, so that they continue to reflect our ever-changing environmental, social and political conditions. Our current laws fall short of these standards’.
In its recently published Blueprint for the next generation of Australian environmental law, a panel of Australia’s leading environmental lawyers point out that our legal arrangements have grown piecemeal; an ever increasing number of statutes, regulations and policies introduced at State and Commonwealth level over fifty years with ‘little or no attempt at comprehensiveness or the application of foundational principles’.
The Executive Summary-Overview the national State of the Environment Report 2016 precisely refers to the “lack of a nationally integrated and comprehensive policy and legislative framework that deals with the complex and systemic nature of the issues facing our environment, and provides clear authority for actions to protect and maintain Australia’s unique natural capital.”
The abstract complexities and on occasion inconsistencies of our laws hinder our ability to deal with the physical complexities of the environment. Laws are mostly designed to apply to a particular location or within a particular sector: not least in the assessment of development proposals. They do not effectively address what are now better understood to be ‘the cumulative effects of multiple pressures on the environment’. Ecosystems, river catchments or air quality are rarely in decline because of a single event but as the result of many actions over time.
Moreover, as the expert panel points out, ‘laws that appear sound are frequently not effectively implemented. Many legal requirements are not enforced because of their ambiguity, a lack of necessary resources or because they are overridden by economic, political or other considerations’. In recent times the concept of ‘cooperative federalism,’ applied to environmental law, has very often meant in practice that the States have moved to weaken environmental laws while the Commonwealth has been either unwilling or unable to accept any authority in the circumstance.
By way of example, present native vegetation clearing laws in Queensland and New South Wales deliberately weaken earlier legislated protections and place us again among the world’s worst deforesters. These laws flatly defy long established, nationally negotiated government policy agreements to end tree clearing. In Queensland large-scale clearance has also affected the catchments of the Great Barrier Reef. The Reef is defined as a ‘matter of national environmental significance’ (MNES) under the Environment Protection and Biodiversity Conservation (EPSB) Act; and in consequence the Commonwealth has jurisdiction and responsibility to act against threats of damaging siltation. However, it remains, without serious explanation, inactive in the field.
The unlawful water harvesting and the inadequate enforcement of compliance laws by the New South Wales Government in the Darling-Barwon River revealed by 4 Corners last year grossly undermined the spirit and purpose of the extremely expensive, federally funded, nationally negotiated Murray Darling Basin Plan. Yet the Commonwealth had no direct knowledge of the breaches because the Basin Agreement constrains the ability of federal authorities to share in or monitor compliance.
The expert legal panel argues that the balance of influence must change. The Commonwealth should assume the responsibility for “national strategic leadership on the environment” as it has done historically in number of critical economic areas — taxation, corporate regulation and more recently when the Commonwealth and the States agreed to administer a single comprehensive Australian Consumer Law which replaced a plethora of trade practices and consumer laws previously existing at both levels of government.
They argue that the next generation of laws should be built upon fundamental ideas about the protection and restoration of our environment that have been settled in a new national debate. Moreover, well-established and basic concepts such as “environmentally sustainable development” (ESD) or the famous “precautionary principle” should be given more than token force in the law. At present, ESD is included prominently in the objects clause of the EPBC legislation. So situated however, it can be treated legally as a merely “relevant consideration”, which means that it can be all but ignored in practice. The Expert Panel proposes that the application of such principles should instead be spelt out specifically in the environmental rules and regulations to be applied by decision makers as a first priority. What a difference that could make to environmental administration!
Technical papers and detailed recommendations concerning critical elements of environmental policy and legal reform — including the democratic engagement of the community, energy regulation, the role of the private sector and the inclusion of business — may be seen on the website http://apeel.org.au. The headline recommendation however, is for the establishment, in the national interest, of several major new Commonwealth statutory authorities. To the degree that they were able to exercise a capacity to administer the environmental law with independence, transparency and accountability, their establishment would be transformative.
An independent Commonwealth Environment Protection Authority – it is entirely surprising that one does not exist already – would administer the system of environmental assessment and individual development application approval presently conducted, so often under intense political pressure, by the Department of Environment. It would also consolidate existing Commonwealth regulatory functions and assume responsibility for monitoring, compliance and enforcement of all national environmental laws
A new Commonwealth Environment Commission would move environment protection to the centre of national concern and the Commonwealth to a new role of leadership. Having a ‘similar status to the Reserve Bank Board,’ it would provide the substance of strategic national leadership where that does not now exist.
It would develop national strategies, programs and standards in matters declared to be of Commonwealth interest, including a revised and expanded MNES list. States would not give up their traditional roles in natural resource management but the implementation of national policies at State and Territory level would be encouraged, as occurs now in the United States, by the provision of financial incentives.
The Commission would fill a yawning gap in environmental management by coordinating what is frequently at present incomplete and overlapping natural resource planning across the nation.
Used in limited circumstances in the past, broad scale bioregional planning would be mandatory in next generation of environment law. Engaging all levels of government, it can be used to plan the national reserve system and better manage habitat protection. However it also has the manifest advantage that it can lower conflict over natural resource use by providing a new level of certainty and predictability for industry: identifying areas available for resource extraction and development.
If we are to halt the decline of our natural environment, sustain the fertility of our productive lands and meet our obligations to future generations, these are some of the things that must be done.
Bob Debus AM was a member of the NSW Parliament and Attorney General, Minister for the Arts and Minister for the Environment in the Carr Government. He was also a member of the House of Representatives and Minister for Home Affairs in the Rudd Government.