The Australian Parliament has another opportunity to reform laws that will address the huge array of issues confronting the degradation of Australia’s environment.

Since 1996, successive State of Environment reports have highlighted the loss of species and damage to ecological communities. I was the chair of the Committee that produced the second SOE report in 2001. The Samuel review in 2020 made very clear that actions taken to date by the national government under existing federal law were not providing relief from degrading forces. Something had to be done. We now have before us a new package of legislation that seeks to improve environmental conditions while facilitating continued growth of the economy.

Fundamental to environmental planning and management in Australia is recognition of the distribution of the roles and responsibilities of the three levels of government. There is a saying that the federal government has the money, the states have the power and local government has the responsibility. Debates in framing the Australian Constitution over powers with respect to natural resources were fierce. In 1898, the NSW delegate to the convention was adamant, “we must be allowed to drain the Murray dry”. This led to s100 giving powers of water management to the states, but navigation was a federal responsibility (s98) essentially allowing water to flow into South Australia. What a compromise; it continues to haunt us. However, acceptance by the Australian Government of international treaties has provided it with powers of intervention (e.g. Water Act 2007). Such powers together with use of various funding measures have enabled different federal governments to make decisions impacting for better or worse on environmental conditions. Yet so many decisions are made at state levels (and by disparate local councils) using land use planning and management powers. The sad outcome is that some of the environmental degradation we witness in this country occurs with changes of state government as seen in the history of oscillating land clearing legislation in NSW and Queensland.

This leads to questions as to just how far federal law can really address the loss of threatened species and ecological communities, continued degradation of soils and declining water quality. In a federated nation, we should expect a set of environmental laws across levels of government that speak to each other enabling consistent implementation of policies and actions. In a nation confronted with problems that transcend state boundaries, there should be legal structures in place that ensure such consistency in delivery of outcomes with levels of certainty that are far clearer than we have ever experienced as a nation – the new climate era demands such “reform”.

At present, federal law recognises Matters of National Environmental Significance (MNES). Some of these are tied to international agreements (e.g. Ramsar wetlands). Various reviews show that there are a myriad smaller impacts which accumulate causing significant damage to MNES. This problem opens up the need for any development to recognise that there might be an adverse impact on an MNES area distant from the site of the development. These “cumulative impacts” are well recognised within waterway/catchment systems. It is not unusual for cumulative impacts to be recognised in law. Now is the time at a federal level to consider its application. This becomes even more important when activities of state governments outside the boundaries of an MNES are apparently harming the ecological communities and species within it. One place where such effects appear to be occurring are modifications to Ramsar wetlands in the Gippsland Lakes. This may be linked to water quality changes associated with increased dredging at Lakes Entrance and locking up more freshwater flows from catchments. Therefore if we are to achieve objectives of federal legislation, there must be mechanisms to address cumulative impacts that threaten MNES not just impacts that occur at the location of the development.

Such considerations also open discussion as to how effective proposed new laws will be without legislated national environmental standards applicable for federal decision-making and also for state governments. At state and local levels decisions, there must be a clear understanding of how their actions interact with federal standards thus preventing “death by a thousand cuts”. Without some firm mechanism of accountability, such as through the new Environmental Protection Agency, vested interests within state governments may negate the intended outcomes of federal “reforms”. Devolution of federal powers to states if it is to occur should be carefully monitored.

Further interaction between levels of government is essential if there are to be practical bioregional plans designed to deliver positive outcomes for nature. In theory, these plans become foundational for efficient delivery of land use decisions. They must provide strategic advice that facilitates quicker decision making with clear definition of high conservation areas. Defining such areas will require extensive consultation, including with regional communities and indigenous peoples. It may appear complex especially as climate change factors also are at play. But we now have the opportunity to recognise at regional scales not just where core habitats must be conserved, but in addition where we must start to both repair damaged lands and waterways and prepare for future environmental changes induced by climate changes.

Over coming weeks we will hear a lot about how important the new federal environmental reforms are to the economy in streamlining approvals for development in the national interest. We will hear more and more about how we have to compromise to get something better than what currently exists. Yet we have before us opportunities to ensure our threatened species and ecosystems are better protected, and at the same time to take the necessary big steps to help restore degraded environments and do what we can to prepare for an uncertain future.

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