To the best standards
On 29 October 2019, the Minister for the Environment, the Hon Sussan Ley MP, commissioned the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (the Act).
A year later, after receiving 30 142 submissions from people and organisations and directly consulting with more than 100 stakeholders, Professor Graeme Samuel handed down his report. It was comprehensive.
His key message was that:
Australia’s natural environment and iconic places are in an overall state of decline and are under increasing threat. The environment is not sufficiently resilient to withstand current, emerging or future threats, including climate change. The environmental trajectory is currently unsustainable.
To shy away from the fundamental reforms recommended by this Review is to accept the continued decline of our iconic places and the extinction of our most threatened plants, animals and ecosystems. This is unacceptable. A firm commitment to change from all stakeholders is needed to enable future generations to enjoy and benefit from Australia’s unique environment and heritage.
For the Government to shy away from full implementation of Samuel’s recommendations is to betray the environment and Australians at large.
Strong environmental standards
Central to the reforms necessary to properly protect the environment are the strong national standards that were proposed by Professor Samuel. These standards strike the right balance between environmental protection and economic development and have proved acceptable to both environmental and business groups.
Despite finding the ‘sweet spot’, the Government has proposed alternative standards that are much weaker than Professor Samuel’s. In effect they maintain the status quo—which Professor Samuel’s has clearly stated has the nation on an unsustainable environmental trajectory.
The Government’s weakness is the result of acquiescence by the Prime Minister to party room politics.
The standards proposed by the Government cannot be supported.
Law, not regulation
The bill seeks to allow the minister, by legislative instrument, to make standards for the purpose of the Act.
As stated in its 2019 report covering Parliamentary scrutiny of delegated legislation, the Senate Standing Committee for the Scrutiny of Delegated Legislation found that half of the laws of the Commonwealth had been made by delegated legislation.
Section 1 of the Australian Constitution makes it clear that ‘The legislative power of the Commonwealth shall be vested in a Federal Parliament’. That is, elected members and senators shall make laws in full sight of the people to whom they owe a duty and to whom they are directly responsible.
It is not for faceless bureaucrats in the executive who are unknown to the people to make laws behind the scenes. Their doing so represents a substantial violation of the principle of separation of powers as set out in the Constitution.
It is also noteworthy that the Senate Scrutiny of Bills Committee also raised a direct concern about the standards in this bill being established by legislative instrument.
The National Environmental Standards should be a schedule to the Act.
The bill proposes a public interest exemption to certain decisions or things under the Act, exercised by the minister as a disallowable legislative instrument. Used inappropriately, this feature of the bill would provide a back door to avoid application of the standards.
Furthermore, the bill does not specify a list of what the minister could and should consider when making such an exemption. Such a list should be specified along with relevant thresholds.
In practice, what is being disallowed in this instance would not be a regulation, per se, rather a decision on the merits. Merit decisions are more appropriately dealt within a judicial environment.
Therefore, any public interest exemption decision made by the minister should be a decision that is subject to merits review. This would establish an appropriate level of supervisory ‘tension’ when such decisions are made by the minister.
Environmental Assurance Commissioner
We have seen, through the Murray-Darling Basin Plan, what happens when an environmental measure is left without a properly empowered and independent watchdog.
So, whilst this bill proposes an Environmental Assurance Commissioner, the commissioner’s functional scope is too narrow and the position is not sufficiently empowered to properly conduct even the narrow roles assigned.
The commissioner’s remit should be expanded from the proposed monitoring and auditing roles to include compliance and enforcement, with the necessary powers to properly enforce the intent of the Act.
Aware that it has no bite, the ‘watchdog’ is unlikely to even bark when confronted with an intrusion on the intent of the Act.
Noting the ultimate intent to devolve responsibility for decision making to a state and territory, a reasonable trade-off is for the states and territories to transfer the authority to order the production of documents and require the giving of evidence to the commissioner. They should also consent to the commissioner being able to compel the making of changes in response to an audit or compliance outcome.
For the watchdog to be effective it must have a sharp set of teeth.
Order of Events
The order of events is wrong, it would be inappropriate to implement any devolution prior to the national environmental standards being established. Consistent with the dissenting report from Senator Lambie, Senator Griff and myself to the Streamlining Environmental Approvals bill, that bill should not be debated until this bill has passed through the Senate and all of the concerns in that dissenting report have been addressed.
The bill should not be passed with the standards as proposed by the Government.
The bill should not be passed until the National Environmental Standards are brought into the primary legislation.
The reasons and thresholds for making an exemption, in the national interest, must be set out in the primary legislation. These decisions must explicitly be subject to merits review.
The Environmental Assurance Commissioner’s role must be expanded to include compliance and enforcement and the commissioner must be given teeth.
The Streamlining Environmental Approvals bill should not be debated until this bill has passed through the Senate.
Senator Rex Patrick