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Environmental laws for the 21st Century

OUR ENVIRONMENT LAWS ARE BROKEN

Australia’s environment laws are broken. In 1999 the Howard Government delivered the Environment Protection and Biodiversity Protection Act that administers the Commonwealth Government’s responsibilities for protecting the environment of Australia.

At the time of its establishment, Julia Gillard described it as a “hastily cobbled together legislative nightmare”. Labor Environment Shadow Minister, Kelvin Thomson said, “Although it might be the largest environmental bill introduced into the Parliament, it is neither comprehensive nor fundamental reform.”

Environmental NGOs were no less scathing. The Australian Conservation Foundation, the Wilderness Society and Greenpeace said, “Any Senator who votes for this unacceptable legislation in its current form will be supporting the degradation of Australia’s environment”.

The laws focus too much on the issues of development approvals, rather than on pro-active management of environmental assets. They are too species focused rather than treating species as part of integrated eco-systems that operate holistically. They don’t even mention climate change or have any provision for addressing the changes this will bring. And they are slow, complex and costly – an issue that business has been highlighting since their inception.

And as predicted, the laws fail. In recent months there have a number of high profile examples.

MURRAY DARLING WATER THEFT

In July 2017 4 Corners revealed the widespread rorting of water allocations in the Murray Darling. Tax payers have stumped up $13 billion over the last decade to solve the problem of a dying river system but our nation’s governance has failed to deliver the environmental or equity outcomes that were promised. Compliance, lack of Federal oversight and lack of transparency of processes all contributed to this failure.

RUNAWAY LAND CLEARING

In early October the Queensland Government released figures that revealed 400,000 ha of bush has been cleared in one year in that state, including huge swathes within the Great Barrier Reef catchments. This pushed Australia into the Top 10 international deforestation nations, along with Borneo, the Amazon and the Congo. Land-clearing laws delivered by Queensland and NSW Labor Governments single handedly delivered Australia’s Kyoto Protocol responsibilities by slashing deforestation-related greenhouse gas emissions. Conservative governments in both states dismantled the laws and the clearing began again. The impact on wildlife is no less startling with the koala populations of Queensland headed for extinction. And yet the Federal Government has no role in halting this practise.

THE COMMONWEALTH’S ROLE IN ENVIRONMENTAL PROTECTION

When the Constitution was written over one hundred years ago – needless to say – the environment did not get a mention. The High Court however has over many years affirmed the Commonwealth’s right to high levels of intervention on issues of the environment. The most high-profile example of this was the upholding of Bob Hawke’s intervention over the Tasmanian state government to protect the Franklin River from a dam. This was based in the Commonwealth’s responsibilities under the World Heritage Treaty. Since then, the appetite for over-riding states has receded but the High Court has continued to affirm the Commonwealth’s right to high levels of engagement in issues of the environment.

At the last election Federal Labor committed to reviewing the Federal environment laws. Read those commitments here.  Since then a group of environmental law practitioners calling themselves APEEL (Australian Panel of Experts in Environmental Law) have written extensively on the failings of the current laws and what needs to change. This group has thought extensively from first principles about building an environment legal structure that would work. There summary document can be read here.

Essential to this work has been the insight that we need more than law reform, we need new institutions to administer them. Any laws are only as good as the capacity to deliver and enforce them.

CRC and LEAN JOINT PROJECT

Chifley Research Centre has been working with the Labor Environment Action Network (LEAN) on a project to review the work and advance the conversation and thinking within Labor. The project has identified a few key proposals which are principles for environmental reform:

  • The Commonwealth Government should be given the responsibility – and tools – for ensuring the health of Australia’s environment. At this point there is no-one responsible for the continuing environmental decline. The Commonwealth Government should be clearly given the task.
  • This task should be defined not only as project by project approvals for development but a pro-active role in building plans and approaches to look after our key assets – our rivers, our native vegetation, the plastic waste crisis, our marine environments and so on.
  • These plans should be developed and implemented in co-operation with the states and cascade appropriately through various levels of government. They would require bio-regional plans for local application.
  • Development approval processes must be simplified. Business needs to know what is expected from them and the duplication and delay of the Federal-State system solved not by devolving power but by clarity and simplicity. Development approvals would sit within the bigger framing plans and the processes clear and timely.
  • To make this all work, new institutions are essential. Many areas of public policy have strong independent agencies supporting good policy. Monetary policy has the Reserve Bank: an expert, independent entity, trusted by Australians. The environment needs a similar independent, empowered advocate and expert. There are two key functions that new institutions needs to deliver – big picture thinking toward proactive environmental management and proper compliance.

ENVIRONMENT IS LABOR BUSINESS

While the environment may not be a huge stand alone vote changer, strong environment action has been a key ingredient of all of Labor’s most successful modern governments. Gough Whitlam began the process of bringing environmental issues into the realm of government concern. Bob Hawke, our most successful Prime Minister, delivered ground breaking environmental change. This was not just the icons of the Franklin, the Daintree and Kakadu, but also in systemic environmental approaches such as the Resources Assessment Commission and the ESD process.

Steve Bracks, Bob Carr, Peter Beattie and Wran-Weatherill at the state level all had environment as a central plank of their offering. Voters see positive environmental reform as an essential aspect of Labor’s brand of building a civilised, decent society.

About Felicity Wade

Felicity Wade

Felicity Wade is the National Co-convenor of the Labor Environment Action Network (LEAN).

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