Switched-on Report, Switched-off Client
The Samuel Review of National Environmental Law
Once in each decade, Australia's national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is subject to comprehensive independent review.
Although commissioned by government, these reviews are required by law, which can leave the government, and certainly the current government, as something of a reluctant ‘client’.
As the EPBC Act is 20 years old, there have been two such reviews. The first review, by former Defence Department head Dr Allan Hawke, was received with enthusiasm by environment Minister Peter Garrett in 2009, but later drowned in the turbulent waters of the Rudd/gillard/rudd years and sank almost without trace.
The second review, by Professor Graeme Samuel, a lawyer, business person and former competition regulator, was handed to the Morrison government in October 2020 and earlier this year yielded an announcement which appears to adopt several of Samuel's key reforms.
All is not what it seems however. The proposed reforms to this major piece of legislation, which had already been brought to its regulatory knees by swingeing budget cuts, are in my view but a fig leaf for the Government's primary agenda, which is to get the federal government out of the business of environmental impact assessment and development decisions (EIA for short), after some 47 years of operating in this space.
The EPBC Act and its Antecedents
It was the Whitlam government that got the Commonwealth into EIA, passing Australia's first EIA law in 1974. Two decades on, this and other national environmental laws were getting long in the tooth and so Robert Hill, who would in my view go on to become Australia's finest environment minister, developed an election platform for the incoming Howard government in 1996 that included a commitment to conduct a comprehensive review. This platform, especially its centrepiece, a Natural Heritage Trust (NHT) funded by the partial sale of national communications carrier Telstra, gave the Howard government something of a green tinge in its early years.
Hill soon completed the Review of Commonwealth Environmental Law and negotiated a carve-up of responsibilities between the federal and state governments. Agreed federal responsibilities were described as 'matters of national environmental significance' (MNES) and a subset of these was put forward to become a foundation for the proposed EPBC Act.
The green tinge associated with the NHT did not extend to environmental regulation, where the Howard government had a distinctly dry and deregulatory orientation. Despite this, Hill managed to sell the thick and distinctly regulatory EPBC bill to Cabinet on efficiency grounds, because it provided for the devolution of EIA decisions to the states under so-called bilateral agreements, 'bilaterals' for short.
The sale of such an environmentally progressive Bill to such a dry Cabinet was something of a minor political miracle, or, depending on your point of view, a significant aberration. In either case these circumstances explain why, for Coalition governments, the EPBC Act has been such an unloved child.
The miracle was not quite complete however. Cabinet told Hill there would be no new money for this big new Act; this meant he would have to fund it in part by cannibalising other programs. This in turn sowed the seeds of future problems, as many of the shortcomings of the EPBC Act can be traced back to a persistent under-funding.
MANY OF THE SHORTCOMINGS OF THE EPBC ACT CAN BE TRACED BACK TO A PERSISTENT UNDER-FUNDING
The proposed reforms to this major piece of legislation, which had already been brought to its regulatory knees by swingeing budget cuts, are in my view but a fig leaf for the Government's primary agenda