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Revel Pointon and Andrew Kwan, Environmental Defenders Office, QLD
The reality of Australia’s faunal extinction crisis, as it has been labelled by a recent Senate committee inquiry, is shocking. Of course, this crisis is not limited just to Australian fauna. The Commonwealth’s most recent State of the Environment Report in 2016 grimly concluded that the outlook for Australian biodiversity is “generally poor” and that the number of threatened species and ecological communities had increased since 2011. How did our nation get to this position of allowing our faunal populations to dramatically drop to a crisis point? Are the laws to blame? We think yes, but the blame cannot solely be placed on our laws.
The Environment Protection and Biodiversity Conservation Act 1999 (Cth) is Australia’s key environmental law, intended to implement our commitments made under various international agreements to protect biological diversity. This year the Act is due for its second 10 year review. The initial 2009 review provided numerous recommended improvements, but many were not implemented, including the recommendation for an entirely new Act. Since then, there have also been further reviews of the Act’s effectiveness, the most recent being by a Senate Committee Inquiry into Australia’s faunal extinction crisis.
Synthesising the findings and recommendations of all of these reports, we suggest that to stop and reverse our faunal extinction crisis we must improve accountability and transparency in our governance. A key facet of laws is that they provide transparent processes and criteria by which the regulation of our impacts on environmental values can be made accountable to the public. Accountability is made possible only via clear and certain laws, that are not subject to the discretion of the decision maker and that are designed in a way that will lead to the purpose of laws being achieved. Let’s not forget that it’s only the projects with significant impacts that even cross the threshold for needing federal assessment.
Therefore, if three improvements to our federal environmental laws were allowed to assist in halting the species crisis, ours suggestions would be:
1. Requirement for good quality, transparent data, by which current species and habitat health can be monitored, and through which we can assess how well our management plans and laws are working. This could be coupled with triggers to amend laws or management programs to provide needed changes to address declining populations.
2. Clear, certain criteria behind decisions and removing broad discretion, including, for example, a requirement that management plans are completed for all species and required to be followed in decision making.
3. Meaningful public input and critique on decisions, for example, the Productivity Commission and the NSW Independent Commission Against Corruption have confirmed that empowering third parties, particularly through much needed independent court merits review, is essential to provide a check and balance on decision makers and better quality decision making that is more likely to be free of corruption.
However, it is not just the law that needs to be targeted. Independence and integrity in administering and enforcing the Act are essential. Recently it’s been concerning to see the reported politicisation of decisions around the Adani Carmichael mine approvals. The decision of then Environment Minister Melissa Price to approve Adani’s groundwater management plan was followed by exposure that she dismissed independent advice from the CSIRO and Geoscience Australia about clear inadequacies in the plan after political pressure from colleagues. Similarly, it’s concerning that the Queensland Government, immediately after the federal election, requested the Coordinator General to ‘develop a definitive timeframe’ for remaining State environmental approvals. The delays on approval prior to this were due to Adani’s inability to adequately meet legal requirements for the plans.
Our environmental regulators and decision makers must be independent of political sway and sufficiently funded to do their job of regulation and enforcement. This is the reason why we also strongly support the implementation of a federal anti-corruption body, as our State, Territory and Local Governments around Australia are subject to.
So, yes the law needs to change, but without governance behind those laws that ensures integrity and independence from political or development influence, even the best laws will fail.