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Precedent (Australian Lawyers Alliance) |
ACCOUNTABILITY UNDER NATIONAL ENVIRONMENTAL LAWS
NELA’S WAY FORWARD
The last four years have seen substantial calls for amendments to environmental and cultural heritage laws around Australia. Of primary concern is the continued deterioration of Australia’s natural and cultural environment while environmental approvals are overly prescriptive and cumbersome and poorly administered and enforced. Australia has the ignominious distinction of having the highest historical rate of mammal extinctions in the world[1]; 19 ecosystems have been assessed as ‘collapsing’.[2]
This article summarises and explains several recent submissions that incorporate the calls of the National Environmental Law Association (NELA) for stronger accountability mechanisms for decisions under improved national environmental and cultural heritage laws, and for Australia to better comply with international standards concerning national environmental governance and human rights. This article argues that the Australian National Audit Office (ANAO) should perform the functions of the proposed Environment Assurance Commissioner, that a national Environmental Protection Authority is needed, and that several other accountability mechanisms ought to be progressed.
NELA has engaged with several inquiries in 2019–2021 concerning the reform of Australia’s main national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), and the Queensland Parliamentary Inquiry into the Environmental and Other Legislation (Reversal of Great Barrier Reef Protection Measures) Amendment Bill 2021 (Dametto Bill). NELA has recommended that both the Australian Government’s Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 (Cth) (Standards and Assurance Bill) and the Queensland private member’s Dametto Bill not proceed.
NELA is concerned that the Bills, if passed, will further erode Australia’s ecosystems, species, natural and cultural heritage values as well as the rights of First Nations peoples – all matters that the Australian Government is obliged to protect under international agreements, and that most Australians cherish.
The EPBC Act is Australia’s premier national environmental protection law that ensures Australia meets its obligations under the many international instruments to which it is a signatory,[3] including instruments for world heritage sites. The Act requires an independent review of the effectiveness of its provisions every ten years, to assess its operation and whether its objectives have been achieved. In 2020, the EPBC Act underwent its second major review. That review, by an independent expert panel headed by Professor Graeme Samuel AC, involved a period of external and public consultation and submissions, the provision of an interim report (released in June 2020),[4] the provision of a final report[5] (released in October 2020 – the Samuel Review Report) and further confidential expert consultations.
NELA has welcomed many of the 38 recommendations in the Samuel Review Report, including the introduction of national environmental standards focused on outcomes rather than processes.[6] A key message in the report is that the EPBC Act does not enable the Commonwealth to effectively fulfil its responsibilities to protect nationally important matters, including treaty obligations. For example, the EPBC Act has failed to arrest the decline of Australia’s natural environment and iconic places, negate increasing threats, and address best practice requirements for First Nations heritage legislation and, further, First Nations engagement.
Following the Samuel Review Report, in June 2021 the Australian Government released a pathway document for ‘reforming national environmental law’ along with a document containing a ‘proposed timeline for EPBC Act reforms’.[7] These documents prioritise the devolution of environmental approval powers to the states and territories under the single-touch approvals policy that the Senate has previously rejected.[8]
In recognition of stakeholder concerns about the Government’s time frame and past performance, the June 2021 report of the Senate Committee inquiry into the Standards and Assurance Bill recommended that the first review of any interim national environmental standard be completed within two years of the standard commencing, that a two-year sunset period be introduced for standards, and that any extension of the interim standards be subject to disallowance. This followed concerns from stakeholders and the Senate Standing Committee for the Scrutiny of Bills that the interim standards were exempt from the parliamentary disallowance process.[9] Government amendments to the Bill in the House of Representatives have since proposed a sunset clause for the interim first standards, but ministerial discretion to exempt a project from the standards remains.[10]
NELA also called for an urgent multi-level cross-jurisdictional review of current Aboriginal and Torres Strait Islander cultural heritage legislation, alongside EPBC Act reforms, in its submission to the joint Parliamentary committee inquiry into the heritage destruction of the Juukan Gorge in the Pilbara region of WA. NELA’s view is that heritage legislation is not adequately protecting Aboriginal and Torres Strait Islander cultural heritage. In May 2020, the destruction of 46,000-year-old caves in the Juukan Gorge caused irreversible loss for, and continuing impact upon, the Puutu Kunti Kurrama and Pinikura peoples. This is but one example of the negative impacts of environmental destruction, often legal under national and state and territory laws, on First Nations people. Additionally, there is no genuine engagement of Aboriginal and Torres Strait Islander communities in decision-making processes that directly impact them. The Samuel Review Report noted that the Indigenous Advisory Committee, currently constituted under the EPBC Act, operates only in a tokenistic manner. The Samuel Review Report recommends that the Indigenous Advisory Committee’s role be replaced with an Indigenous Engagement and Participation Committee that provides policy advice to the Minister on First Nations engagement and participation in decision-making under the EPBC Act,[11] supported by a specific national environmental standard.
NELA supports the view that all environmental and cultural heritage legislation, including planning laws, and national standards under the EPBC Act, should be consistent with best practice international standards, including the United Nations (UN) Declaration on the Rights of Indigenous Peoples and other international agreements (as recommended by the Samuel Review Report). This would ensure that First Nations peoples’ cultural traditions and customs, right to self-determination and right to provide prior and informed consent are better protected.
In October 2021 the Joint Standing Committee on Northern Australia tabled its report, The Way Forward, following completion of its Juukan Gorge inquiry. The report made eight recommendations, including that an overarching Commonwealth legislative framework be developed through a process of co-design with Aboriginal and Torres Strait Islander peoples to better protect Aboriginal and Torres Strait Islander people’s cultural heritage, that the Native Title Act 1993 (Cth) be reviewed, and that the Australian Government endorse and commit to implementing Dhawura Ngilan: A vision for Aboriginal and Torres Strait Islander heritage in Australia.[12]
Before the EPBC Act was implemented, states and territories were primarily responsible for environmental management in their own jurisdictions. This led to community protests and litigation in many jurisdictions in relation to the mismanagement of iconic places such as the Queensland Wet Tropics, Tasmania’s Franklin River and Fraser Island.[13] The EPBC Act was developed in part to foster more ecologically sustainable development after the 1992 Earth Summit and to enable Australia to better comply with the various multilateral environmental agreements that it had ratified then and has since ratified.
The Australian Government’s current reform agenda returns Australia to the inter-governmental responsibilities in place before the EPBC Act was introduced, but with changed oversight arrangements. Currently, approval must be granted at the state or territory level, and at the national level if it affects a matter of national environmental significance. The Standards and Assurance Bill proposes a single-touch approval process that requires a jurisdiction to assess an application wearing two hats – that of the state or territory’s own interests, and that of national interests.[14] This naturally raises concerns of inherent conflict between these interests.
Further concerns include Australia’s non-compliance with international obligations in the absence of strong national environmental standards, a new inter-governmental environmental agreement engaging all levels of government, and a strong independent commissioner. For example, urgent reform is needed to avoid future controversies such as the proposed development of an apartment and retail complex in Toondah Harbour that threatens the Moreton Bay Ramsar wetlands in Queensland – an area that is an internationally protected wetland under the Ramsar Convention.[15]
The Dametto Bill is indicative of the risks of single-touch approvals. The Bill seeks to repeal the amendments made in the Environmental Protection (Great Barrier Reef Protection Measures) and Other Legislation Amendment Act 2019 (Qld) to the Environmental Protection Act 1994 (Qld) and the Chemical Usage (Agricultural and Veterinary) Control Act 1988 (Qld). Specifically, the Bill would have the effect of reducing penalties for property owners and farmers who breach the obligations governing chemical run-off into the Great Barrier Reef (GBR), and limiting the definition of agricultural environmentally relevant activities. A single-touch approval, in the unlikely event that the Dametto Bill is passed, would create a conflict of interest between Queensland’s obligations to farmers and landholders and national concerns for the health of the GBR. If the Bill were to be passed, it could jeopardise the accreditation of Queensland’s approvals under the proposed ‘single-touch’ process, as the Dametto Bill is unlikely to comply with the applicable national standard under the EPBC Act since the Australian Government has supported the implementation of regulations to improve the GBR’s water quality.
NELA’s submissions noted that the Bill is inconsistent with the federal and Queensland Governments’ aims to meet the water quality targets set out in the Reef 2050 Water Quality Improvement Plan[16] and would weaken the regulatory measures implemented to reduce the impact of agricultural practices on the GBR’s water quality, at a time when progress towards the Reef 2050 targets is too slow. Additionally, the Bill would detract from Australia’s ability to fulfil its obligations under the World Heritage Convention[17] and Biodiversity Convention.[18] Indeed, approval of the Bill would put the GBR at further risk of being listed as ‘in danger’ by the World Heritage Committee, possibly in 2022. (See the article ‘Governing the Great Barrier Reef’, pp. xx–xx in this edition, which discusses the ‘in-danger’ listing of the GBR.)
The Dametto Bill is unlikely to be passed with the current make-up of the Queensland Parliament, but parliamentary numbers can be volatile in Queensland. That volatility casts doubt on the durability of single-touch approvals under the EPBC Act and bilateral approval agreements that are predicated on the accreditation of state and territory environmental laws and policies. A stronger national standard for matters of national environmental significance would need to be developed first, however, to endanger that accreditation as the draft national standard currently simply re-states the broad and discretionary EPBC Act provisions.
The Samuel Review Report recommended the creation of an independent national Environment Assurance Commissioner and an Office of Compliance and Enforcement, with the Secretary of the Department of Agriculture, Water and the Environment, to be assigned independent powers for Commonwealth compliance and enforcement. The Department would administer the Office of Compliance and Enforcement while the Environment Assurance Commission would be independent, but staffed by the Department and probably located within the Department. Professor Samuel's interim report had called for a strong, independent cop on the beat, to rectify existing issues with non-compliance and lack of monitoring, and to act as an independent auditor.[19]
In its submissions on the Standards and Assurance Bill, and to the joint parliamentary committee review of the Auditor-General Act 1997 (Cth) (Auditor-General Act), NELA recommended that the ANAO perform the functions of the Government’s proposed national Environment Assurance Commissioner, with an appropriate increase in ANAO budget funding.
NELA’s view is that the Commissioner’s proposed role is insufficiently independent and that the ANAO has a strong track record with environmental law audits, including in relation to the GBR Marine Park Authority.[20] The Standards and Assurance Bill does not provide sufficient assurance that the Commissioner’s role would be independent of government and free from real or perceived political interference, as recommended in the Samuel Review Report.
While s501R of the Bill provides that the Commissioner is not subject to the direction of the Minister in performing their functions, the Commissioner must finalise work plans for each financial year setting out their annual priorities in consultation with the Minister, whose views the Commissioner is required to consider in finalising work plans (s501P). The Samuel Review Report provides that the Commissioner should have regard to the audit priorities of the Minister when identifying their priorities.[21] This compromises the independence of the Commissioner in prioritising actions and investigations. Further, s501S provides that the Minister may, in writing and with reasons, request the Commissioner to perform certain functions. The Commissioner may refuse to agree to this request, but the Minister’s right to request implies a lack of independence.
Also, the ability of the Commissioner to rectify errors and instigate needed change is lacking. While the Bill requires the Commissioner to give annual reports to the Minister, these reports relate only to the Commissioner’s activities, rather than to the performance of Commonwealth and accredited parties against national environmental standards, as recommended in the Samuel Review Report.[22]
NELA has also recommended that rule 17AG(3) of the Public Governance, Performance and Accountability Rule 2014 (Cth) – made under the Public Governance, Performance and Accountability Act 2013 (Cth) – be amended to include reference to the external scrutiny (reviews and decisions) applied by international governmental organisations, including UN agencies, regional organisations and convention bodies. Such a reform would enhance transparency and accountability in relation to Australian Government activities, particularly for lay researchers who may not have ready access to the UN’s document system. It could also provide a trigger for Senate legislation committees to scrutinise Australia’s performance under various multilateral treaties, including, for example, Biennial Transparency Reports under the 2015 Paris Agreement,[23] Australia’s five-yearly reports under the Biodiversity Convention, and decisions of UNESCO’s World Heritage Committee. The Joint Standing Committee on Treaties could also provide that scrutiny but may be less willing to, given its joint house membership.
The amendment of rule 17AG(3) could be a significant reform. The Australian Government needs to be held more accountable for better implementing its Paris Agreement and post-2020 Global Biodiversity Framework[24] obligations (when agreed), for example, among its other treaty obligations. National accountability measures are important as many international treaties have facilitative rather than direct accountability mechanisms, and diplomatic niceties tend to downplay explicit criticism of poor environmental governance.
The inquiry by the Australian Parliament’s Joint Committee of Public Accounts and Audit has not yet reported on its review of the Auditor-General Act, so its position on these recommendations remains unknown.
NELA has also called for an independent, statutory Commonwealth Environment Protection Authority (EPA), with responsibility for administering the Commonwealth’s environmental assessment and approval system, alongside the continued operation of the current system for assessment bilateral agreements under the EPBC Act. Assessment bilateral agreements currently operate similarly to the proposed ‘single-touch’ policy (other than for project approvals), where a jurisdiction assesses the impacts of a project on the environment and oversees impact assessments accounting for both state/territory matters and matters of national environmental significance. The ANAO has been highly critical of the Commonwealth’s implementation of the EPBC Act. The case for a national EPA to regulate environmental contaminants and to adopt standards to replace other weak National Environment Protection Measures is also a compelling, but longer term, reform project.[25]
NELA’s view is that Ministerial discretion in the Standards and Assurance Bill should be better circumscribed and linked to stronger and clearer objects provisions in the EPBC Act. For example, the Bill enables the Minister to exempt state and territory processes in the ‘public interest’ from national environmental standards.
NELA has recommended that open standing provisions enable stakeholders to challenge Ministerial decisions, including decisions regarding exemption from or compliance with national environmental standards.
There are egregious examples of non-compliance with procedures under the EPBC Act. For example, the exercise of governance responsibilities for native forest industries by the states and territories has been accompanied by instances of inadequate compliance, recently confirmed by the Federal Court of Appeal (now on further appeal to the High Court).[26] Further, several mandatory five-yearly reviews of Regional Forest Agreements either have not been completed or were submitted late.[27]
In addition, NELA has recommended that a Commonwealth Ombudsman and/or proposed Commonwealth integrity body be funded to investigate complaints concerning the implementation of the EPBC Act. The Samuel Review Report recommended that the Environment Assurance Commissioner have the function of investigating complaints, including from the public, regarding the performance of accredited arrangements or decision-makers. However, the Standards and Assurance Bill does not empower the Commissioner with the ability to investigate complaints.
NELA has also recommended that, in order to counter persistent and pervasive claims and perceptions that environmental protection and economic growth are mutually exclusive, and in order to quantify the environment’s contribution to our national economy and wellbeing, the nationally agreed policy and action of environmental-economic accounts be communicated widely for public education purposes. In 2018, all Australian Governments agreed on a national strategy and action plan to implement the UN System of Environmental-Economic Accounting across Australia, but little national progress appears to have occurred or to have been promoted publicly since then.[28] UNSW is a partner in a global oceans accounting initiative,[29] and several regionally focused projects are underway,[30] but these few examples are far from indicating the implementation of a coherent national strategy.
Overall, when the proposed legislative amendments to the EPBC Act are considered, they do little to further Australia’s path towards more ecologically sustainable development or to implement the detailed and well-considered recommendations contained in the Samuel Review Report.
As at the date of submission of this article (October 2021), the second-reading debate on the Standards and Assurance Bill had not resumed after being adjourned for the Senate Committee inquiry that finished in June 2021.
The Queensland Parliament’s Health and Environment Committee recommended in October 2021 that the Dametto Bill not be passed. See Environmental and Other Legislation (Reversal of Great Barrier Reef Protection Measures) Amendment Bill 2021 (Report No. 14, 57th Parliament, October 2021), at
https://documents.parliament.qld.gov.au/tableoffice/tabledpapers/2021/5721T1776.pdf.
NELA is a multi-disciplinary peak body for advancing Australian environmental law. One of NELA’s objectives is to provide a forum for discussing, considering and advancing environmental law across the legal profession and the wider community. A key role of NELA is to engage with the law reform process and to make non-partisan submissions to Parliamentary and Senate Inquiries concerning a broad range of environment and cultural heritage laws. To find out how you can support the activities of NELA, visit www.nela.org.au.
Dr Hanna Jaireth is the current NELA President, a lawyer and a nationally accredited mediator. WEBSITE https://anu-au.academia.edu/HannaJaireth.
Dr Katie Woolaston is an NELA Director and an inter-disciplinary researcher, lawyer and lecturer in the School of Law at QUT. WEBSITE https://staff.qut.edu.au/staff/katie.woolaston.
[1] A Fox, ‘Australian mouse presumed extinct for more than a century found alive on island’, Smithsonian Magazine, 29 June 2021 <https://www.smithsonianmag.com/smart-news/australian-mouse-presumed-extinct-more-century-found-alive-island-180978086/>.
[2] D Bergstrom, E Ritchie, L Hughes and M Depledge, ‘“Existential threat to our survival”: See the 19 Australian ecosystems already collapsing’, The Conversation, 26 February 2021 <https://theconversation.com/existential-threat-to-our-survival-see-the-19-australian-ecosystems-already-collapsing-154077>.
[3] These include commitments under the Convention on Biological Diversity, opened for signature 5 June 1992, 31 ILM 822 (entered into force 29 December 1993) (Biodiversity Convention); the Convention on the Conservation of Migratory Species of Wild Animals, opened for signature 23 June 1979, 1651 UNTS 333 (entered into force 1 November 1983); and the Convention Concerning the Protection of the World Cultural and Natural Heritage, opened for signature 23 November 1972, 1037 UNTS 151 (entered into force 15 December 1975).
[4] Department of Agriculture, Water and the Environment, G Samuel AC, Independent Review of the EPBC Act – Interim Report (Interim report, June 2020).
[5] Department of Agriculture, Water and the Environment, G Samuel AC, Independent Review of the EPBC Act – Final Report (Final report, October 2020 (released in January 2021)).
[6] Ibid.
[7] See <https://www.environment.gov.au/system/files/resources/02baf838-1d1c-492d-8014-ae9fc356f845/files/pathway-reforming-national-environmental-law.pdf> and <https://www.environment.gov.au/epbc/publications/proposed-timeline-for-epbc-act-reforms>.
[8] The Australian Government’s single-touch approval policy concerns the streamlining of approvals under the EPBC Act of actions that may have a significant impact on matters of national environmental significance. State and territory processes will be accredited under bilateral agreements that enable the states and territories to approve actions concerning Commonwealth-protected matters. For background, see H Jaireth and M Figg, ‘Dispute resolution and the “EPBC Act bilaterals”’, Local Government Local Journal, Vol 19, 2014.
[9] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2021, 21 April 2021.
[10] See <https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6683>.
[11] G Samuel AC, above note 6, 8.
[12] Heritage Chairs of Australia and New Zealand, Dhawura Ngilan: A vision for Aboriginal and Torres Strait Islander heritage in Australia, September 2020 <https://www.awe.gov.au/sites/default/files/documents/dhawura-ngilan-vision-atsi-heritage.pdf>.
[13] These court challenges concerned stopping sand mining on Fraser Island in Queensland after export approval was refused: Murphyores Inc Pty Ltd v Commonwealth [1976] HCA 20; (1976) 136 CLR 1; prohibiting the construction of a state-authorised dam in Tasmania: Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1; and stopping rainforest logging in Tasmania and the Wet Tropics of Queensland (by nominating the area for World Heritage listing as a precursor to prohibiting logging as incompatible with the World Heritage values): Richardson v Forestry Commission (1988) 164 CLR 261; Queensland v Commonwealth [1989] HCA 36; (1989) 167 CLR 232. See generally: G Early, ‘Australia’s national environmental legislation and human/wildlife interactions’, Journal of International Wildlife Law and Policy, Vol. 11, 2008; and A Morton, ‘Changes to Australia’s environmental laws would risk return to “confusion”, inquiry told’, The Guardian, 23 November 2020 <https://www.theguardian.com/environment/2020/nov/23/changes-to-australias-environment-laws-would-risk-return-to-confusion-inquiry-told>.
[14] Australian Network of Environmental Defender’s Offices (ANEDO), ‘Objections to the proposal for an environmental “one stop shop”’ (Media release, 2014) <http://d3n8a8pro7vhmx.cloudfront.net/edonsw/pages/1235/attachments/original/1387519201/131216_ANEDO_opposition_one_stop_shop.pdf?1387519201> .
[15] Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat, opened for signature 2 February 1971 (entered into force 21 December 1975) (Ramsar Convention); ‘Attorney general’s department advised Coalition Toondah Harbour development could breach wetlands convention’, The Guardian, 8 August 2021 <https://www.theguardian.com/environment/2021/aug/08/attorney-generals-department-advised-coalition-toondah-harbour-development-could-breach-wetlands-convention?CMP=Share_iOSApp_Other>.
[16] Australian Government and Queensland Government, Reef 2050 Water Quality Improvement Plan 2017–2022 (Plan, 2018) <https://www.reefplan.qld.gov.au/__data/assets/pdf_file/0017/46115/reef-2050-water-quality-improvement-plan-2017-22.pdf>.
[17] Convention Concerning the Protection of the World Cultural and Natural Heritage, opened for signature 16 November 1972, 1037 UNTS 151 (entered into force 17 December 1975) (World Heritage Convention).
[18] Biodiversity Convention, above note 3.
[19] G Samuel AC, above note 5, 2, 15, 92 and 95.
[20] ANAO, Regulation of Great Barrier Reef Marine Park Permits and Approvals – Follow-up (Auditor-General report no. 44, 2021) <https://www.anao.gov.au/work/performance-audit/regulation-great-barrier-reef-marine-park-permits-and-approvals-follow-up>.
[21] G Samuel AC, above note 6, 124.
[22] Ibid, 31, rec 7.
[23] Paris Agreement, opened for signature 12 December 2015 (entered into force 4 November 2016).
[24] See <https://www.cbd.int/conferences/post2020>.
[25] RK Niven, S Khan, M Taylor, SP Wilson and I Wright, Summary and Position Paper: The need for a Commonwealth Environmental Protection Agency (CEPA) for enforcement of the regulation of environmental contaminants (Position paper, May 2019); RK Niven, ‘Parliamentary Inquiry into the Management of Per- and Polyfluoroalkyl Substance (PFAS) Contamination in and around Defence Bases’ (Submission, 6 July 2018).
[26] The Federal Court of Appeal in VicForests v Friends of Leadbeater’s Possum Inc [2021] FCAFC 66 overturned most of the orders made by Mortimer J in Friends of Leadbeater's Possum Inc v VicForests (No. 4) [2020] FCA 704 but upheld most of Her Honour’s findings that logging operations in certain areas of forest in Victoria's Central Highlands breached the applicable Regional Forest Agreement by failing to comply with the Victorian Code of Practice for Timber Production 2014.
[27] Tasmania completed the mandatory reviews, but the Commonwealth and NSW rolled NSW’s second and third reviews into one: see <https://www.epa.nsw.gov.au/your-environment/native-forestry/about-public-native-forestry/regional-forest-agreements-assessments/review-regional-forest-agreements>.
[28] Australian Government, Environmental Economic Accounting: A common national approach (Strategy and action plan, April 2018) <https://eea.environment.gov.au/about/national-strategy-and-action-plan>.
[29] See <https://www.globalwaterinstitute.unsw.edu.au/news/unsw-joins-global-ocean-accounts-partnership-for-sustainable-development>.
[30] See for example Queensland’s Mitchell River <https://www.nespnorthern.edu.au/projects/nesp/environmental-economic-accounting/>.
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URL: http://www.austlii.edu.au/au/journals/PrecedentAULA/2021/64.html