This article was written by Gabby Walker on behalf of the MLC Green Team
Whilst the country is grappling with the effects of COVID, the federal government, although not short of any criticism regarding the states’ individual responses to the coronavirus, is seeking to hand off the jurisdiction of approving major infrastructure projects to them, right under our noses.
Changes to the Environment Protection and Biodiversity Conservation Act of 1999 (EPBC Act) have been rammed through the House of Representatives to the dismay of the Labor Party, the Greens and the cross bench. If passed, the bill shifts the onus for approval of major infrastructure projects to the state governments, instead of following the current federal procedures. This legislation regulates a broad range of projects including roads, rails, mining and power infrastructure. Put simply, divesting this responsibility to the states, which have inadequate expertise to gauge environmental implications as well as an inherent conflict of interest due to the gains which are likely to be generated from these works, poses great risk to the environment. It would seem to be an abrogation of the federal government’s responsibilities. The Minister for the Environment, Sussan Ley says “it will allow projects to be fast-tracked.”[1] and that moving to a “single touch” approval system would “reduce regulatory burden, promote economic activity and create certainty around environmental protections”. She also claims that the deregulation of these powers is necessary for Australia’s economic response to COVID-19.[2]
Tony Abbott proposed extremely similar policy as the Prime Minister in 2014, and although it was defeated at that point in time, under the cloak of COVID, it may just slip through the cracks.[3]
To attempt to make these changes whilst there are two enquiries in progress which will provide vital insight into environmental policy direction in Australia, is highly questionable. The first of these enquiries is the Royal Commission into National Natural Disaster Arrangements, and whilst its final report is yet to be released, the Interim Report, states very clearly the need to centralise our response to these disasters and certainly did not suggest divesting accountability to the states. The following quotation clearly supports the importance of a national approach. “We have conducted our inquiry during the COVID-19 pandemic, which has highlighted to us the importance and feasibility of, and public expectation for, national coordination in response to a national crisis… The Australian Government also has capability and capacity not available to the states and territories.” [4] The report also contains strong recommendations for a set of national standards which is a glaring omission in the proposed bill. [5]
The statutory review of the EPBC Act which commenced in late October 2019, is the second enquiry that is currently underway, and is arguably even more relevant to environmental policy in Australia. Headed up by Professor Graeme Samuel AC, the final report is due later this month.[6] Despite this timeline, the proposed legislative changes are scheduled to be debated during the October budget sittings in the Senate[7], in advance of the final publication of Samuel’s findings. With the outcomes of these reviews imminent, the rushing through of the bill suggests a reluctance to have an informed debate. Sussan Ley has said that “where there are opportunities to make sensible changes ahead of the final EPBC review report, [that she] will be prepared to do so.”[8] Given that the changes proposed by the bill are of great significance in divesting responsibility to the states, it appears to be an extraordinary assumption to make without being informed by the outcomes of these important reviews.
The government would argue, under the auspices of economic stimulus, that fast-tracking approvals of these projects, even despite arguable environmental impacts, should be a priority[9]. In line with this, 15 major infrastructure projects, including the Narrabri Gas Project[10], have been approved within the last 4 months, which seems relatively high and begs the question if appropriate scrutiny has been applied.
A further concern with this bill is that there will be minimal accountability on a national level. Of note, the federal government is the signatory to Australia’s international environmental commitments, for example the Conservation of Migratory Species and the World Heritage Convention. It seems irresponsible to devolve power to the states when these commitments are becoming progressively more important, especially when the bill doesn’t compel the states to meet these obligations. In the Royal Commission Interim Report, it is explicitly stated that “current arrangements do not provide a clear mechanism to elevate matters to national leaders.” [11] This would only be exacerbated if this bill passed.
Another significant flaw in the bill is that states have an inherent conflict of interest. Given that they are likely to profit from royalties or other economic advantages as a result of these projects, their ability to give full and appropriate consideration to the environmental impacts of them must be questioned.[12]
Beyond the specifics of the bill, there is a real question around the democratic process surrounding it. The government suppressed debate in the lower house as evidenced by failure to speak to the bill and no consideration of the proposed amendments by the Labor Party, the Greens and the cross bench. It was simply passed using the government’s majority position without debate. Reflecting this, representatives from both Labor and the Greens expressed their concern for the lack of political discourse stating that “to just gag that debate, to prevent people from having their say… is a real disgrace” [Terri Butler, Labor] and that the coalition is “trashing the environment and trashing democracy” [Adam Bandt, Greens].[13] There has also been significant outcry from the cross bench. Zali Steggall, an independent MP, proposed an amendment which directly referenced the recommendations of the interim report for the Royal Commission, regarding the requirement for national standards. Stegall has said that “this is appalling conduct by government minister [Sussan] Ley, the prime minister and every coalition MP that is supporting this… This was about abrogating your rights, all of you, in having a voice in this parliament and knowing that you will actually have an environment that is going to be protected.”[14] Andrew Wilkie, another independent, dismissed the bill as “environmental vandalism in the extreme”. He criticised its blatant disregard towards the recommendations of the interim report and called it a “complete contempt for democracy”.[15]
The bill has been met with general dismay from key stakeholders and experts in the environmental space as well. Rachel Lowry, Australia’s chief conservation officer at WWF said, “if approved, this bill will fail Australians at this critical moment in time because it fails to incentivise win-win solutions that stimulate our economy and protect the places and animals we love.”[16] There has also been condemnation of the democratic process, that surrounded the absence of debate and the speed with which this bill was passed in the lower house. The Policy and Law Reform Director at the Environmental Defenders Office, Rachel Walmsley believes the bill may undermine the statutory review of the EPBC.[17] She also argues that “it was a fairly atrocious process that, moments before adjournment, they rammed it through… The gagging of the debate, the fact they prevented voting on amendments and the fact no government MP stood up to justify the policy – it prevented proper parliamentary scrutiny.” [18]
There is no doubt that the COVID-19 pandemic has had enormous ramifications for the Australian community. And at the same time, the environmental crisis that Australia faces remains ever-present. Allowing these changes to go through under the guise of economic stimulus will have dire consequences for the environment and future generations. We can only hope that the democratic process in the upper house and evidence-based policy will prevail.
[1] Geoff Cousins, “Under the clock of Covid, the government is rushing ill-considered changes to Australia’s environment laws.” The Guardian, September 4 2020, https://www.theguardian.com/commentisfree/2020/sep/04/under-the-cloak-of-covid-the-government-is-rushing-ill-considered-changes-to-australias-environment-laws.
[2] Lisa Cox, “Australian government gags debate to ram environmental law changes through lower house” The Guardian, September 3 2020, https://www.theguardian.com/australia-news/2020/sep/03/australian-government-gags-debate-to-ram-environmental-law-changes-through-lower-house.
[3] ibid
[4] Royal Commission into National Natural Disaster Arrangements, Interim observations (Australian Government, August 31 2020), 6,7. https://naturaldisaster.royalcommission.gov.au/system/files/2020-08/Interim%20Observations%20-31%20August%202020_0.pdf.
[5] ibid, 7
[6] “The independent review of the Environment Protection and Biodiversity Conservation Act 1999,” Independent review of the EPCB Act, October 2 2020, https://epbcactreview.environment.gov.au/.
[7] Lisa Cox, “‘Recipe for extinction’: why Australia’s rush to change environment laws is sparking widespread concern.” The Guardian, September 6 2020, https://www.theguardian.com/australia-news/2020/sep/06/recipe-for-extinction-why-australias-rush-to-change-environment-laws-is-sparking-widespread-concern.
[8] Lisa Cox, “Coalition is aiming to change Australia’s environment laws before review is finished.” The Guardian, April 23 2020, https://www.theguardian.com/australia-news/2020/apr/23/coalition-is-aiming-to-change-australias-environment-laws-before-review-is-finished.
[9] Peter Burnett, “Environment Minister Sussan Ley is in a tearing hurry to embrace nature law reform – and that’s a worry.” The Conversation, July 20 2020, https://theconversation.com/environment-minister-sussan-ley-is-in-a-tearing-hurry-to-embrace-nature-law-reform-and-thats-a-worry-141697.
[10] “EPBC Act major projects,” Australian Government Department of Agriculture, Water and the Environment, October 2 2020, https://www.environment.gov.au/epbc/major-projects.
[11] Royal Commission into National Natural Disaster Arrangements, Interim observations, 9.
[12] Cousins, “Under the clock of Covid, the government is rushing ill-considered changes to Australia’s environment laws.”
[13] Cox, “Australian government gags debate to ram environmental law changes through lower house”
[14] ibid
[15] ibid
[16] Cox, “‘Recipe for extinction’: why Australia’s rush to change environment laws is sparking widespread concern.”
[17] ibid
[18] ibid
