Institutions matter: the case for a National Environment Commission
by Janaline Oh October 2023
The 2021 State of the Environment report outlines in chilling detail the extent to which Australia’s biodiversity is in crisis.(1) Every environmental indicator is in decline. Australia has the worst extinction rate for mammal species in the world, even without taking into account the likely significant undercounting of extinctions. What can be done to arrest and reverse this situation?
Successive governments have established independent expert advisory bodies in areas where there is a need for technical expertise in a politically contested space. The Climate Change Authority, Infrastructure Australia and the Productivity Commission (and one of its precursor bodies, the Hawke government’s Resource Assessment Commission) come to mind. The establishment of such institutions acknowledges the limitations of government departments in stepping away from the day-to-day task of administering government to delve in a deep technical way into specific issues: a task essential to inform the department’s overall policy and program development, but difficult for it to perform itself.
In presenting the State of the Environment report soon after taking office, the Minister for the Environment and Water acknowledged the magnitude of her task in protecting and restoring Australia’s environment, and committed the Government “[to] protect, to restore, and to manage Australia’s environment”.(2) She promised to do this by implementing systemic change in the environment laws. In doing so, she will draw on the review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC) conducted for the previous government by Professor Graeme Samuel.
The EPBC governs development approvals for projects that might affect “matters of national environmental significance”, principally threatened species and environmental matters for which Australia has international treaty obligations (migratory birds, World Heritage, wetlands).
Less well known is that its objects also include a statement that the Act:
(e) enhances Australia’s capacity to ensure the conservation of its biodiversity by including provisions to ...
(iv) identify processes that threaten all levels of biodiversity and implement plans to address these processes(3)
In other words, the Act is also intended to preemptively identify emerging threats and undertake conservation planning to avoid or mitigate those threats.
In the 24 years of its operation, this law has overseen a decline in environmental values and an increase in threats to Australia’s unique biodiversity and habitats.
Successive reports by the Australian National Audit Office into the monitoring of compliance of EPBC approvals,(4) referral, assessment and approval of controlled actions under the EPBC,(5) and management of threatened species and ecological communities(6) have found the department has at best been partially effective in discharging its obligations. The audit office found the department’s management of controlled actions to be ineffective in 2020 and, in 2022, that only 2% of threatened species recovery plans had been completed within statutory time frames.(7)
In his 2020 review of the Act, Professor Samuel found the EPBC “ineffective” and “not fit to address current or future environmental challenges”.(8) Furthermore, he found that “[the] community and industry do not trust the EPBC Act and there is merit in their concerns”.(9) Among the concerns were the length of time it took to secure approvals and a lack of transparency around decision-making. Samuel also found a wide- spread sense within the community “that the environment is losing out to other considerations due to proponents having undue influence on decision-makers”.(10)
The lesson to be learned from the Samuel Review and the history of the EPBC’s manifest failure to meet its own objectives is that clearly laws are not enough. Stopping and reversing the crisis in Australia’s biodiversity and native ecosystems requires expert, independent and well-resourced institutions that can proactively prevent and restore damage, not just to manage decline.
The Government will establish an environmental protection authority (Environment Protection Australia — EPA) to assess and transparently decide on development approvals, and to ensure compliance with development conditions with a budget of $121 million over 4 years.(11) Environment Information Australia, within the Department of Climate Change, Energy, the Environment and Water, will have a budget allocation of $51.5 million over 4 years to collect essential data to underpin decision-making on environmental issues.(12) Both are welcome. But not enough.
Neither proposed body will provide an independent, expert capacity to analyse the data, identify biodiversity priorities and emerging threats, and propose innovative, technically informed, policy responses to emerging issues before they turn into environmental harm.(13) The regulator (the EPA) cannot do this: its job is to assess approval applications and ensure compliance. Environment Information Australia cannot do this: its job is data collection and mapping. A government department cannot do this: the EPBC already gives the Minister (supported by the department) significant powers to commission research,(14) conduct surveys(15) and undertake bioregional planning(16) to identify emerging issues and propose policy solutions. Indeed, the EPBC has specific provisions for the Minister to commission inquiries into emerging issues under the Act.(17) In 24 years of operation, such forward planning has been absent and no inquiries have been commissioned.
Public service departments are neither structured nor resourced to carry out forward-looking strategic policy planning on highly technical issues. The 2019 Independent Review of the Australian Public Service found a “hollowing out of strategic policy skills”.(18) The current government’s public sector reform agenda and the Pub- lic Sector Amendment Bill 2023 seek to improve public service capability, but public service recruitment and promotion processes strongly favour generalist, rather than specialist, technical skills, particularly at higher management levels. Public service departments are also primarily responsible for servicing their ministers. While they can and should develop overarching policy advice for the Minister, they are not equipped to deliver the kind of specific, expert, technical advice needed to deliver the Minister’s ambition not only to arrest the decline in Australia’s environment and biodiversity, but to restore and repair it.
Partly in recognition of these limitations, the Samuel Review recommended the establishment of an overarching Ecologically Sustainable Development Committee to provide independent and transparent policy advice to the Minister on the national environment standards and regional plans, on progress in achieving the objectives of the Act and on the adequacy of environmental data and information.(19) A technically expert, independent National Environment Commission could appropriately carry out these and other functions (as noted below).
In 2017, the Australian Panel of Experts on Environmental Law (APEEL) published a report that identified many of the issues later explored in the Samuel Review, in which they explicitly recommended the establishment of a high-level Commonwealth Environment Commission to administer Commonwealth strategic environmental interests as well as relevant data, monitoring and reporting.(20) This would respond to the lack of consistent and coordinated data across the country, and the need for strategic analysis and assessment of that data to allow for conservation planning, rather than merely reacting to specific development proposals.(21)
One of the Samuel Review’s central recommendations is legislated national environment standards, against which all development approvals would be assessed.(22) The purpose of legislated standards would be to ensure a focus on outcomes rather than processes as under the current legislation. While the Minister has committed to including an initial set of national environment standards within the revised national environment laws and has a consultative process underway to deliver them, such standards will need to be reviewed from time to time to ensure they remain relevant to current conditions, particularly given the impacts of climate change.
A National Environment Commission would be analogous to the Climate Change Authority, which collects and analyses data on Australian emissions and advises the Minister on policy responses to reduce emissions, including ultimately targets for emissions reduction. A National Environment Commission could collect and analyse the data on the environment and biodiversity, examine existing and emerging threats and threatening processes, and advise the Minister on policy responses. It could work closely with the proposed Environment Information Australia to use the data it collects in developing proactive conservation planning. Indeed, a National Environment Commission could potentially absorb Environment Information Australia within its broader mandate, or Environment Information Australia could be expanded and strengthened to become a National Environment Commission.
A National Environment Commission could commission a bioregional survey of Australia to identify biodiversity hotspots, and ecosystems that need particular protection. It could conduct one or more broad-based inquiries into all the different issues surrounding biodiversity protection, landholder and community needs, and the pressing need for the energy transition. A socially and economically informed map of biodiversity priorities could guide investment in a future Nature Repair Market, as well as identifying high priority areas for direct public investment in biodiversity conservation and restoration. It could also assist the Minister in developing the regional planning she envisages under the revised national environment laws, by helping at least to identify those areas where development should never occur.(23)
A National Environment Commission could publish regular updates on issues identified in the five-yearly State of the Environment report, to facilitate early intervention into emerging threats. One of the challenges of having a State of the Environment report only every 5 years is that the time lag between reports means that emerging risks and threats are often already occurring by the time they are identified. More regular updates on specific issues would feed into the five-yearly reports but also usefully allow for emerging issues to be identified before they develop into actual problems.
An independent, expert National Environment Commission would restore public trust in the processes for environmental protection and biodiversity restoration. It would have its own profile and identity to protect it from a future government: when the Abbott government dismantled the former Department of Climate Change and Energy, it failed to dismantle the Climate Change Authority,(24) the Clean Energy Finance Corporation(25) and the Australian Renewable Energy Agency(26) because these institutions were known and valued by the parliament and the Australian public. It is easy for new governments to change departmental structures and arrangements under machinery of government changes after an election. Independent statutory authorities created under their own legislation are much harder to dismantle.
A National Environment Commission with a comparable mandate and structure to the Climate Change Authority would facilitate essential collaboration between these two important advisory bodies.
A National Environment Commission would not detract from the role of the department in providing program delivery and policy advice to the Minister. But it would provide the proactive planning and early identification of environmental threats that the department has never managed to carry out under the current environment laws.
In 1989 the Hawke Government set up the Resource Assessment Commission (RAC)(27) at the same time and with similar powers and functions to the Industry (now Productivity) Commission to conduct independent inquiries into major natural resource use questions. It held three broad-based inquiries, bringing together all relevant stakeholders in a process involving submissions and public hearings. The inquiry into mining in Kakadu National Park led the Keating government to extend the conservation zone. The inquiry into forestry led to the 1992 National Forest Policy Statement, which is still in force, although the Minister for Agriculture, Drought and Emergency Management Australia has recently committed to review it.(28) The inquiry into coastal zones was never completed before the RAC was disestablished in 1993.
There are already pressing issues that a technically expert, independent National Environment Commission could address. The rapid transformation of Australia’s electricity grid to renewable energy will require new generation infrastructure and much more transmission across the country. Much of this may affect areas with high biodiversity values, some of which may be home to threatened species. It is already highly contentious. A National Environment Commission could hold a broad-based inquiry of a similar nature to that undertaken by the Hawke-era RAC where landholders, energy proponents, workers, environmentalists, academics, traditional owners and local communities could be brought together to identify the issues and concerns involved, with a view to identifying where transmission infrastructure should be placed and what compensatory or mitigation measures should be taken in specific areas.
The RAC’s superpower was its ability to bring together different — often mutually hostile — stakeholders in a rational process trusted by the Australian public to arrive at a robust and credible outcome. Public trust in the independent commissioners and the transparent process led to broad acceptance of the outcomes. Such a model could work for contemporary, similarly contentious environment-related decisions.
A National Environment Commission could usefully have the following functions:
1. develop and update national environment standards;
2. work with the states and territories to undertake species and ecosystems surveys and develop bioregional plans;
3. oversee conservation planning, including regional plans and threatened species recovery plans;
4. oversee other biodiversity policies, such as methods and standards for a nature repair market;
5. review the effectiveness of regional plans and application of the standards;
6. closely collaborate with, or potentially absorb, Environment Information Australia, to collect and hold data to inform environmental decision making;
7. hold inquiries and write reports on matters of national environmental concern as requested by the Minister, or independently identified;
8. set targets for progress in achieving the environmental goals set by the Minister, and provide regular (annual) reports to parliament on those targets, enabling more timely action than allowed for by the five-yearly State of the Environment Report; and
9. recommend new Matters of National Environmental Significance.
A Commission need not be costly. The Climate Change Authority had a departmental appropriation of around $2.5 million and total resourcing of around $4 million in 2021–22.(29) A small technical staff supporting part-time Commissioners (who retain their roles as leaders in their respective fields) and perhaps a full time Commission Chair would be sufficient to provide the coordinating structure to deliver the functions outlined, as they would be drawing on the expertise of Australia’s broader research community. Human resources, admin- istrative and financial functions could remain with the public service department. The Climate Change Authority’s budget and resourcing has been substantially expanded by the current government to almost $11.5 million in 2022–23,(30) reflecting its expanded responsibilities under the Climate Change Act 2022. Once established, a National Environment Commission might be similarly expanded once the full scope of its potential is realised.
An independent and technically expert National Environment Commission with the functions outlined above could shift the dial for Australia’s biodiversity and natural environment from persistent decline to restoration. Better policies and laws are essential, but better institutions are required to deliver the outcomes our native ecosystems need.
Australian Government, Department of Climate Change, Energy, the Environment and Water, Australia State of the Environment 2021, accessed 28 August 2023, https://soe.dcceew.gov.au/ overview/key-findings.
T Plibersek, National Press Club address on the 2021 State of the Environment Report, 19 July 2022, accessed 28 August 2023, https://minister.dcceew.gov.au/plibersek/speeches/national-press- club-address.
Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 3(2)(e).
Australian National Audit Office, Monitoring Compliance with Environment Protection and Biodiversity Conservation Act 1999 Conditions of Approval: Follow-on audit, 2017.
Australian National Audit Office, Referrals, Assessments and Approvals of Controlled Actions under the Environment Pro- tection and Biodiversity Conservation Act 1999, 2020.
6. Australian National Audit Office, Management of Threatened Species and Ecological Communities under the Environment Protection and Biodiversity Conservation Act 1999, 2022.
8. G Samuel, Independent Review of the EPBC Act — Final Report, Department of Agriculture, Water and the Environment, Canberra, October 2020, p 1.
9. Above, p 9.
10. Above, p 9.
11. Australian Government, Department of Climate Change, Energy, the Environment and Water, Budget 2023–24, accessed 29 August 2023, www.dcceew.gov.au/sites/default/files/documents/ protecting-repairing-and-better-managing-the-environment-fs. pdf.
13. Australian Panel of Experts on Environmental Law, Environmental Governance Technical Paper 2, Melbourne, 2017, p 67.
14. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 171.
15. Above, s 173.
16. Above, s 176.
17. Above, ss 106–129.
18. Department of the Prime Minister and Cabinet, Our Public Service, Our Future. Independent Review of the Australian Public Service, Commonwealth of Australia, Canberra, 2019, 183.
19. Above, p 10.
20. Australian Panel of Experts on Environmental Law, The Future of Australian Environmental Laws Overview Paper, Melbourne, 2017, p 6
21. Australian Panel of Experts on Environmental Law, Environmental Governance Technical Paper 2 Melbourne, 2017, p 67.
22. G Samuel, Independent Review of the EPBC Act — Final Report, Department of Agriculture, Water and the Environment, Canberra, October 2020, pp 2–5.
23. Department of Climate Change, Energy, the Environment and Water, Nature Positive Plan: better for the environment, better for business, Australian Government, Canberra, 2022, p 19.
24. C Hamilton, “Ignored by the government, shrunk by resignations — where now for Australia’s Climate Change Authority?” The Conversation, accessed online 11 September 2015 at https://theconversation.com/ignored-by-the-government- shrunk-by-resignations-where-now-for-australias-climate-change-authority-47366.
25. A Henderson, “Clean Energy Finance Corporation: Tony Abbott defends decision to axe wind, solar from renewables spend- ing”, ABC Online 13 July 2015, at www.abc.net.au/news/2015- 07-13/pm-defends-decision-to-axe-wind,-solar-from-cefc- spending/6615372.
26. M Sansom, “ARENA: the renewable energy agency that just won’t die . . .”, Government News, online 8 December 2014, at www.governmentnews.com.au/cormann-cant-kill-arena/.