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Stretching the green tape

· Catriona McNaughton,Environment,Regulation,SDGs,Analysis

In the COVID-19 environment, few would argue against proposals that support jobs growth and economic recovery. Many would suggest that if there is ever a time where it is okay to stretch the environmental green tape around projects with direct job creation potential, it would be now. The issue is, if you do not have much green tape to start with, then you do not have the environmental credit required that will mean such stretching is not devastating.


The independent review of the Environment Protection and Biodiversity Conservation Act 1999, completed late in 2020 and released in January this year, is required every 10 years. The opening lines of the report’s key messages read:


“Australia’s natural environment and iconic places are in an overall state of decline and are under increasing threat. The environment is not sufficiently resilient to withstand current, emerging or future threats, including climate change.”


Of course, outside of the scope of the review, although with ironic timing, is the consideration of the ability of the environment to withstand a reduction in environmental protections because of some other need. In this case, the resilience of the environment to short term intervention to support jobs or other growth. Not only does Australia not have this capacity built, but it was already sacrificing the environment in a time of economic plenty.


Globally, Australia is ranked 37 out of 166 countries in terms of performance towards achieving the Sustainable Development Goals (SDGs) with many trends, particularly related to health, wellbeing, gender equality, work and economic growth improving. However, when rated on each SDG Australia remains ‘in the red’ on key environment focused indicators including responsible consumption and production, action on climate change and affordable and clean energy and has an orange rating for life of land and life below water. With Australia’s economy so dependent on natural resources, and future liveability so dependent on managing climate change risks (particularly bushfire and coastal erosion/flooding), the need to protect natural assets should be paramount.


Rather than waiting for the review to be delivered in October 2020 to make any decisions about next steps, the Federal Minister for Environment, Sussan Ley, introduced an amendment Bill in August 2020. The amendment seeks to streamline approvals by devolving Federal responsibility to state and territory governments. This arrangement is in fact, in a way, recommended by the independent review because it would allow for “single-touch” environmental approvals which would add clarity for developers. The key difference here is in the proposed execution of this recommendation compared to the Bill; the review recommends devolving activity but not ultimate responsibility. Under the framework proposed by the review, the activity of environmental approvals is devolved to the states but underpinned by “legally enforceable National Environmental Standards” and subject to “oversight by the Commonwealth”. The Government’s Bill does not take this approach and while they continue to try to pass the Bill, currently before the Senate, it looks likely that the cross benches will seek the Government’s response to the independent review before progressing.


The streamlining of environmental approvals is one of 38 recommendations for reform of the Act separated into both themes and priority and outlined in a reform pathway including “substantial legislative changes”. The need for National Environmental Standards is the clearest and most fundamental part of this approach recommended to be started immediately, while the broader reform (when outlined in October) was recommended to be completed by 2022. The urgency of the matter is of course heightened by the need to progress developments to support jobs growth in response to COVID-19. Rather than delay this core reform, for a piecemeal approach to streamlining approvals, the COVID-19 crisis demonstrates the need to get this type of reform right, to develop framework that will support business certainty well into the future, but more importantly will also build our environmental resilience to respond to future crises. Had we done this years ago, we would have scope to respond to COVID-19 by relaxing some requirements (or speeding up planning approvals) where we know we have capacity to cope, without environmental catastrophe.


The current government appears unlikely to take a holistic approach to implementing the reforms outlined in the review, which is disappointing not only because it would achieve many of the government’s own aims, but because it would establish more modern legislation that is better able to adapt to our current and future challenges, provide greater certainty to developers and better balance the role of State Government in enabling development where appropriate, without losing the Federal accountability. The fundamental changes to life and work through the COVID-19 crisis have shown us our inability to see the future, and without significant reform now, we can only guess at the state of our environment by the next statutory review in 2029.

Catriona McNaughton is Manager - Communications at FPL Advisory.

FPL Advisory is a team of specialists resolving risks and creating opportunities with respect to government. We work with public sector and corporate clients to execute strategies for owning and managing change.