Julian Hill (Bruce, Australian Labor Party) Share this | Hansard source

I have been on chamber duty listening to a few of the contributions of government members. I have to say: you can't disagree with the majority of them, because they faithfully recite all the stuff the Samuel report has said predominantly. The fundamental problem—this is why this is so disappointing—in looking at the detail of this legislation, the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021, is that it doesn't properly respond to what was in the Samuel report. When you look at the government's whole package of responses, such as they are today, they do not implement what's in the Samuel report. It is kind of word association.

I will say at the outset—I will make a few introductory remarks—that this is a critically important law. The EPBC Act is meant to be the national law which protects and enhances the environment and which regulates development or changes in nationally significant environmental places through the environmental assessment process. Three stages are: referring things to the Commonwealth minister to decide if a formal assessment is needed; if so, then a formal assessment based on the act and the regulations and then approval—in theory approval or rejection, or approval with conditions more often than not

I was a bit of a sceptic about the Samuel review. It was probably last year that I actually picked it up and spent a bit of time reading it. I was a healthy sceptic I suppose when you look at what I perceive to be this government and the Liberal Party's record on environmental protection. We hear the same rhetoric over and over again, that it doesn't have to be a trade-off between the economy and the environment. The previous speaker quoted the member for Hunter. I agree with the member for Hunter's sentiments. It's hard to disagree with that. You do need to find ways to do both. It's called sustainable development. It's not a new concept. The problem is when you actually look at what the government does too often they don't protect the environment. They only take one part of the equation. So I was a sceptic when I looked at the report. But I compliment Graeme Samuel on this work. It is a really robust bit of work. It's persuasive and it's convincing, in my view, and, indeed, it's sometimes challenging given the Labor Party's long-standing concern around large-scale devolution of decision-making powers to states and territories. It sets up what I think personally—this is not necessarily party policy—is a pretty compelling framework, which we've said we're open to considering in its entirety.

The review was pretty damning on the performance of the EPBC Act. It said it's ineffective, it needs fundamental reform, it's not fit to address current or future environmental challenges. There's no community trust, there's no trust from traditional owners across the country in the act and overall—my words—it's obsessed with process, not with actual environmental outcomes. That was a key takeout right through the report. It said that there's also no evidence that the environment actually gets any better with the administration of this act, particularly after eight years of this government. The report states:

The EPBC Act does not facilitate the maintenance or restoration of the environment. The current settings cannot halt the trajectory of environmental decline—

let alone reverse it.

That government's response has been lacklustre—lacklustre is an understatement. There was an interim report which broadly recommended two things: national environmental standards and an independent environmental regulator. The government's response was to say: 'We will do some national environmental standards. We'll reject the independent environmental regulator and we'll just charge ahead regardless with delegating decision-making powers to the states and territories,' so on they marched. The companion to this, if you like, the flawed bill, is still stuck in the Senate where I hope it will die, because what these two bills do together—they're linked to the Samuel review. The government's pretending they're implementing the Samuel review but they're really just resurrecting Tony Abbott's failed one-stop-shop approach, which was an agenda to weaken environmental protection. Then, regardless, the government was kind of doing its thing over there, which they were always going to do anyway it seems.

The final report had 38 recommendations proposing reform in three tranches. Importantly, there was a warning. It should have come with big red letters. It should have had its own page. It was pretty clear language:

Governments should avoid the temptation to cherry pick from a highly interconnected suite of recommendations.

That was a key warning in the Samuel reviews report. 'Do not cherrypick and just pick the bits you like, because it won't actually implement reform the improve environmental outcomes.' The four key components, as I would describe them, included national environmental standards that have to be legally enforceable, binding, focused on outcomes and actually requiring and generating improvements to environmental outcomes, not just more paperwork and process. This bill, shamefully, is on track to implement weak standards, even weaker than were proposed in the Samuel review, as the draft standards—which was illustrative. They weren't meant to be the things adopted, but if they get this legislation through the government's going to try to implement the same weak standards as Tony Abbott proposed in 2014.

The second aspect to accredit states and territories for decisions with safeguards, as the Samuel review said, would include formal independent checks and an accreditation process, not just a delegation process—a really important difference—and it would be subject to parliamentary disallowance, so really tough scrutiny from both houses of the Commonwealth parliament on any decisions or delegated decision-making framework given to the states and territories. That's really important. This stuff is really risky for the Commonwealth parliament to give away. I've heard some of the other contributions to this debate, but I believe the Australian people do expect the Australian government and the parliament to actually take responsibility for matters of national environmental significance, not just to say, 'We're a federation and we'll just delegate all of that to the states and territories, not worry about the outcomes and not keep an eye on what they're doing.' I think this is really important.

I understand the pressures. I think the report talks about the pressures, and many stakeholder submissions bagging and opposing this bill talk very clearly about the different pressures that state and territory governments are quite rightly under. They have a more direct responsibility for economic development and a more direct set of stakeholders, frankly—planners and developers and the like—pushing for approvals. I used to work in both the state planning department and the state environmental department in Victoria, and we dealt with these things. I fully agree with the criticisms that Professor Samuel made. It is an act, in the way it's regulated downstream, that is obsessed with pieces of paper, process and procedure, not with actually looking at outcomes. But those pressures on state and territory governments are immense, and they're not things that the Commonwealth feels day to day. It's a really important reason for the parliament to understand that we should not be rushing to give away decision-making powers to states and territories without making sure that all the other bits of the equation are right: a tough cop on the beat, tough environmental standards and tough oversight of the whole system.

Importantly, No. 3, the Commonwealth environment minister has to retain the intervention power and responsibility for national environmental outcomes. Fourthly, strong audit and oversight through an Environmental Assurance Commissioner will give us confidence that decision-makers—states, territories, whoever—are adhering to standard and bilateral accreditation arrangements. It was an integrated package of reform. I'll say again: the warning that came with this set of proposals was, 'Do not cherrypick.' You can't choose just the bits you like and that you developer mates that the government may be listening to say are necessary. It's shocking that there's still no comprehensive response to the 38 recommendations. The government's rushed ahead now with two bits of legislation, but they still haven't actually responded to the 38 recommendations that were in the Samuel review. The government's legislation is not consistent with the Samuel review. As I said, as other members have said and as submitters have said, they're dredging up the Abbott government's old proposals which died in the Senate. They were weak and, importantly, things like the environmental standards that are being proposed are not disallowable. If this bill passed and the government got their way, they'll put in place these weak environmental standards that will be there for at least two years and that the parliament can't disallow, and then they'll say to the states and territories, 'Off you go,' with no independent oversight that's actually tough enough to keep an eye on what they're doing. It's a really dangerous recipe. I think that, if the public really understood the detail here, there would be no community support for this.

The shadow minister's rightly said that Labor's open-minded. We will consider real implementation of the Samuel review and, as I said, there are aspects of that which are challenging for some of us on this side of the House. That's a conversation we're prepared to have if it's done as a package, not as a cherrypicked set of little bits that the government happens to like. We need tough national standards, a tough cop on the beat. The government's proposal has no real powers, no real teeth. It has just an audit review function, but no ability to scrutinise or examine individual decisions. As some members have pointed out, I'd say that, importantly, a big part of any serious set of reforms has to be to fix the capability and capacity of the Commonwealth environment department. Graeme Samuel was clear that the Commonwealth minister has to retain, even if the government got its way, the ability to intervene, and that means the Commonwealth environment department has to lift its game massively on its ability to process referrals and maintain that professional capability. Only then could Australia consider, in my view, large-scale devolution of these decision-making powers to the states and territories.

The only way to describe the action of the Commonwealth environment department is eight years of neglect, cuts and disasters. Now we see the hypocrisy of the government claiming with a straight face, as some government members have tried to do: 'We need these reforms because decisions are too slow. Industry is telling us that decisions are too slow in the Commonwealth environment department—green tape.' Well, it's their failures, their delays and their decisions. They've been in government for eight years. It's their failure to make these decisions, which are, in many cases, as people quite rightly point out, leading to delays in jobs and investments being made.

But it should be no surprise; when the government came to office eight long years ago they cut 40 per cent of the funding from the Commonwealth environment department, they cut thousands of the public servants from that department, including the many who are supposed to make these decisions, and then they scream, 'Shock! Horror! The decisions are taking longer.'

I just want to make a couple of remarks about the recent Australian National Audit Office report. It's shocking. I'm the deputy chair of the audit committee, I do look through just about all the audit reports which the Auditor-General tables, and this is a shocker. You can hardly find a single positive or even slightly nice sentence in the report. The frustration of the Auditor-General shone through—95 per cent of decisions are made late or outside the statutory time frame and 79 per cent are noncompliant or affected by error. In 2013, when the government was elected, on average decisions were made about 19 days late. It was 19 days when Labor left office. Now, on average, it's 106 days late, and somehow, therefore, the answer is: 'Oh well. We give up. We'll give it all to the states and territories with weak standards.' That's not good enough. Even under this package, we have to be assured that the Commonwealth department has the capability and the capacity to make these decisions and make them in a timely way, because that's what the public expect.

I might just read a couple of bits of the audit report while I'm at it. I'll just draw a contention. I'll quote from the Auditor-General:

Despite being subject to multiple reviews, audits and parliamentary inquiries since the commencement of the Act, the Department of Agriculture, Water and the Environment's administration of referrals, assessments and approvals of controlled actions under the EPBC Act is not effective.

  …   …   …

Referrals and assessments are not administered effectively or efficiently. Regulation is not supported by appropriate systems and processes, including an appropriate quality assurance framework.

  …   …   …

The department is unable to demonstrate that conditions of approval are appropriate. The implementation of conditions is not assessed with rigour.

  …   …   …

The department does not have an appropriate strategy to manage its compliance intelligence—

It's not good.

Conflicts of interest are not managed.

This is a good one. This is a good trick the government does when their performance is falling off a cliff. They actually just take out the performance measures. They just cancel them! It's like vaccines: 'It's off-track, so we'll just stop the targets. We'll just give up. We don't have any aim anymore. We're just going to bumble along and do what we can and hope for the best.' The Auditor-General said:

All relevant performance measures in the department's corporate plan were removed in 2019-20, and no internal performance measures relating to effectiveness or efficiency have been established.

  …   …   …

Systems and processes for referrals and assessments do not fully support the achievement of requirements under the EPBC Act.

That is, they're not properly complying with the law! Proxy indicators—the ANAO went and developed their own indicators, and back applied them with the data, and said: Actually 'the efficiency of referrals and assessments has not improved over recent years.' As I said, everything is just running late. It's no surprise, it is? When you cut 40 per cent of funding from the environment department that things slow down. Who knew!

In summary, the government has tacitly acknowledged the enormous mess that they've created, because last year they gave the environment department $25 million. It was a big announcement, 'Oh, look! We're going to give the department some money to clear the backlog that we created because we cut the budget.' What a brilliant set of geniuses! As the Audit Office said to me though, 'From our perspective, that just looks like they're at great risk of hurrying up their mistakes and making more bad decisions quickly with that $25 million, because they haven't actually made any of the fundamental changes.' So, in summary, I think it's a terrible situation.

The act doesn't protect or enhance the environment—it's obsessed by process. I think we can all agree on that. The government's made a total mess of the process, as the Auditor-General said, and has to actually fix the department's capability—but whether or not they do this! But the report that charts a credible way forward is being ignored by the government, who are pretending to implement it but just dragging out Tony Abbott's failed proposals, which would see environmental degradation continue and probably accelerate.

As many speakers have said, this should not be a choice between the environment or the economy. We should be able to have both; it's called sustainable development. I call on the government to withdraw this bill and sit down and actually come up with some legislation that implements their own review. If they did that, I'd be confident that it would meet with broad support.

See this speech in context