Can Labor reform Australia's environment laws? | Insiders On Background

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Speaker 1 Well, how is it possible to both save the environment while also speeding up decisions on housing, mining and energy projects?

Speaker 1 Well, the Environment Minister, Murray Watt, reckons he's found the answer. The government tried unsuccessfully before the last election to fix the nation's environment laws.

Speaker 1 There was backlash from the West Australian Labor government at the time as well as others.

Speaker 1 This time around though, Senator Watt is confident that he will be able to pass this with either support from the Coalition on the one hand or the Greens on the other.

Speaker 1 Someone who's been watching this issue very closely and has argued that fixing our environment laws would be perhaps the single most effective thing we could do to boost productivity in Australia is the former Treasury boss Ken Henry.

Speaker 1 So I'm keen to find out what he thinks about where the government has now landed as it introduces this legislation and hopes to have it passed by the end of the year. I'm David Spears.

Speaker 1 I'm Nunnawall Country at Parliament House in Canberra. Welcome to Insiders on Background.

Speaker 1 Ken Henry, thanks so much for joining us this afternoon. Pleasure to be with you.
As mentioned, you have argued that we've got to fix these environment laws.

Speaker 1 They're holding up housing, they're holding up the renewables rollout, all sorts of things.

Speaker 1 Having a, I guess, a brief look at what the government has put forward in a fairly weighty tome of legislation. What do you think?

Speaker 2 What's your initial impression? Well, it is a weighty tome. I mean, that is true.

Speaker 2 I think it's 1,400 pages of legislation, isn't it? So there is a bit to wade through, and

Speaker 2 it has some complexity. Necessarily so, though.

Speaker 2 That's not a cheap shot. It's necessarily complex.

Speaker 2 On the other hand, I would say that it really does give Parliament something to work with.

Speaker 2 And I think it is feasible for the Parliament, provided there's sufficient goodwill, it is feasible for the Parliament to deal with this piece of legislation in three weeks.

Speaker 2 It's a piece of legislation that I think faithfully delivers what was called for by Professor Graham Samuel when he wrote his review of the EPBC Act five years ago.

Speaker 2 Now, bear in mind, that was not the first review of the operation of the EPBC Act. There was reviews before that,

Speaker 2 five years before, for example, which found, like Graham did, that the laws were not working.

Speaker 2 So we've known for a very long time now, in fact I would say we've known for 15 years now, that the laws have not been working to protect the environment. Now at the same time

Speaker 2 we've had an acceleration

Speaker 2 in project approvals processes or at least projects in the pipeline, many of which

Speaker 2 people know to be absolutely critical to Australia's future. So for example, renewable energy projects, right?

Speaker 2 And these projects,

Speaker 2 many of them now, are

Speaker 2 sitting in the queue

Speaker 2 for as much as nine years before they get through the approvals process, just because of the

Speaker 2 complexity and the overlapping of

Speaker 2 Commonwealth and state laws and local planning laws and so on.

Speaker 2 And so, in the time that the EPBC Act has been in existence,

Speaker 2 the environment has continued to be degraded.

Speaker 2 We're feeling that, Australians are feeling that more and more

Speaker 2 each year.

Speaker 2 And projects locked in the approvals processes have just been building and building and building.

Speaker 1 So when we look at what's been put on the table here, one of the most contentious elements is this ministerial override power, right? So where

Speaker 1 you go through the process, the speedier process presumably of making a decision

Speaker 1 and if a project is knocked back, the minister in rare circumstances we're told would be able to come in and say actually no, it's going to go ahead. What do you think?

Speaker 1 Is it appropriate? Do we need that sort of ministerial override?

Speaker 2 There's necessarily a dissonance in this, right?

Speaker 2 Because the whole point of the environmental standards which this piece of legislation will enable the minister to develop and to declare, the whole point of those environmental standards is to ensure that matters of national environmental significance are protected.

Speaker 2 That's the whole point of them, right?

Speaker 2 That is, they are to operate in the national interest. In favour of the environment.

Speaker 1 Keeping politics out of the way. Yeah,

Speaker 2 that's right.

Speaker 2 And yet the minister has felt, and he obviously understands that and obviously feels quite strongly about the need to develop environmental standards that really do protect the environment in the national interest.

Speaker 2 But at the same time, I think he's being pragmatic. I think he's saying, look,

Speaker 2 I do understand that there might be, might be, not necessarily will be, but might be, occasions in the future in which either me or somebody sitting in my chair is going to have to feel the need to override those standards, again, in the national interest.

Speaker 2 Obviously, not in the national environmental interest, but in order to pursue some other national

Speaker 1 defence or national security matters.

Speaker 2 So, those he has identified.

Speaker 2 What he's not identified yet,

Speaker 2 and maybe he will have to before the legislation is passed, I don't know, but what he has not identified yet is those things that he would not regard as having sufficient importance in the national interest to override those national environmental standards.

Speaker 1 And do you think that does need to be clarified or codified here?

Speaker 2 What is... I'm not sure.
To be honest with you, I'm not sure. I mean, one way of doing it would be to codify, right? Would be to say, well, fossil fuel projects, forget about it.

Speaker 2 You're never going to have a fossil fuel project which is so clearly in the national interest that it's going to override one of my national environmental standards, right? So

Speaker 2 that is one approach that we can...

Speaker 1 Would that make sense? Would that make sense, do you think, to say a coal or a gas project? You can't weigh in as the minister and say...

Speaker 2 I think that's a live option.

Speaker 2 I think that is a live option.

Speaker 2 I wouldn't be surprised if during this parliamentary process he doesn't find himself having to ask that question of himself. Is this really a sensible thing to do? I wouldn't be at all surprised.

Speaker 2 The alternative, of course, is that we wait until we see what the practice is, right?

Speaker 2 So that, and it may be that the legislation is passed as it's drafted.

Speaker 2 Maybe three years from now we could have this conversation again and we could, you know, we could we could figure out whether the legislation is actually operating in the way that you and I might expect.

Speaker 2 And that is to say say that there may well have been national interest overrides, but they've been truly exceptional and everybody could understand why it would be a reasonable thing for the minister to override his own standards.

Speaker 1 There's the example there of fossil fuel projects, coal and gas, and maybe there shouldn't be any ability for the minister to come in and let them go ahead.

Speaker 1 What about rare earths mines or

Speaker 1 the sort of critical minerals projects that maybe there's a defence link there that could be made.

Speaker 2 And that would have to be established at the time, right? And I don't think, you know, in my mind,

Speaker 2 it wouldn't be enough to establish that there is a relationship to defence.

Speaker 2 You know, I mean...

Speaker 2 It's too broad. It's too broad.
Yeah, right. I mean, I would think that

Speaker 2 if we're talking about matters affecting national security, you're talking about the threat of imminent attack or something of that nature, something with that gravity.

Speaker 2 You're not just talking about building more kits

Speaker 2 for

Speaker 2 defence.

Speaker 1 It sounds like you think it it needs to be a bit more specific.

Speaker 2 I think so. Yeah.
And so the specificity, the increased specificity, comes either through the legislation itself or through practice, right?

Speaker 2 Now,

Speaker 2 introducing it, having it through the legislation gives people more certainty. On the other hand,

Speaker 2 you might find that you've overly constrained yourself. You might find that.

Speaker 1 That's the act to you.

Speaker 1 And I guess if it's not in legislation, we're being asked to trust not just this minister, but a future minister for the environment and how they're going to apply it yeah and so that is that is

Speaker 2 a

Speaker 2 a piece of commentary that could be applied to many sections of this legislation right there is a lot that this legislation leaves to the development of

Speaker 2 legislative instruments, standards, rulings, guidance and all sorts of things.

Speaker 1 Including those national environmental standards.

Speaker 2 Yeah, including the national environmental standards, right?

Speaker 2 And

Speaker 2 so, I mean, that's not all that unusual. It does happen in other areas of legislation, but there is obviously going to be intense scrutiny on how this all plays out, as there should be.

Speaker 1 Those standards will come after the law has passed.

Speaker 1 But there at the moment, I don't think going to be written into legislation.

Speaker 2 Would there be a case to do that?

Speaker 1 to write those standards into legislation down the track?

Speaker 2 There may be, you know.

Speaker 2 It's quite conceivable, I think, that we get to the point where in some years' time,

Speaker 2 when we've seen those standards and see how those standards operate, that the Parliament thinks,

Speaker 2 well, we might as well write these into law to give them further protection.

Speaker 2 That's possible.

Speaker 1 What do you think about the climate impacts here? As many environmental groups point out, the biggest threat to the environment is climate change.

Speaker 1 The Minister is adamant, though, there will be no climate trigger, as in

Speaker 1 a project can't be knocked out because of its emissions profile. It will still have to be transparent around what that emissions profile is going to be.

Speaker 1 That gets dealt with under what's called the safeguards mechanism separately. Is this the right balance?

Speaker 2 It's probably the only way to deal with it.

Speaker 2 And,

Speaker 2 I mean, obviously, climate and nature protection and nature repair are related, and they're very, very closely related. Scientifically, they're very closely related.

Speaker 2 Politically, not so much, which is interesting, right? But scientifically, they are.

Speaker 2 At some point in the future, these two pieces of policy, these two blocks of policy, are going to have to be merged, fused together somehow.

Speaker 2 And to understand why that is necessary, just consider this, right? That according to the Climate Change Authority's projections released as part of their

Speaker 2 pathways review, net zero pathways review, or sectoral pathways review, they've revealed that in their mind, in order for Australia to achieve net zero by 2050,

Speaker 2 the Australian landscape is going to have to sequester, draw out of the atmosphere about two and a half times as much carbon each year as it presently draws out of the atmosphere. Right?

Speaker 2 Now think about that. So that's not going to happen if we continue to trash the environment, if we continue to engage in land clearing.

Speaker 1 We're just not going to hit these targets.

Speaker 2 We're not going to hit the targets. But more than that,

Speaker 2 It has to be two and a half times as much as the landscape is presently sequestering. That means

Speaker 2 we're necessarily going to have to plant more vegetation and a lot of it.

Speaker 2 And the way in which that's done will have profound implications for the state of the natural environment.

Speaker 1 Right? Well that and that could be done in a good way.

Speaker 2 Could be done in a disastrous way.

Speaker 1 That brings us to what this bill, what this proposed law does when it comes to deforestation and land clearing as well. Does it do enough?

Speaker 2 No.

Speaker 2 No, it doesn't. Not in and of itself.
It doesn't do enough to deal with deforestation.

Speaker 2 There are two big exemptions that

Speaker 2 deforestation as a practice benefits from under existing law.

Speaker 2 The first relates to something called continuous practice, where there's just

Speaker 2 essentially an exemption.

Speaker 2 from the application of the law in respect of deforestation activities.

Speaker 2 that has to be dealt with. The continuous practice exemption has to be dealt with.
The other one,

Speaker 2 which is even easier to get your head around, I think, or at least for me to get my head around, is that when the regional forest agreements were negotiated decades ago,

Speaker 2 they were negotiated in such a way that the EPBC Act does not apply to regional forest agreements. Now,

Speaker 2 I think

Speaker 2 everybody now surely accepts that if we're going to halt and reverse the decline of nature and biodiversity in Australia,

Speaker 2 we're going to have to

Speaker 2 get rid of that exemption for regional forest agreements because that's where the rich biodiversity is. That's where you find it.
You find it in forests, unsurprisingly.

Speaker 2 Those forests have to be protected. If those forests are not being protected by the federal government's environment laws, then you'd have to wonder why bother with environment laws at all, right?

Speaker 2 I mean, you've got to preserve and enhance the best stuff that remains and that has to start with the forest. So that exemption has to be removed.
Now...

Speaker 1 And what would that mean in practice?

Speaker 1 If it's environment law, the federal environment law did apply to those regional forest agreements, would that make a meaningful difference, do you think, to deforestation?

Speaker 2 So in some places, yes, and in other places, no.

Speaker 2 And the reason for that, and it might sound a bit counterintuitive, in those places where it wouldn't make a difference, it's because the forest is already so badly trashed that there's no matter of national environmental significance left After left.

Speaker 2 Yeah, I mean, true, but you know, terrible, but true. In others, though,

Speaker 2 particularly forests that provide habitat for koala and for greater gliders and for other threatened species like lead-vet is possum and so on, then it's very easy to see a case for the protection of those forests.

Speaker 2 And it's very easy to see how removing an exemption for regional forest agreements would do a great deal, would go a long way to

Speaker 2 protecting the environmental values that are left.

Speaker 1 The Minister seems to to be suggesting this could come up in the standards, the national environmental standards that will follow the law. You're saying though this really needs to be in the law.

Speaker 2 Well no I don't I don't know that it does David. I don't know that it does need to be in the law.

Speaker 2 I think it would be sufficient for it to be in a standard provided that standard is developed in an open transparent way in consultation with

Speaker 2 interested stakeholder groups. So that includes obviously the environmental NGOs.

Speaker 1 So this pathway could still get to the right it could still get right

Speaker 2 absolutely it could. Now bear in mind that

Speaker 2 most

Speaker 2 governments around Australia understand that forestry is on the way out. I'm talking about native forest logging.

Speaker 2 I'm not talking about plantation forestry. We need to plant a lot more plantations for housing if for no other reason, right? We do need to do that.

Speaker 2 But as far as native forest logging is concerned, governments around the country

Speaker 2 now generally accept that this is the last generation of Australians that's going to see this activity.

Speaker 2 And already the West Australian government and the Victorian government just in recent years have declared an end to native forest logging.

Speaker 2 The two holdout states right now are New South Wales and Tasmania, and essentially for political reasons.

Speaker 2 Now, the New South Wales government has declared recently the Great Koala National Park, but in declaring the Great Koala National Park, which is 176,000 hectares of national park in the northern part of the state,

Speaker 2 they have announced a moratorium on logging for 12 months.

Speaker 2 Not an end, a moratorium. But the reason they've done that,

Speaker 2 there's a very positive side to this story. The reason they've done that is because they understand

Speaker 2 that

Speaker 2 in order for that national park to be financially sustainable, they have to find a source of revenue to support it and they're looking at carbon credits, right?

Speaker 2 And we, the organisation that I chair, the Australian Climate and Biodiversity Foundation, we've been working on the development of such a carbon credit for a few years now.

Speaker 2 It's presently before IRAC, the Emissions Reduction

Speaker 2 Committee,

Speaker 2 that

Speaker 2 the federal government relies on for advice with respect to carbon credits.

Speaker 2 I expect that it will be issued shortly for public consultation. If that carbon credit then becomes available, then the New South Wales Government has a source of revenue, a new source of revenue

Speaker 2 and a viable future for that forest, right? It doesn't have to levy taxes on taxpayers, higher stamp duties on houses or whatever it is, in order to fund the protection of that forest.

Speaker 2 It can do it through carbon credits. And

Speaker 2 that would be

Speaker 2 a future or present a future for the forest that is both environmentally and financially sustainable, right?

Speaker 2 And of course, once the Great Koala National Park is done, why wouldn't you do the rest of the National Forest Estate, well sorry, the native forest estate in New South Wales?

Speaker 2 It would make sense to do so.

Speaker 2 And so we have the opportunity now, and the New South Wales government is ahead of the other state governments in thinking this one through, but we do have the opportunity now to think about redesigning markets in Australia, redesigning the economic system in such a way that it actually

Speaker 2 leads to the protection and restoration of nature. And that, too, going back to your earlier question, that does, that's an example that brings together climate policy with environmental policy.

Speaker 1 And speaking of the Commonwealth and the state,

Speaker 1 and at the moment,

Speaker 1 coming back to your earlier point about how long approvals often take, it's the duplication of having to go through a state approval and a federal approval.

Speaker 1 One of the aims here is to have a bilateral agreement between the Commonwealth and individual states. They can just do a one-stop approval, taking into account what both need.

Speaker 1 Does this worry you at all when it comes to, let's say, the Browse Basin gas field off the coast of WA?

Speaker 1 If that approval were to sit with the WA government, would that worry you?

Speaker 2 Does it worry me? It worries the hell out of me, right?

Speaker 2 Yeah, I'm worried, but

Speaker 2 I don't see an alternative, right? I mean, I think, look, there's really two reasons for

Speaker 2 the increasing time taken to get project approvals. So the first is that you've just got two levels of government involved, right? And that's quite straightforward.

Speaker 2 But the other reason is that the existing laws are uncertain, highly uncertain. The legislation does not contain sufficient guidance to decision makers, right?

Speaker 2 And so everything can be contested and argued out for years and years. And that is what happens.
And

Speaker 2 so the minister, through the legislation, and also then through the standards and then also through the development of bilateral agreements with state governments gets the opportunity to clarify all of that as well.

Speaker 2 And that in and of itself would speed up or should speed up approvals processes. None of that policy infrastructure presently exists.
It's all missing.

Speaker 2 But yeah,

Speaker 2 in order for

Speaker 2 For me to feel comfortable with the West Australian Government's administration of the Biodiversity Conservation Act, I would want to see all of that, right?

Speaker 1 But we're not going to see that before this law passes.

Speaker 2 We won't see this before the law passes. No, we won't.

Speaker 1 But you're saying that's just

Speaker 1 necessary.

Speaker 2 I think it's how it has to be. Yeah.

Speaker 2 I think it's...

Speaker 1 Even if it could lead to a greater chance of big gas projects like that being approved.

Speaker 2 I don't think anybody, even the Western Australian government, would imagine that outcome. And I don't imagine that outcome.

Speaker 1 Of approving that sort of gas build.

Speaker 2 No, I just don't.

Speaker 1 What about a Queensland government approving coal mine expansions?

Speaker 2 So the question is: I mean, what we're talking about here is

Speaker 2 projects that impact matters of national and environmental significance. That's what we're talking about, because that's the ambit of application of the EPBC Act.

Speaker 2 It doesn't extend to everything, it doesn't cover everything. But if you're talking about

Speaker 2 a gas project in Western Australia that damages a matter of national environmental significance,

Speaker 2 you know,

Speaker 2 if the accreditation of the West Australian Government leads to that outcome, then the legislation just, you might as well tear it up. It just lacks integrity, right? So we know that.

Speaker 2 Similarly, in Queensland, if the Queensland Government were to approve a

Speaker 2 new coal project, which did

Speaker 2 unacceptable damage to a matter of national environmental significance in the state of Queensland, again, you'd have to say you might as well tear the legislation up. It just lacks integrity.

Speaker 1 Bottom line, it sounds like you're saying we are going to have to put a lot of trust trust in the minister when it comes to all of this.

Speaker 1 But that's where we're at.

Speaker 2 Yeah, that is where we're at. It's got to be.

Speaker 2 It's the only pathway we've got in front of us.

Speaker 2 And

Speaker 2 maybe it's just the way that it has to be.

Speaker 2 Maybe it's not even possible to conceive of an alternative pathway, but certainly there's not one in front of us.

Speaker 1 And your advice to I guess all sides weighing this, move quickly on this or take some time?

Speaker 2 I'd say the quicker we do it, the better, right?

Speaker 2 It's not,

Speaker 2 as we've discussed, it's not so much the legislation that's going to drive all these important things, it's what comes next.

Speaker 2 Let's get to the what comes next.

Speaker 1 State agreements, yeah.

Speaker 2 Exactly, and let's get to that as soon as we can.

Speaker 1 All right, well, are you confident though, bottom line, that this will deliver better environment outcomes and better productivity outcomes for the economy?

Speaker 2 Yes, I am, yeah. I think that despite all the political posturing, which you know is is not at all unusual, it's what we see on the introduction of almost any piece of legislation.

Speaker 2 Despite all that, in the discussions that I've had with politicians from various political parties, there is actually a lot of goodwill.

Speaker 2 It's a lot of understanding that the present system's not working.

Speaker 2 And I don't think anybody has any better idea of how to improve things.

Speaker 1 And coming back to the productivity roundtable that was held in August, you were part of it. This was pretty clear coming out of that.
It was very clear. Everyone wanted this.

Speaker 2 Everybody sitting around that table said this is the first thing that should be done. It's the most obvious thing to do, and it should be done.

Speaker 1 So, if this doesn't happen, do we look back at that productivity roundtable and scratch our heads and think,

Speaker 2 what was that all about? Well, yes. We do a lot of other things as well, right? But that is one thing I'd be doing is saying, what the hell was that all about?

Speaker 2 But actually, you know, that productivity roundtable was

Speaker 2 at the time,

Speaker 2 it seemed to me to be be a really important moment in

Speaker 2 Australian policy. We had people from

Speaker 2 very different sectors of the economy, society, environmental people saying, yeah, we've got to do this.

Speaker 2 And not just this, there was agreement on a lot of other things as well.

Speaker 1 And what are we two or three months on?

Speaker 1 Do you still think it was a worthwhile exercise?

Speaker 2 Yeah, I do. I do.
I would have expected to see a little more concrete policy development by now, but that could be unfair.

Speaker 2 And if I'm thinking of it, if I were to put myself in the shoes of the Treasurer, I'd be thinking about how do I use it to develop policy to take to the next election, right?

Speaker 2 And that's still some time away.

Speaker 1 And it would be remiss of me not to ask you about the big economic news this week. Inflation's jumped.

Speaker 1 Big question for the government, I suppose. Do they extend this energy rebate again beyond December?

Speaker 2 What do you reckon? You can't keep rebates going forever.

Speaker 2 I mean, you know, the cost of living issues are real, and you can understand governments wanting to be seen to be responsive to the needs of the electorate particularly those who are finding it hard to make ends meet you can understand that but on the other hand if you have to provide a

Speaker 2 permanent or semi-permanent rebate for something then you're saying that your policy settings are wrong you know your energy policy settings are wrong there's just something else that's that's not working or maybe you've got to completely redesign your income support systems or whatever you can't you can't have these quick fixes become permanent ken Henry, always good to talk to you.

Speaker 1 Thanks so much for

Speaker 1 your take, our take on these environment laws.

Speaker 2 Thank you. Pleasure.

Speaker 1 And if you have any thoughts on this conversation, do drop us a line: insiders at abc.net.au. We'll have more on this on Sunday.
I'll be joined by the Environment Minister, Murray Watt.

Speaker 1 Hope you can join us then for Insiders 9 a.m. on ABC TV.

Speaker 2 You're making us all feel very excited about being here.