Missed Opportunities in New Environment Law

The most remarkable thing about the new Commonwealth environment legislation is the missed opportunities. While there are really two strands to the story about the passage of the Bill – the politics and the law – the failure to create a system that will adequately protect Australia’s environment in the coming century is a theme common to both.

The Environment Protection and Biodiversity Conservation Act 1999 represents the largest overhaul of Australia’s environment laws in more than 20 years. The deal struck between the Government and the Democrats to force this legislation through the Senate is fundamentally flawed, and dodges the hard issues that pose the major challenges to the Australian environment.

The splinter groups of the Australian environment movement that supported this deal have prioritised narrow interests over broad interests. These organisations, which tend to focus on the protection of endangered species, have failed to take account of bigger issues such as climate change, forest destruction, and land clearing.

This week, Greenpeace released an international report showing that the vast majority of the Great Barrier Reef will be dead in around 30 years unless projected levels of climate change are stopped. The ground-breaking scientific report by Sydney University’s Professor Ove Hoegh-Guldberg found increasingly warmer water temperatures contributed significantly to incidents of coral bleaching causing the massive degradation of reefs. The solution to the threat to the reef is to reduce the burning of fossil fuels – coal, oil and gas – and instead move to renewable energy sources such as wind and solar.

Australia already has a poor track record on the issue of climate change, and our international obligations agreed at Kyoto are under significant threat from a host of development projects with major greenhouse implications. These developments are proceeding with no strategic framework and no opportunity to assess their greenhouse impact. State governments are approving, and often promoting, a large number of projects with significant greenhouse implications, including the Stuart oil shale plant near Gladstone, adjacent to the Great Barrier Reef.. If all of these projects proceed, Australia will have no chance of meeting its Kyoto commitment. Astonishingly, the new Commonwealth legislation does nothing to address this.

Against this backdrop, why did the Democrats support a deal that did not include greenhouse implications? In fact, they supported Government action to defeat Labor’s proposed greenhouse amendment. Is it the case that in seeking to become a mainstream political force, the Democrats are jettisoning some of their environmental ideals? Or is it that they simply failed to take full advantage of their bargaining position, particularly in the tax negotiations?

Whatever the answer, the Democrats have two strikes against them in less than a month. The tax deal was the first. Despite winning some innovative concessions and extra money for environment spending, the bottom line was increased subsidies for fossil fuels. The burning of fossil fuels is the primary cause of global warming. Most other industrialised countries are increasing taxes on fossil fuels, yet somehow a political party that has professed to hold protection of the environment as one of its core values was willing to agree to this deal.

This first strike was compounded by the second – the deal to pass the Environment Protection and Biodiversity Conservation Act. Aside from the concerns outlined above, the Act has numerous other problems. The most fundamental of these is the underlying philosophy of handing environmental responsibility back to the States. For example, despite the improvements won by the Democrats, it would still be possible as a matter of law for a State government to approve a Franklin Dam or a sand-mine on Fraser Island without necessarily being in breach of an accredited management plan, bilateral agreement or the Act itself. In such circumstances, the Commonwealth would be powerless to intervene.

The legislation will also mean that construction of a nuclear power station will not be prohibited – or even subject to environmental assessment - under Commonwealth law. This loophole appears to be by error rather than design, a mistake that simply reflects the poor process, where the Democrats conducted negotiations with the government in secret and with no independent legal advice. With more than 500 amendments, the Democrats and Government then combined to rush the legislation through, silencing debate and preventing the Greens and ALP from introducing their amendments into the Senate.

By agreeing to the deal on the environment legislation, the Democrats and the groups that supported them have condemned Australians to an environmental protection regime that can be described as mediocre at best, and which relies on a heavy dose of "she’ll be right mate!" At the cusp of the millennium, this is simply not good enough. A new campaign – to overturn this legislation and replace it with something appropriate to the 21st century – must begin immediately.