Environmental governance failures in Australia: probing problems and seeking solutions

By Professor Rosemary Lyster, Professor Danielle Celermajer & Professor Emeritus Frank Stilwell

Australia, like many other parts of the world, has experienced numerous climate and environmental disasters in recent years. Now the 2021 State of Environment Report (SOE) tells us that urbanisation and land clearing, interacting with the global stresses of climate change, are exacerbating the declining environmental quality. Focusing on species and ecosystems, the SOE reports that nearly 70% of Australian threatened taxa are impacted and 60% of listed threatened species seriously affected. Since European colonisation, more than 100 Australian species listed under legislation have become extinct. The main threat to species is habitat loss and degradation, with land clearing a major factor in this decline.

Much of this has been legally permitted by State governments, while 93% of the 7.7 million hectares of habitat cleared between 2000 and 2017 was not referred to the Commonwealth Government for assessment under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

Analysis of the role of government in the deepening environmental crisis is essential in these circumstances. Careful consideration of legal, economic, ethical and political aspects is integral to establishing more sustainable arrangements.

Legal elements are important because, under the Constitution, the Commonwealth has only implied, not express, powers to regulate the environment, limiting it to introducing domestic laws that give effect to its legally binding international treaty obligations. But we have seen that, given the political will, the government can strengthen its role in environmental protection.

The Whitlam government did so five decades ago when it legislated to require all government Ministers to consider whether their decisions – taken under any Act – would impact on the environment and, if so, to call for an environmental impact assessment. However, in 1999, the Howard government replaced this legal requirement with the EPBC Act, under which the Commonwealth would only get involved with developments impacting Matters of National Environmental Significance – in other words, where Australia had international obligations.

Land clearing, forestry and climate change were deliberately not included as ‘triggers’ for Commonwealth action. The Howard government then entered into bilateral agreements with the States, allowing them to do the assessments. More recently, the Commonwealth government tried to divest itself even of its meagre responsibility to approve the developments.

Economic interests are clearly at issue in such matters, particularly powerful elites in the fossil fuel and agricultural sectors that have exerted strong influence on policy development. Economic ideologies are pervasive too. The reluctance of Australian governments to protect the environment is deeply embedded in the ideology of what used to be called ‘economic rationalism’, now considered the core component in neoliberalism. Mainstream economists of this inclination, based in neoclassical economic theory, have promulgated the belief that markets are the best drivers of wealth maximisation.

Government ‘intervention’ has a more tendentious role because it is said to impede individual people’s freedom to choose and to produce inefficient outcomes. Influenced by this ideology, Australian governments during the last decades have pursued policies of privatisation and deregulation in the name of ‘reducing the burden and cost of environmental regulation’. For example, the 2013 Coalition’s Policy to Boost Productivity and Reduce Regulation promised to save the Australian economy $1 billion per year by reducing ‘red and green tape’. In October 2016, the Senate established the Select Committee on Red Tape to identify specific areas that are particularly burdensome. It decided that its deregulatory focus would be environmental assessment and approvals. One of the terms of reference of the 2019 Samuel review of the EPBC Act was ‘making decisions simpler, including by reducing unnecessary regulatory burdens for Australians, businesses and governments’.

This approach has infused State, as well as Commonwealth, government policies. For example, in 2014, the New South Wales government appointed an Independent Biodiversity Legislation Review to make recommendations for, inter alia: ‘outsourcing; budget restraint; and measures to promote options for self-regulation.’ The Panel recommended an integrated package of amendments ‘to deliver on the NSW Government’s commitments to cut red tape, facilitate sustainable development and conserve biodiversity’. Unsurprisingly, prohibitions on broadscale land clearing were removed in favour of self-assessable codes and the trading of biodiversity credits to offset the impacts of developments. An independent investigation revealed a subsequent 13-fold increase in clearing, and biodiversity is now at risk in 11 of the 13 NSW regions.

Meanwhile, people who seek to defend the environment face increased restrictions. The National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 has implications for all of Australia’s key environmental organisations, raising concern about the extension of ‘national security’ to economic relations with another country (read: foreign owned extraction industries), and the chilling effect on public participation, activism, whistleblowing and criminal penalties for peaceful protests, which may also be deemed to constitute ‘sabotage’.

The ethical implications of all these processes should be a matter of deep concern. As Cambridge economist, Jonathan Aldred, has written: ‘over the past fifty years, ideas about how we should behave have corrupted our thinking… It’s moral to be immoral… we have been encouraged to think that various actions and activities are acceptable, natural, rational, woven into the very logic of things – when just a few generations ago they would have seemed stupid, perplexing, harmful or simply wicked’.

Others have voiced similar concerns. Australian economist Richard Denniss said recently: ‘[s]ince the early 1990s Australian governments have underinvested in our people, our infrastructure and our natural environment and have been setting us up to fail not to prosper… And the cracks are beginning to show. The incessant propaganda war against the efficiency and effectiveness of government services, combined with the obsession about shrinking the size and role of governments, is now helping to drive a loss of faith in democracy itself.’

Meanwhile, feminist economists Marianne Ferber and Julie Nelson find ‘an ahistorical, disembodied account of economics bizarre. In the extreme it suggests that the ideals and definitions of economics have been given to humankind through divine intervention, or perhaps dropped from a Friedmanesque helicopter.’

Treating nature as a resource to be depleted in the pursuit of profits and economic growth can be challenged by recognising the intrinsic value of the environment and biodiversity. In Europe, there are strong indications of change in the dominant ethos. The EU’s 2020 Biodiversity Strategy for 2030 Bringing nature back into our lives identifies nature protection and restoration as critical elements of the EU’s economic recovery from the COVID-19 crisis. The EU recognises that restoring carbon-rich habitats and climate-friendly agriculture are among the five most important fiscal recovery policies, and that the twin crises of biodiversity loss and climate change are intrinsically linked.

Lessons need to be learned for Australia, leading to new priorities and paths for progress. To date, government policies for recovery from the COVID-19 crisis have taken us further into environmental, economic and social devastation by directing more public funds to fossil fuel corporations.

Now, with a new national government elected on a platform of governing with integrity and a commitment to action on climate change and the environment, the time has come to turn in the other direction, facing the havoc that neoliberal governance has wreaked and taking responsibility for a flourishing future.

To hear more from the authors, join us online for the panel discussion ‘Reimagining Environmental Responsibility After the State of the Environment Report’ on 16 August. 

Rosemary Lyster is the Co-Leader of the Climate Disaster and Adaptation Cluster at the Sydney Environment Institute. She is a Professor of Climate and Environmental Law in the University of Sydney Law School and a Fellow of the Australian Academy of Law. Rosemary’s special area of research expertise is Climate Justice and Disaster Law.

Danielle Celermajer is a Professor of Sociology and Social Policy at the University of Sydney, and Deputy Director – Academic of the Sydney Environment Institute. Her books include Sins of the Nation and the Ritual of Apology (Cambridge University Press 2009), A Cultural Theory of Law in the Modern Age (Bloomsbury, 2018), and The Prevention of Torture: An Ecological Approach (Cambridge University Press, 2018). She is Director of the Multispecies Justice Project and along with her multispecies community, she has recently lived through the NSW fires, writing in the face of their experience of the “killing of everything”, which she calls “omnicide”. She is the Research Lead on Concepts and Practices of Multispecies Justice.

Frank Stilwell is Professor Emeritus in Political Economy at the University of Sydney and coordinating editor of the Journal of Australian Political Economy. His books and articles have addressed economic issues from social justice, urban, regional and environmental perspectives, recently focussing on topics such as prospects for a Green New Deal, the pollical economy of inequality, and the diverse currents in political economic thought. He is a Fellow of the Academy of Social Sciences in Australia and an Executive member of the Evatt Foundation.

Header image: Bushfire Wildfire Smoke in remote area of Forrestania, Mount Holland Western Australia by Josh Tag via Shutterstock, ID: 1906529338.