By Terri Butler

21 July 2020

SUBJECTS: EPBC Act Review Interim Report.
LEON DELANEY, HOST: Well, yesterday the much anticipated interim report of the Graeme Samuel review of Australia's environmental laws was released. Yesterday I spoke with Kelly O'Shanassy, the CEO of the Australian Conservation Foundation. The interim report finds that our protection, our environmental protection laws are outdated, inefficient and too weak. One of the key recommendations of the report is that there should be an independent watchdog body set up. That seems to be a recommendation that the federal government has already rejected. Joining me now the Shadow Environment Minister Terri Butler. Good afternoon.


DELANEY: Thanks for joining us today. Obviously, this is only the interim report and there is some distance to go. It seems everybody agrees the environment protection laws are in need of an overhaul. It just seems the
disagreement is on what needs to change. Is that about right?

BUTLER: Well it's very clear from this report that the environmental protection laws aren't really doing much environmental protecting and It's also very clear from a recent Auditor General report that the government itself has been very, very sloppy in the administration of these laws and in relation to the way that environmental approvals are actually handled.

We've seen a 510% increase in the delays for approval decisions under the environmental law. There's been criticisms, the Auditor General found that 79% of the decisions were affected either by not being compliant or affected by error.

So we're very concerned about the Commonwealth's administration of environmental laws and it's not really a surprise given that the Liberals and Nationals have cut 40% of the department's funding since they were first
elected. And this report, the interim report that's come out from Graeme Samuel is a good report, it's a long report, it's a detailed report. Got it yesterday. We've been working through it and having a look at it. It is very clear that he and I think it would be safe to say most of his submitters - whether they're from industry, community or environmental not for profits - are not happy with the current settings. And you know, I think that it's a bit of a shame actually that the government's already started cherry-picking the report by ruling things out on the first day it was made public. We haven't from our perspective as the Opposition, ruled anything in or ruled anything out, because we want to give this report the consideration that it deserves, to give Graeme Samuel the respect that he deserves, and look through it very carefully.

DELANEY: Even before this interim report was released, some weeks ago the federal government led by the Prime Minister, was talking about finding ways to cut green-tape as a means of stimulating the economy as the economy emerges from COVID-19. Now, of course, everybody's in favor of stimulating the economy, especially as we emerge from COVID-19, but there are some alarm bells that have been rung about this idea of cutting green-tape. Obviously, we want to cut unnecessary impediments, but where do you draw
the line as to what's an unnecessary impediment and what's a necessary piece of regulation to protect and preserve environment?

BUTLER: Now absolutely and unfortunately, when this government uses the phrase cutting green tape, that's just code for undermining environmental protection. I want to see both; I want to see rigorous environmental protection that actually delivers outcomes for the environment and an end to unnecessary delays.

And I thought it was a pretty shameless performance from the Prime Minister to be honest, he said, oh we want to bring approval decisions down to 30 days. Well, this is a government that has seen a 510% increase in delays in approval decisions.

He's not talking about getting them done quickly, he's just talking about trying to get them done on time for a change. And this is a government that in the 2018-19 financial year had 95% of its key decisions under this law being made late. Only 5% of those key decisions were being made on time. So I think there's a bit of shamelessness from the government in saying oh we want to cut green so called green-tape. What they should be doing is looking at what are the impediments to them getting things done on time, thinking
about the ramifications of cutting a big lump of funding out of the environment department and seeing what they can do to work constructively. Because one of the things, the point that both the Auditor General made in his report and that Graeme Samuel made in his report - they both made the same point - which is the government can't actually be confident that what they're doing in the environment is actually adding value to environmental protection. They can't be confident of that. And one of the reasons they can't be is because the
monitoring isn't there, the evaluation isn't there. And really, I think, quite fascinating on the on the topic of compliance, the point that Graeme Samuel has made is that compliance isn't firm enough. People I think, think that the environment department has got pretty toothless, that you know, you won't be pursued in a firm way by this environment department and that's obviously terrible.

DELANEY: Now, one of the points that the government keeps harping on about is the level of duplication between state and Commonwealth regulation. Now that is true, isn't it? There is unnecessary duplication and redundancy?

BUTLER: Well, one of the points that Graeme made in his report is that a big substantial proportion of these project approvals and assessments occur in a way that has the state doing the assessment, and the Commonwealth is still required to provide an approval. So when the when the government talks
about duplication, that's some of what they're talking about. Now, we are very interested in what can be done to remove unnecessary impediments, but it has to be done in a way that does not weaken environmental protections. It has to be done in a way that also doesn't lead to poorer quality decision making. You know the government, and some of the commentators, often like to complain about the fact that there are court cases
being brought about environmental issues, but the fact is, their poor quality decision making is all about driving that. You know, if you don't have good quality decision making then of course you are open yourself up to litigation. But even then, I mean, Graeme makes the point in his report, in the past five years there's only been 19 challenges. You know, we're talking about an agency that handles thousands and thousands of projects, tens of billions of dollars worth of projects, tiny, tiny proportion of proceedings being brought.

But if you want to reduce even that small proportion, what you want to do, is you want to clean up the department make sure the decision making works better.

And that means addressing things like as I say, 510% increase in delays, 95% of decisions being made late, 79% of decisions being affected by error or not compliant. I mean these things are pretty basic.

DELANEY: Sussan Ley has made the point that she would like to see environmental approvals handled by the states and that effectively the Commonwealth would simply hand over its responsibilities in that regard. Now
the states do have a role to play here and they already have quite significant regulation at the state level, why is that not sufficient? 

BUTLER: Well, we'll take a look at the entire report and we'll take a look at any, any legislation that the government wants to propose. As I said, I've very clearly not ruled it things in and out because I'm going to give this report the respect that it is due and consider it properly in a sober way. And of course, we'll go through our processes as the Opposition as well. But I will say this, if the government is is thinking about ways to involve the states and territories and what they're doing, then there's got to be a corresponding assurance for the Australian people that they can trust the processes. And this is an issue that Graeme Samuel in the interim report devotes a significant amount of space to.

He says the community doesn't trust the environmental laws and environmental decision making. And that's one of the reasons why he has been so firm about the need for a compliance agency that is independent, is
independent from the minister both actually and implicitly, that can be trusted to make sure that there is compliance with the requirements. So I think there's got to be some discussion about well, we will obviously as I say, we'll take a look at the report clearly and carefully and in a sober and measured way. But if there's legislation that seeks to give effect to it, we're going to be very interested in what's going to be done about compliance.

DELANEY: So at this point, Labor won't commit to supporting the idea of an independent compliance agency?
BUTLER: Well, what I will say is that compliance is very important. It's very important because of this government's own failures. As I said, 79% of decisions being affected by error or are non-compliant. And it's important for any arrangements with any states. I want to just make sure that I'm being very
clear, and I'm saying that that is very important. I'm obviously not going to announce any policy or rule in anything out at this point. As I say, we've got our internal procedures to go through and I think that they need to be respected as well. As I said, this is an important report. Graeme has done a lot of work, has had thousands of submissions. I'm going to consider it properly before leaping to express a public position.

DELANEY: Sure. And when Sussan Ley talks about handing responsibility to the states to reduce duplication, is that just another way of reiterating what Tony Abbott put forward six years ago with his one stop  environmental shop?

BUTLER: Well, I think a fair reading of this report is quite different to the Abbott proposal. The Abbott proposal was effectively just for the Commonwealth to wash its hands and walk away. I think that that was quite rightly rejected by the parliament. I think Graeme's proposal is, frankly, more thoughtful and more constructive. But as I say, I'm not going to be in a position today to announce what we will do, other than to say that I'm not going to do anything other than consider it very carefully and with appropriate respect.

DELANEY: All right, then. So you won't even go as far as Sussan Ley who ruled out a recommendation, you're not ruling anything in or out?

BUTLER: Well, I criticised her for cherry-picking the report on the day it was released. I mean, fancy releasing the report to the public and on the same day saying, oh, but we're not going to do this recommendation. I mean, I think it's pretty disrespectful to Professor Samuel apart from anything else.

DELANEY: Indeed, thanks very much for your time today.

BUTLER: Thanks for yours.