Conflict of Interest: Will environmental protections be kept out of states’ hands?

States and territories are notoriously conflicted when it comes to protecting the environment.

And this week’s move to shake up Australia’s environmental laws has left conservation groups worried states will still be able to decide whether a controversial project goes ahead. 

A major review into environmental protection laws by former Australian Competition and Consumer Commission (ACCC) chair Graeme Samuel has found Australia’s natural environment was in an overall state of decline and under increasing threat.

“The current environmental trajectory is unsustainable,” it said. 

The interim report recommends sweeping changes to the law, including developing a set of legally enforceable national environmental standards.

Environment Minister Sussan Ley has promised to introduce the standards, while also pushing ahead with legislation that would allow states and territories to carry out assessments — even before Samuel’s final report is handed down in October.

But the Australian Conservation Foundation (ACF) said this could end up handing more power back to the states, which it said are more beholden to vested interests such as local jobs and royalties.

“The government is cherry-picking the bits of the report they like and rejecting the bits they don’t like,” ACF chief executive Kelly O’Shanassy says.

“States are conflicted. They want development to go ahead. There are conflicts of interest that need to be addressed.”

History of bad deals

State governments have a long history of rolling over to the demands of powerful and politically connected developers, often turning a blind eye to environmental concerns in return for the promise of jobs and tax income.  

In 2015 the Queensland Labor government approved the controversial Toondah Harbour wetlands development proposed by Walker Corporation, owned by billionaire Lang Walker. 

As the ABC revealed in 2018, the Walker Corporation donated $225,000 to the federal Liberal Party and $23,000 to Queensland Labor the same financial year the development was sent to the federal government for final approval. 

Criticism was levelled at the New South Wales government in 2015 for selling Vales Point power station to coal baron and Liberal National party donor Trevor St Baker for $1 million. The power plant was revalued at $730 million two years later.

Australian National University environmental law expert and honorary associate professor Peter Burnett said the money that state governments could make from large projects made them bad environmental protectors.

“Those kinds of factors compel them to approve developments,” he said. “Even if they say they’re committed to upholding certain environmental values, there’s a lot of pressure on them if there are jobs and revenue on offer, which of course there are.”

Devil in the detail

The Samuel review supported the notion that states could approve developments as long as they met a strong set of national standards. It also stressed the need for some kind of regulator to be a “strong, independent cop on the beat” for monitoring compliance and enforcement.

Ley rejected the idea of a separate regulatory body but said the standards would be developed by the federal government and would underpin new bilateral agreements with state governments. This would remove duplication by allowing states to carry out assessments and approvals on the commonwealth’s behalf. 

“This is our chance to ensure the right protection for our environment while also unlocking job-creating projects to strengthen our economy and improve the livelihoods of everyday Australians,” she said. 

Samuel told Crikey he agreed the states were conflicted when it came to protecting the environment.  

“When they are so close to the revenue source of developments, you can understand there’s a conflict of interest,” he says.

But he was confident the government reforms would allow for strong federal oversight. 

“All this is doing is shifting the workload from the Commonwealth to the states. The Commonwealth retains control because of the environmental standards in place.”

Burnett was hopeful the government would adopt the spirit of the Samuel report, which stressed the importance of independence and federal control.

“In principle the model is fine, but the devil is in the detail,” he said.