The golden rule in business is stuff happens, unanticipated and unplanned stuff.
Harold McMillan said in politics it was ‘event, events’!
One could say that in the EPBC Reform Bill, the acknowledgment of “stuff” or “events” is sorely missing.
The Reform Bill package is about compliance. Only compliance.
It fails to take into account the real world of mining, agriculture, raw earth extraction, and forestry operations—everything where human business meets the natural environment.
Minister Watt has clearly attempted to bring forward a “protection of the natural environment” that does not frighten Australia’s economic drivers.
Unfortunately, someone in the Department of Climate forgot about the circumstances in which good businesses—those that continuously make efforts to comply with environmental law—operate.
The starting point is that a well‑operated business working in the natural environment cares about the well‑being of that environment. A good operator unconsciously acts as a steward of the natural environment. For those who scoff at this, ask yourself: why would a business dependent on the well‑being of the natural environment willingly destroy it?
The Reform Bill does not set any standard for good environmental business practice, nor does it reward businesses for such practice. You may ask: what has this got to do with a big‑stick environmental compliance bill?
If the objective of the bill is to protect threatened species in the natural environment and to permit, through the approvals process, various business activities in that environment, then a more collaborative legislative approach might have been contemplated.
A useful comparison is the Work Health and Safety legislative model throughout Australia. It could have been a purely compliance model with “thou shalt not” provisions. Indeed, it has these, but they sit alongside actions that a business is required to undertake.
If a business does these things, then any “event” that may occur is balanced against these good‑practice requirements.
It is a legislative carrot‑and‑stick approach that includes quasi‑business operating standards to assist businesses in achieving compliance.
Some say this is a legislative behavioural model to alter business practices; others acknowledge that it is simply common sense.
It ensures that aberrant conduct is caught out, but when good practice is hit by unforeseen circumstances, there is not just “lots of stick.”
The Corporations Act 2001 contains a similar approach through the business judgment rule.
The EPBC Reform Bill needs the same style of provision.
Provided a business operates with the best-known methods at the time, if an unexpected “unacceptable impact” occurs, the compliance agency and judicial system should be able to consider whether the business faced circumstances beyond its control that impeded full compliance.
For a business operating in the real world—out among nature and all its variables—this means there is a commonsense defence around the factors resulting in a failure‑to‑comply event.
The “best known method” acts as a best‑practice standard, and the capacity to have a defence against unforeseen events allows that event to become a contested set of facts instead of being a black‑and‑white contravention of what is currently a subjective compliance measure.
Timber NSW has been advocating for such an inclusion in the EPBC Act since 2021.
The EPBC Bill reforms point to a future of contested science, paving the way for public-interest matters before the Federal Court. Forestry is at the forefront of this, with a great deal of (arguably) contested science.
Whether fibre (timber), minerals, or other commodities, any litigation that stops operations will hit supply chains. Yet, impacted downstream supply‑chain businesses have no capacity to act as defendants in such litigation.
A better way would be to allow these businesses to assist the Court, particularly in ensuring it has all the relevant information to make a decision.
This could be achieved through the facility of being amicus curiae.
The beauty of having this explicit in the new EPBC Act is that participation of a business as amicus curiae remains at the discretion of the Court. It will not open the floodgates, so to speak.
It would be a simple provision to create a statutory right for a business in a supply chain impacted by litigation to apply to the Court to be amicus curiae. This would be another positive, business‑friendly measure in line with the objective of ensuring balanced protection of the natural environment and its good stewardship.
Please note: Wood Central can reveal that this suggestion was submitted to Minister Watt by Timber NSW.
