Environmental regulation is a tough field. Incidents can erupt into public awareness, such as the Hazelwood mine fire in Victoria, or the chemical contamination at Williamtown RAAF Base in New South Wales. In times of crisis, the need for strong environmental regulations and a professional, well-resourced workforce to enforce them is clear. But most environmental crime doesn’t make it to the front page of the newspaper. Polluted rivers, contaminated aquifers, smuggled wildlife and choking air pollution – these are the “repeat offenders” of routine environmental crime, and they are harder to address in regional or remote locations where public impacts are limited.
It is in this mind that I am at the annual environmental regulators’ conference in Sydney. I want to understand more about the lived experience of designing and implementing environmental regulation. I am also curious to gauge the impact of the 2014 murder of NSW compliance officer Glen Turner on the activities of environmental regulators on the ground. This tragic event led to a criminal trial and a murder conviction for Ian Turnbull, a well-known Moree landholder who had in the preceding years been repeatedly investigated for illegal land clearing. In 2017, the NSW Coroner ordered an inquest into Turner’s death, the date of which is yet to be announced. The inquest is intended to help better understand the risks faced by officers such as Turner.
Environmental protection authorities exist in all jurisdictions and prosecute breaches of state and territory legislation, with their federal counterparts responsible for enforcing federal law. Some states have specialised courts, such as the NSW Land and Environment Court, which present additional opportunities for concerned citizens to launch legal proceedings. But litigation is expensive and time consuming, and courts are often used as platforms for appeal and delay. This can escalate public costs while the environmental damage remains unaddressed, possibly for years.
If you have ever received a fine for bringing your dog into a national park, or emptying your paint down the stormwater drain, you have been pinged by an environmental regulator. If you have ever complained about air pollution from wood smoke or bad smells from a nearby factory, your complaint has been passed on to the regulatory agency responsible for those issues in your jurisdiction.
As for any other part of the legal system, environmental law and policy is constrained by the human behaviours it attempts to regulate. These contradictions and corruptions are a constant source of frustration and bewilderment for the regulators. Although efficient regulation benefits everyone because it spreads responsibility for environmental values across public and private interests, this rational balancing act proves difficult to achieve. Regulation that clashes with tightly held values of individual rights or economic security may be seen as illegitimate, generating resistance and increasing the risk of noncompliance. Resistance is strongest when people feel the law is unjust in the way the costs and benefits of the regulation are allocated. When political narratives reinforce these fears, environmental regulation can become a source of pain and conflict for all parties involved, as Turner’s murder highlighted.
Delving into these complex dynamics, the 2018 Australasian Environmental Law Enforcement and Regulators Network (AELERT) conference asked the question, “Is being right enough?” This became an almost rhetorical query over the course of the three days, as presenter after presenter demonstrated the limitations and constraints of the regulatory system in dealing with human behaviour. The examples were diverse but the common threads were the determination of the regulator, the persistence of the illegal behaviour, and agreement that the risk of being caught is usually outweighed by the benefit to be gained from the crime.
There are seemingly endless numbers of recreational fishers who are prepared to risk being caught illegally fishing in protected areas on the Great Barrier Reef Marine Park because the catch is so much better. The increasing influence of international organised crime in illegal wildlife trafficking makes that trade extremely profitable, increasing the financial rewards for those prepared to take the risk. The overwhelming message was that “being right” is usually not enough to achieve the ultimate goal of environmental regulation – protection of the environment and prevention of future crimes.
The impact of Turner’s death on regulatory practice proved difficult to assess. Perhaps it is too early to clearly chart the repercussions. For those in NSW, the impending inquest casts a long shadow of tension and uncertainty over their daily work. Both NSW and federal government departments are reportedly checking their procedures and reassessing their responses, reviewing this particular case to understand what went wrong.
For those working in other jurisdictions, wrapped up in their own regulatory battles, the murder appears to be faintly felt. I asked several people if they had heard about the case. They nodded vaguely. “Wasn’t he a fisheries officer?” asked one. Presentations focused on improving internal organisational systems to speed up response times and “do better” at communicating outcomes of regulatory activity to the wider public. Some presenters suggested that regulators needed to place more faith in the community, involving them in designing and implementing alternatives to prosecution through the courts, such as restorative justice processes. The potentially dangerous nature of on-ground compliance was noted by the keynote speaker, scientist and former chief commissioner of the Climate Commission Tim Flannery, who urged greater community consultation where possible. In response, one regulatory officer characterised himself as a “control freak” and suggested that trusting the community might be difficult for those drawn to regulatory roles.
Another sign of changing regulatory practice was the strong focus on technological solutions. Data and evidence is increasingly being collected by drones, remote sensor cameras, geographical information systems trackers and satellite imagery. These technologies are useful for areas where routine visits are challenging because of distance or lack of on-ground staff. They are also helpful in situations where it may be dangerous to put people on the ground.
Technology may help address another challenge faced by environmental regulators – the limited amount of time actually spent in the field, gathering evidence and monitoring compliance. Time and motion studies from two jurisdictions showed that although regulators aspired to spend at least 50 per cent of their work time in active compliance activities, the reality was closer to 5 to 10 per cent.
A common complaint from agriculture and industry is that the regulatory burden in Australia is too high, leading to a loss of efficiency and economic productivity. Regular government commitments to reduce red and green tape may lead to more streamlined procedures at the front end of the process, but this may also see a gradual transfer of the regulatory burden to the public sector, slowing compliance activity and ultimately reducing the effectiveness of environmental law and policy. Deploying drones and using satellite imagery could help offset this perverse consequence of regulatory reform.
They may wear different uniforms and work for different agencies, but regardless of the issue or the jurisdiction, regulatory officers are bound together by their conviction in the power of well-designed and implemented rules. For environmental regulators, the rules represent the clear stream, which they attempt to keep clean on our behalf. As public servants governed by a code of conduct, they cannot dwell on the role that politics, power and “crimes of greed” undeniably play in muddying these waters. They follow the rules, enforce the law and demonstrate their integrity in pursuit of the public good. Sadly, this doesn’t protect them from the poisoning effects of a toxic public discourse, which can undermine their efforts by appearing to condone environmental crime. This is the inconvenient truth underlying the important work they do: being right is not enough.
This article was first published in the print edition of The Saturday Paper on Mar 10, 2018 as "AELERT and alarmed". Subscribe here.