Few who sat down to hear Ken Henry speak about environment law this week would have been surprised by his blunt analysis. But they may not have expected the sharply plain-speaking former Treasury head to begin his address fighting back tears.
Henry has copped a lot of flak over the years for personally prioritising wildlife protection when he was one of the nation’s most powerful public servants.
In 2008, opposition leader Brendan Nelson chose to reduce the then secretary’s passion to a cheap punchline for a swing at his minister, Wayne Swan, when Henry took five weeks off during the global financial crisis to volunteer as a caretaker in Queensland’s remote Epping Forest national park, habitat of the endangered northern hairy-nosed wombat.
“Five weeks is a long time and I’m a bit concerned about who is going to look after our muddle-headed treasurer in that period,” Nelson said at the time.
Seventeen years on, Henry’s opening remarks to the National Press Club this week exposed the depth of his ongoing commitment as he singled out Greens senator Sarah Hanson-Young in the audience for what she’d done for frontline wildlife defenders.
“She has become quite an advocate for the interests of those people who spend their lives looking after injured and orphaned native animals — which is dear to my heart — so, thank you,” Henry said, his voice cracking before he reached for a water glass to get himself back to business.
He was speaking as chair of the Australian Climate and Biodiversity Foundation and his target was the tangle of Australian laws that are supposed to protect the environment but are undermining it — and the economy — instead. He joined the dots from the acute need for climate action, the government’s quest to transform the energy system and its ambition to meet the challenges of housing, infrastructure and critical minerals development and boost productivity, to the laws that could help solve all of it but are failing.
“All these projects will be critical to enhancing economic resilience and lifting Australia’s flagging productivity growth,” he told his audience. “Boosting productivity and resilience relies upon environmental reform. But the biggest threat — the biggest threat — to future productivity growth comes from nature itself, more particularly from its destruction.”
In a brief stroll through economics 101, Henry described his chosen discipline as being “about optimising choices” by carefully specifying not only your objective but all the constraints that dictate your options for achieving it. Make a mistake in specifying those constraints, Henry said, and your decisions “become suboptimal.”
For the past century, he argued, economists have largely ignored what should be recognised as the most potent constraint of all: the “immutable laws of nature.” By failing to acknowledge and respect those laws — and to consider the impact all economic decisions have on the environment as a whole — we’ve “turned nature against us.” The natural environment has begun accelerating wild weather events instead of protecting us from them, and its destruction now poses “an existential threat to everything that we value.”
The roadmap to genuine environmental and economic reform had already been written, he said, jointly by the late Allan Hawke in his initial review of the Environment Protection and Biodiversity Conservation Act and then in Graeme Samuel’s comprehensive re-examination in 2019–20. Henry himself led a review of the whole tax system in 2010 that proposed a road user charge, among numerous other ideas also not taken up, and he recommended an emissions trading scheme to prime minister John Howard more than two decades back, in 2004.
“Despite all of that, here we are in the winter of 2025,” he said. “Nothing has changed.”
Henry is especially exercised that the carbon-trading scheme, finally introduced, was soon abolished by Tony Abbott. “Why the hell did we ever drop it? I mean, that’s the question, right? It still boggles the mind… Well, my God. Of course, we need a carbon tax.”
He blamed short-termism, political self-interest, blame-shifting and a lack of coordination between federal and state jurisdictions for the decades-long failure to progress reform of all kinds, and especially this. The mindset — and the laws — need to change, he said, and that needs to happen in this coming three-year term of parliament, the one that begins next week.
Henry’s address came a day after the Federal Court rejected a compensation claim brought by two traditional owners from islands in the Torres Strait who argued that successive Commonwealth governments had negligently failed in their duty of care to protect island communities from the impact of climate change. If Ken Henry was unapologetic in calling out the dire state of the climate and its relationship to the economy, Justice Michael Wigney was forced by the law to be almost the opposite by the end of his lengthy and eloquent judgement.
Despite finding against lead plaintiffs Uncle Pabai Pabai and Uncle Paul Kabai from the islands of Boigu and Saibai, Wigney made plain his agreement that their communities are being “ravaged” by climate change and that successive governments have failed them. In a judgement with the tone of a lament he described the “devastating” impact of rising tides, extreme weather, disappearing marine life, salinated wetlands, acidified oceans and bleached coral on daily life in the Torres Strait and on the deeply held cultural beliefs and practices of its people.
The judge emphasised that his was not a verdict on the facts of climate science, which he said were clear. He couldn’t find in the men’s favour because current Australian law, and particularly the law of negligence, made no provision for such a claim. The quality of policy was therefore a matter for parliament, not the courts, he wrote, and the only recourse against detrimental decisions was “via the ballot box.” But that didn’t prevent him from devoting many, many pages to the science and politics of climate change in this country.
Australia’s response to the threat it posed — and poses — to the Torres Strait Islands “has, at least in some respects, been wanting,” he wrote. Without naming them, he singled out the Abbott and Morrison governments for specific criticism.
“In particular,” he wrote, “I have found that, when the Commonwealth identified and set Australia’s greenhouse gas emissions reduction targets in 2015, 2020 and 2021, it failed to engage with or give any real or genuine consideration to what the best available science indicated was required for Australia to play its part in the global effort to moderate or reduce climate change and its impacts.”
He noted that the best available science was behind the world’s goal: to prevent the most dangerous impacts of climate change it “was and is imperative” for every country to reduce its greenhouse gas emissions to limit the rise in the global average temperature to 1.5 degrees Celsius — and no more than 2 degrees — above pre-industrial levels. Wigney wrote that the evidence before him showed the targets the government set in those three years “were plainly not consistent with those objectives” nor with the global climate agreement Australia had signed in Paris in 2015.
If these twin messages pointing to parliament’s intransigence haven’t yet struck a chord among those about to enliven its halls, they should — if only for the fact that many of the news stories on which politicians were asked to comment this week went to exactly the issues they raised.
The judge’s ruling and remarks were a story all on their own. Henry’s warnings about the damage wrought by inefficient federal–state relations, the state of toxic waterways and the rise of invasive species and depletion of those endangered were all vividly illustrated in our media — in the lack of a national database for childcare workers, the toxic algal bloom off the South Australian coast, the march of nasty fire ants beyond southern Queensland and the seed-sized tree-destroying beetle in Western Australia and, yes, the prime minister’s visit to a panda-breeding sanctuary in China.
Here it’s worth quoting Ken Henry from back in 2008, when his wombat-saving venture was making headlines. “These guys are on death row,” Henry told the Sydney Morning Herald. “There are ten times as many giant pandas in the world as there are these guys.”
All this underscores Ken Henry’s argument that environmental law reform is beyond urgent — and not just for nature’s sake. It’s holding Australia back.
Henry spent some time on the government’s issue du jour — productivity — describing environmental law reform as essential to lifting Australia’s performance because of the detrimental impact the red-tape-heavy laws were having both on business and on nature. Australia’s failure to achieve Treasury’s twenty-five-year productivity projections made in 2002 has already had real financial consequences for ordinary working Australians, he explained. The target was 2.25 per cent, the projection 1.75 per cent and the outcome just 0.98 per cent. Using the assumption that real wages grow in line with productivity, as they generally do, Henry did the maths.
“The average full-time Australian worker has been robbed of about half a million dollars over the past twenty-five years because of our failure to achieve,” Henry said, declaring it “not good enough.”
“So, you know, when I hear people say, ‘Oh, we can’t do this to enhance productivity, we can’t do that to enhance productivity, because… it’s going to hurt somebody,’ I think: ‘Give me a break.’”
Henry reckons the collective mindset needs to change and so does the law. He wants enforceable national environmental standards and to have proposed developments assessed for their cumulative effect on climate change, or efforts to curtail it, rather than considered individually. He wants a legislated climate trigger in the Environment Protection and Biodiversity Conservation Act.
Unless it is properly overhauled in this parliamentary term, he declared, Australia’s commitment to achieving net zero emissions by 2050 and adhering to the global diversity framework will not retain “a shred of credibility.”
An address that began in tearful gratitude ended somewhere closer to anger at the mismatch between lofty rhetoric and action. Like Justice Wigney, he pointed to Capital Hill. “We’ve had all the reviews we need. All of us has had our say. It’s now up to parliament. Let’s just get this done, shall we?”
Shall we? •
