On 28 January 2021 the federal Environment Minister publicly released the final report from the independent review of the Environment Protection and Biodiversity Conservation (EPBC) Act – our national environment laws.
This is a once-in-a-decade review of our national environment laws – the laws that are meant to protect the air we breathe, the water we drink and the wildlife we love.
The Minister for the Environment, Sussan Ley, appointed Professor Graeme Samuel AC as the independent reviewer, a process which has now concluded with the public release of the final report.
Professor Samuel’s report issues an unambiguous warning to the government that Australia is on an unsustainable trajectory that will only lead to the continuing decline of our natural environment.
For many Australians this report is not a surprise. We see environmental damage to some of our most internationally recognisable places like Kosciuszko National Park and the Great Barrier Reef, along with the concerning decline of wildlife – unique creatures like the koala, cassowary and the platypus are under threat from habitat loss and climate change.
You can read the full report here.
But as it’s over 100 pages long I wanted to share some of the key messages with you:
- Australia’s natural environment and iconic places are under increasing threat and in an overall state of decline.
- Current environment laws struggle to address nationally pervasive issues like climate change.
- Australians do not trust that the EPBC Act is delivering outcomes for the environment, for business or for the community. A lack of clear outcomes, weak compliance and enforcement, and ineffective environmental monitoring and evaluation all drive this mistrust.
- The EPBC Act is broadly perceived as ineffective at protecting the environment.
- The EPBC Act does not clearly outline its intended outcomes, and the environment has suffered from two decades of failing to continuously improve the law and its implementation.
The report is comprehensive and – if the government implements the recommendations to make the laws actually protect nature – it is a significant start towards addressing Australia’s extinction crisis.
The quality and strength of the final report is a testament to the 30,000 people who contributed submissions to the review, showing just how many of us care about our environment.
Highlights from Professor Graeme Samuel's final report
The final report contains 38 recommendations, including:
- Development of legally enforceable National Environmental Standards, creating measurable and clearly defined outcomes for the environment. Professor Samuel provides proposed standards and recommends they be refined within 12 months.
- Independent oversight of decisions made under the EPBC Act by appointing a well-resourced Environment Assurance Commissioner. The Commissioner will audit decisions and provide transparent reporting of the conduct of all parties that operate under the EPBC Act.
- Establishing a resourced Office of Compliance and Enforcement within the Department of Agriculture, Water and the Environment to ensure adequate compliance and enforcement – and win back public trust in the law to deliver environmental protection.
- Handing over EPBC approvals for projects to the state and territory governments, using the national environmental standards as the framework for decision-making. This is a recommendation that ACF thinks presents significant risks for environmental protection (more on this below).
- The report proposes a long-reaching 2-year reform pathway resulting in an modernised Act or Acts capable of tackling the significant environmental challenges we face.
Australian Conservation Foundation welcomes strong national environmental standards, the two new independent agencies and the proposed reform pathway.
While we would prefer to see a fully independent regulatory body sitting outside the Department, the two new agencies proposed in the final report would still be a leap forward for environmental protection.
Independent oversight is critical to ensure accountability and compliance with our environment laws. This accountability and compliance has been missing in the last two decades of operation, as revealed by both the Samuel Review and the scathing review of the administration of the EPBC Act by the Australian National Audit Office.
However, handing over approval powers to states and territory governments is a risky proposition. History would suggest handing over approval powers will deliver poor environmental outcomes and the continued decline of our wildlife. We’ve seen comparable systems – like the Regional Forest Agreements – fail to protect threatened species like the Leadbeater’s possum. A report by the Environmental Defenders Office showed that state and territory laws contained no more than two of the full suite of the EPBC Act's 13 elements – elements intended to protect matters of national environmental significance.
State governments often have closer ties and pressures from project proposals within their borders, potentially allowing vested interests to wield greater influence over approvals. Wildlife and ecosystems don't adhere to state or territory borders. It will be difficult to avoid the continued "death by a thousand cuts" for critical habitats or threatened species without strong national oversight. The recovery of our iconic wildlife and communities from the black summer fires is an example of where a national approach is critical and cannot be bounded by our arbitrary borders and jurisdictional barriers.
Professor Samuel outlines a set of interconnected reforms that must be in place prior to approval powers being devolved. These include: binding strong national standards, independent oversight in the form of an Assurance Commissioner and Office of Compliance, and accountability frameworks. He has proposed a clear pathway for state and territory governments to be accredited to make federal environmental approvals that would ensure community trust and public accountability.
A few other points of interest from the final report
- Currently the water trigger requires significant impacts to water resources by coal seam gas and large coal mining projects to be assessed by the Federal Environment Minister. The review recommends expanding the water trigger to cover activities beyond coal seam gas and large coal mining projects however restricting it to only apply when cross-border water resources are impacted. Expanding the water trigger so it covers other actions beyond coal mining and coal seam gas mining is a welcome recommendation, however we are concerned about restricting its application to cross-border water resources only. Water is a precious resource in Australia and critical to the health of our ecosystems, wildlife and communities.
- Recommends retaining federal oversight within the Act for the protection of the environment against nuclear actions.
- Highlights that greater community involvement in decisions that relate to Australia’s environment is needed to ensure confidence and trust in the process. Recommends introducing the right for the community to pursue legal avenues to challenge the merits of a decisions made under the Act in certain circumstances (called limited merits review) – a critical accountability mechanism in a democracy like Australia.
- Recommends removing the logging industry’s special exemption from national environmental law by requiring native forests under Regional Forest Agreements to be afforded the same protection as forests under the EPBC Act. This would deliver significant environmental outcomes by protecting valuable habitat within Regional Forest Agreement areas that have increasingly been relied upon as habitat for threatened species.
What was the government's response to the final report?
Professor Samuel has provided the federal government with this comprehensive report following a wide-ranging consultation with thousands of Australians. We now look to the government for action to turn around the rapid decline of Australia’s natural environment.
The government’s response so far has been vague and non-committal. Environment Minister Sussan Ley did acknowledge Professor Samuel’s recommendations as a ‘sensible and staged process of change’ and noted the government intends to propose a set of national environmental standards.
However so far the only piece of legislation the Government has put forward is their Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020.
The Bill was introduced in August 2020 with the purpose of facilitating the hand over of approval powers to state and territory governments. It contains none of the safeguards recommended by Professor Samuel and is in direct contradiction with his explicit warning to "avoid the temptation to cherry pick from a highly interconnected suite of recommendations."
The ball is in the government’s court. There is widespread public interest in the review of the EPBC Act evidenced by over 30,000 submissions received by the review panel. Many of these submissions came from those wanting to see national environmental law reform that will actually deliver environmental outcomes rather than environmental failures.
In an introduction to the final report, Professor Samuel says "To shy away from the fundamental reforms recommended by this Review is to accept the continued decline of our iconic places and the extinction of our most threatened plants, animals and ecosystems."
One thing is certain: we need Professor Samuel’s suite of interconnected recommendations. We need strong legally enforceable standards and independent oversight to be in place before there are any moves to hand over Commonwealth environmental decision-making to states and territories, if at all.
What are the next steps?
- Get it right by calling on ALP and Greens Senators, plus crossbench Senators Rex Patrick, Jackie Lambie and Stirling Griff to oppose the Government's EPBC Streamlining Amendment Bill which will make our environment laws even weaker.
- Asking government Senators and MPs to speak out against weakening national environment laws and for strong laws that actually protect nature and an independent regulator to enforce them within their party.
- Elevating the extinction crisis and the once-in-a-decade review of our national environment laws to decision-makers, in the media and in the community.
- Making sure state and territory governments don’t rush into taking over approval powers from the federal government by signing ‘bilateral approval agreements’.
- Growing the movement of people demanding laws that actually protect nature by getting people involved in protecting, connecting and restoring nature in their neighbourhoods and backyards.
What you can do
- Send your MP a personalised email: ask them to read Professor Graeme Samuel's final report then act on the recommendations.
- Contact your Senators: ask them to speak out for stronger laws that actually protect nature, and an independent regulator to enforce them.
- Find the threatened species near you and ask your MP to address the extinction crisis happening in their own backyard.
- Join or start an ACF Community group and work with like-minded people to keep building the movement for a thriving environment.
Header image: Annette Ruzicka
