In late February the Morrison Government introduced new amendments to the Environment Protection and Biodiversity Conservation (EPBC) Act.
The new legislation, titled Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021, was introduced to create a national environmental standards framework and a National Environment Assurance commissioner.
The legislation is a small, first step towards reforming our national environment law, but it does little – if anything – to actually protect nature and wildlife in Australia.
To understand why, it’s worth recapping how we got here.
The independent review of our national environment law
Late last year, former corporate watchdog Professor Greame Samuel completed a comprehensive review of our national environment law – the Environment Protection and Biodiversity Conservation (EPBC) Act.
His final report, handed to the Morrison Government in October 2020, dispassionately lays bare the failings of our national environment laws: how they have failed to protect biodiversity and cultural heritage, and how they have led to inefficiencies for business.
You can get a more detailed rundown on the review’s findings from my colleague Tarquin.
In his final report, Samuel set out 38 recommendations on how to fix our broken environment laws and laid out a road map on how to get there. Some reforms like national environmental standards should happen right away. Others, such as creating a national environmental data system, would take a bit more time. But he didn't mince his words – they are all needed – and the government should not cherry-pick the recommendations to suit its agenda (spoiler alert: the government is cherry-picking the recommendations to suit its agenda).
Surprisingly in this day and age, the final report from Professor Samuel received cautious endorsement from business and environment groups alike.
A lesson in how not to do reform
Before Samuel even presented his report, the Morrison Government had already decided what they wanted to do: hand over decision making powers to the states and territories.
In early 2020, and at the request of the WA Chamber of Mines and Energy and Rio Tinto, the Prime Minister instructed the introduction of new legislation to smooth the way for handing over decision making powers to the states, titled the Streamlining Environmental Approvals Bill. The policy and legislation was simply a rehash of Tony Abbott's failed "one-stop shop" reforms. ACF and our allies at Places You Love – as well as a whole host of other stakeholders, from scientists to First Nations representatives – were pretty angry about the whole affair. After all, this was all happening while the 10-year review of our national environmental law was still taking place.
I've been involved with the reform of our national environment law for quite a while – both inside and outside government – and I’m not going to lie, I've never seen such a ham-fisted attempt at regulatory reform as what the Morrison Government tried in 2020. For a quick recap, the government:
- Rehashed controversial Abbott era legislation that had been rejected by the senate before.
- Undermined, ignored and overrode their own independent review by one of Australia's most well-regarded regulators, which received submissions from more than 30,000 people and organisations.
- Delayed the release of the final report of the review and when they did, provided no government response.
- Guillotined debate on the streamlining legislation in the house of representatives, and for months ignored requests from stakeholders and the senate crossbenchers for an inquiry into the legislation.
- After realising their legislation wouldn't pass, set up an inquiry with only one day of hearings and less than a week for the public to provide submissions. All a cynical move to try to win over the crossbench senators, while still not releasing the final report.
- Failed to effectively engage and consult with the states and territories on the reform process.
So fast forward to March 2021 and you may ask: ‘well what's happened with Professor Samuel's recommendations?’ The short answer is: not much. But we are starting to see some movement at the station.
The Standards and Assurance Bill: the good, the bad and the ugly
The government has realised it cannot pass its Streamlining Bill without engaging with the senate, especially independent crossbench Senators Jacquie Lambie, Stirling Griff and Rex Patrick. The government needs at least one of these crossbench senators to pass any legislation assuming it has the support of One Nation (it almost always does) and all other parties oppose.
So, the new Standards and Assurance Bill has been brought in to try to win over senate support for the stalled Streamlining Environmental Approvals Bill. While there are some small steps forward in the new bill, there are gaping loopholes that present a very serious risk to environmental protection unless addressed. We currently expect the two pieces of legislation to eventually be joined together as a package in the middle of 2021.
Despite the introduction of the Standards and Assurance Bill, the biggest issue remains that the government still refuses to respond to the full suite of 38 interconnected reforms proposed by Professor Samuel. Instead, it is cherry-picking measures that it hopes will lend enough support to get its bills through the senate and hand over Commonwealth approval powers to the states and territories.
National Environmental Standards
The good
The legislation is a small, first step forward on reforms that could potentially help the environment. It creates a framework that seeks to establish National Environmental Standards, which represent the “centrepiece” of Professor Samuel’s reforms. The general concept of National Environmental Standards are supported by ACF and PYL, but as with all things policy, the devil is in the detail.
As professor Samuel notes in his report, the EPBC Act is a piece of legislation that is oriented to process, not outcomes. For example, it doesn’t describe the types of environment or habitats that need to be protected, but simply says ‘here are the steps to evaluate how they are impacted’. In contrast, outcome-oriented National Environmental Standards specify the environmental end-points that decision making should achieve.
The logic is relatively sound: have standards that stipulate the outcomes that approval decisions must work toward. Such a model provides upfront guidance to industry on what the key thresholds are for their developments, and certainty for the community on what environmental regulation is expected to deliver. It also provides a measurable goal for which the performance of regulation can be measured.
Professor Samuel proposed a set of National Environmental Standards as a part of his final report. Samuel developed these standards after many months of consulting with industry groups, scientific organisations, First Nations representatives, as well as ACF and our friends in the Places You love Alliance. The standards contained in Professor Samual’s final report are a compromise and are far from perfect. He even acknowledges in the report that his proposed standards are insufficient to address Australia's ailing environment and would need to be strengthened over time. But they are a starting point from which organisations and experts engaged in good faith. Professor Samuel’s standards are not a perfect start, but they are a start. And this is where the good news on national environmental standards ends…
The bad
The Samuel standards, which he recommends should be implemented immediately as part of a comprehensive package of reforms, have been abandoned by the Morrison Government in favour of their own version of “interim environmental standards”. The government’s standards, which were leaked to the media, are designed to look similar to those in the final review report, but it’s there the similarities end. The government’s standards simply replicate existing provisions of the EPBC Act. They outline processes and do not guide outcomes. In effect the government is just duplicating its existing legislation in the form of standards (which will be a regulation). From a policy point of view, it is a messy and backward approach.
The government has completely ignored a central thesis of the Samuel report – that standards should define environmental outcomes, not simply dictate process. To demonstrate it in simple terms, an outcome-oriented national environmental standard for threatened species would say critical habitats must be defined, identified and protected. A process-type standard would simply say critical habitats would need to be accounted for in any assessment of impacts. They may sound similar, but they clearly mean very different things.
The government is attempting some policy sophistry with this approach. It is also arguing that the standards have been endorsed by National Cabinet (they haven’t) and that they have support of all the states and territories (they don’t).
The ugly
There are some significant issues with the legal framework for standards in the bill:
- They will lock in the government's weak “interim standards” and stop parliament from scrutinising them (through what is known as a “disallowance motion”).
- There is no provision to automatically remove or improve the government’s weak “interim standards”, instead requiring an independent review that does not compel the minister or parliament to update the standards. In effect we could be stuck with whatever standards are introduced to begin with, even if these are the government's weak standards.
- It provides a public interest exemption to enable the Commonwealth minister to override National Environmental Standards based on the “public interest”. But this isn’t defined and we have seen abuse of similar provisions under the EPBC Act in the past to exempt projects entirely from the law, such as the exemption of the destruction of threatened flying-fox habitat during the 2016 federal election.
- It creates a broad set of considerations and discretion for decision makers as to how standards are being met. This includes provision to enable decision makers to factor in existing government programs or plans when making decisions. A worst case example would be where a government authorised a mine that does not comply with a standard for protecting threatened species on the basis that the government has a tax-payer funded conservation program for that species.
A National Environment Assurance Commissioner
The good
Back in 2017 the Australian Panel of Experts on Environment Law recommended the establishment of a national Environmental Protection Authority and a national Environmental Commission. An independent EPA and National Environmental Commission have been a key policy ask of ACF and Places You Love since that time.
So bearing this in mind, the creation of a National Environmental Assurance Commissioner (EAC) is a cautious step in the right direction. On paper, the proposed Commissioner would be independent, appointed by the Governor General and have specific responsibilities for overseeing the implementation of bilateral agreement and Commonwealth approval responsibilities consistent with national standards. This all sounds reasonable. But again, it's once we unpack how the Commissioner will work and what they are empowered to do that it all goes off the rails (sigh).
The bad
The EAC, whilst independently appointed, would sit within the federal Department of Agriculture, Water and the Environment. The EAC would have no dedicated staff, and would have to request resources from the Secretary of the Department. This is a recipe for disaster because it would be easy to starve the EAC of dedicated resources if directed by the government.
The EAC would also be unable to audit the approval of individual projects, which kind of defeats the purpose of an assurance commissioner. They would only be empowered to audit overall approval systems. So instances of corrupt or inappropriate conduct by state and territory regulators or non-application of standards for specific approvals would not be able to be investigated. For example, if a state decided to cut corners to approve a project, like what the Queensland government did with the Toondah Harbour development in 2013, the EAC would be limited in its ability to intervene.
The bill also gives the Environment Minister a prominent role in shaping the work plan of the EAC and limits its capacity for reactive audits.
In short: the Assurance Commissioner is a far cry from the ‘strong cop on the beat’ initially recommended by Graeme Samuel’s Interim Report. The role is set up to fail based on the lack of resourcing and constraints on its operations. Coupled with the government’s moves to abandon Professor Samuel’s standards, the Standards and Assurance Bill does little to address the disappearance of Australia’s wildlife and collapse of our ecosystems.
What next?
The government’s Standards and Assurance Bill has been referred to a senate legislation committee for inquiry.
Anyone can make a submission. We’ve prepared a handy submission guide to help members of the ACF community engage in the inquiry process.
It’s important that people speak out on this flawed legislation. While it's the first glimmer of reform we’ve seen, at the moment it represents a fig leaf that’s being used to garner support for the handing over decision making powers to the states and territories.
The senate can hold the government to account and drive major improvements in the Standards and Assurance bill – but only if enough people speak out. Backed by the community, they can compel the government to release a comprehensive response to the Samuel review and create laws that will genuinely address Australia’s growing extinction crisis.
