On 8 December 2022, the federal Environment Minister, Tanya Plibersek, released the Albanese government’s response to the final report from the independent review of the Environment Protection and Biodiversity Conservation (EPBC) Act – our national environment law.
The EPBC Act is the central piece of Australia’s national environmental protection framework. It is meant to protect nationally significant places, ecosystems and wildlife but under these laws, Australia has become a global deforestation hotspot, with the worst rate of mammal extinction in the world. Much loved animals like the Koala and Greater Glider are now endangered and four out of five Black Cockatoos are threatened with extinction.
In 2020 Professor Graeme Samuel undertook a once-in-a-decade independent review of the EPBC Act. More than 30,000 Australians and organisations contributed, with the vast majority calling for stronger and more effective laws to protect our incredible natural and cultural heritage. The review found our national environment law is “outdated”, “ineffective” and “not fit to address current or future environmental challenges” like climate change and extinction.
The government's response accepts or addresses many of Professor Samuels’ recommendations. It’s a good starting point and an important first step towards tackling Australia’s extinction crisis but there is a lot more detail to be worked out.
Some of the key highlights include:
The government has agreed to create legally enforceable National Environmental Standards which set out measurable and clearly defined outcomes for our laws to achieve. All decisions and policies under the Act will need to be consistent with the National Standards. Once the standards are made, revisions will only be able to improve environmental protection. The introduction of standards is a fundamental shift away from the ‘box ticking’ process of the current EPBC Act.
Importantly, the government is proposing that standards will be applied to Regional Forest Agreements, effectively removing the logging industry’s current special exemption from the EPBC Act.
The government has stated they will commence the development of the National Standards next year. Ensuring the standards provide clear and strong protection for nature and are put in place quickly, they will be absolutely fundamental to ensuring the reforms are effective at tackling Australia’s extinction crisis.
The government will establish a new national Environment Protection Authority (EPA) as an independent regulator. The EPA will be responsible for ensuring the impacts of projects such as mines or marina are properly assessed in compliance with the National Environment Standards and will decide whether to approve or refuse those projects. This important reform, in combination with strong national standards, has the potential to be a game changer which would remove the high levels of ministerial discretion (and therefore potential for political influence) in the current system.
However, the government is proposing that future environment ministers will still have the power to ‘call in’ decisions in some circumstances. That is, some decisions could still be made by the minister rather than the EPA. There will be transparency around this process, with the response suggesting that the minister will have to publish reasons for calling in a project, as well as reasons for their final decision about whether to approve or refuse the project. There needs to be strict criteria put in place so this ministerial ‘call-in’ power is only used in limited and well-defined circumstances.
Under the government’s proposal, the EPA will also be responsible for compliance and enforcement of the EPBC Act. Weak compliance and enforcement of the current regime has resulted in ongoing habitat destruction and demonstrates why we need a fully resourced and independent EPA. Proper enforcement is sorely needed to restore public trust and confidence in our national environmental laws. The head of the EPA will be appointed by the Minister (subject to strict criteria) and will only be able to be removed in specific circumstances. As the government moves to draft legislation, we need to ensure the EPA has strong governance arrangements that guarantee independence and is well-resourced.
The government has suggested improvements to ensure environmental data is public and accessible. This includes a new ‘Data Division’ in the federal environment department, expanded State of the Environment reporting (including interim reports) and the development and publication of National Environmental Accounts.
In the same way our economic reporting keeps track of the health of the economy, National Environmental Accounts would track the health of our natural environment. These accounts should help ensure standards, planning and decisions are made based on the best available scientific evidence, and to track whether the new laws are really working.
The government has committed to work with First Nations representatives to co-design new standalone First Nations cultural heritage protection laws. The response also proposes to enhance the role of the Indigenous Advisory Committee under the EPBC Act.
This committee will lead the co-design of a National Environmental Standard for First Nations engagement and participation in decision-making, as a priority. These are important improvements, as First Nations knowledge, law and interests must be recognised and valued in environmental law through the reform process.
The government response states that projects will be required to publish some of their greenhouse gas emissions (known as Scope 1 and 2 emissions), and to disclose how their project aligns with Australia’s national and international obligations to reduce emissions. The changing climate will also be a mandatory consideration in conservation planning such as recovery plans for threatened species.
While this is a start, the government has not committed to a ‘climate trigger’ under the EPBC Act, on the basis that it does not want to duplicate existing mechanisms for reducing greenhouse gas emissions. This will leave a significant gap in the EPBC Act because it will not clearly or explicitly require climate change and its impacts on our species and ecosystems to be addressed in decision-making.
There is also currently no other Commonwealth policy mechanism which ensures that the climate impacts of new or expanded projects (such as new coal mines) are clearly considered and addressed before those projects are built and begin operating. The significant risk that climate change poses to Australia’s environment needs to be embedded throughout the EPBC Act. This should be included in Act’s objectives, as well as an explicit requirement for all emissions to be considered and addressed in environmental assessment processes.
Currently the ‘water trigger’ under the EPBC Act requires projects with significant impacts to water resources by coal seam gas and large coal mining projects to seek approval under our national environmental laws. The government will expand this to include all forms of ‘unconventional’ gas (such as shale gas which is found in the Beetaloo Basin), which is an important and welcome reform.
Offsets are supposed to compensate for the impacts of a development on threatened plants and animals by protecting habitat elsewhere. In theory, offsets are currently meant to be a last resort after a project proponent has made all attempts to avoid and reduce impacts on the environment. Even though offsets should only be available in limited circumstances, they have become the default approach and, in many cases, have been facilitating habitat destruction and contributing to species decline.
The government has committed to reform the offsets scheme to ensure when offsets are relied upon, they deliver an improvement in biodiversity values - a net gain. Getting these reforms right is crucial, therefore it is concerning that the government is proposing to introduce a new option of making a conservation payment where a proponent is unable to secure the required offsets. If not done carefully, this proposed ‘pay to destroy’ scheme has the potential to undermine the government’s proposed new environment laws. A similar scheme in New South Wales has been heavily criticised in recent reviews and reports.
The government has also committed to improving access to environmental data and information and will create a National Environmental Standard on community engagement and consultation. The Government will also examine the possibility of strengthening third-party enforcement provisions, an important accountability measure enabling community members to enforce breaches of the new laws.
These are welcome measures as greater community involvement in decisions that relate to Australia’s environment is needed to ensure confidence and trust in the process. Disappointingly though, the government has rejected the recommendation of the Samuel review to introduce a limited form of ‘merits review’ for decisions under the EPBC Act. Merits review allows for an independent examination of decisions and is a safeguard against corruption.
While the overall direction of the government response is positive, there is a long way to go and a lot more detail to work out. As they currently stand, the government’s plans do not go far or quickly enough to end nature destruction and restore nature to health. As the government moves to draft legislation to make these reforms a reality, we must keep the pressure up.
Draft legislation will be released for public consultation around the middle of 2023 and will be introduced into parliament by the end of that year.
Alongside introducing strong legislation, these reforms will need to be properly funded in the federal budget. These reforms will only work if they are adequately resourced.
The ultimate measure of success for these reforms will be whether they end Australia’s extinction crisis. The reforms need to protect our unique wildlife, plants and ecosystems from destruction through land clearing, logging, climate change and invasive species and restore trust and confidence in environmental decision-making.