The hotly anticipated Interim Report of the Independent Review of the EPBC Act was released by Professor Graeme Samuel today. EDO lawyers are currently analysing the detailed report, but we wanted to share our initial thoughts on five key proposals.

The decadal statutory review of our national environment law provides a crucial chance to ensure our national environmental law truly protects Australia’s amazing wildlife and country, especially given the post catastrophic-bushfire challenges and the current extinction crisis. During the consultation for the review (and for many years before), EDO lawyers, colleagues and clients have advocated for national leadership and stronger laws that effectively address our greatest environmental challenges. To date, in contrast, the primary Government metric for amending the Act is whether project approval times are cut.

How does the Interim Report and the Government response measure up against a broader metric?

1. Positive proposals for reform

At the outset, the report recognises the serious environmental crisis we are facing and the deterioration of our natural capital. It recognises that the current Act is failing to address trajectories of decline. It clearly states that substantial reform is needed, including a redrafting for a new Act (or even Acts), new environmental standards, a new independent regulator.

We welcome the proposed establishment of National Environmental Standards. The Interim Report proposes these as the foundation element of a new consistent and efficient system. If these are mandatory and measurable, they could play a key role in lifting state standards and ensuring environmental outcomes are actually achieved. EDO will be involved in specific consultation on developing standards between now and the final report in October.

There are also positive directions in the Interim Report in relation to:

  • collecting, coordinating and publishing environmental data;
  • establishing a significant nature fund for landscape scale investment;
  • regional landscape planning; and
  • valuing Indigenous knowledge and improving protection of cultural heritage.

EDO supports these proposals for a stronger Act.

2. Independent effective regulator

To ensure the positive proposals in the report result in reforms that actually address environmental decline, any new law will need to be effectively implemented. The Interim report has honed in on a fundamental flaw of the current Act – poor implementation – and recommended an independent compliance and enforcement regulator (specifically that “a strong, independent cop on the beat is required.”) However, despite the recent scathing report by the National Audit Office that confirmed the utter failure of the federal department to administer the EPBC Act, the federal government still does not feel an independent regulator is needed, and has already ruled out supporting this recommendation.

EDO strongly supports an independent national EPA to enforce a new Act and will continue to advocate for this. There will be no point having a shiny new law if national standards are not enforced.

3. National leadership vs devolved responsibility: The ‘One stop shop’ policy resuscitated

There will also be no point developing a shiny new law next year if interim amendments made this year under the guise of COVID recovery lock in environmental decline. Before the independent review has even run its course and made final recommendations, the Government has flagged its intention to amend the existing law  to delegate environmental approval powers to the states.

Federal Government commentary on the review to date has focused on ‘streamlining’, ‘efficiency,’ cutting purported ‘green tape’ and has suggested that the sole metric for a complex regulatory regime is how quickly approvals can be signed off. Calls for efficiency measures – such as single approvals (formerly called a ‘one stop shop’, now called ‘single touch approvals’) – are not new. This deregulation agenda pre-dates both the horrific bushfire season and the COVID-19 pandemic. Part of this agenda is delegating environmental responsibility to the states. Yes, the states with the laws that cannot even protect koalas as found by a recent NSW parliamentary inquiry; the states that amend laws to facilitate habitat loss.

This delegation hinges on states and territory laws being accredited as meeting national standards. It is intended that “the proposed National Environmental Standards provide a clear pathway for greater devolution” while at the same time ensuring environmental protection.

There is clearly a tension here that will need to be worked through. On the one hand the Report suggests it is the new standards that will drive improved environmental protection and outcomes, and that the next step in the review process is to work with expert stakeholders developing a robust suite of environmental standards by the final report in October 2020. On the other hand, the Government is intending (supported by the proposed ‘Phase 1’ of the reforms) to pass legislation as soon as possible in Parliament to facilitate new bilateral assessment and approval agreements. In the absence of confirmed standards, a set of “Interim standards” will be used to fast track the devolving of powers to states and territories. These are different and potentially conflicting purposes. So, it is fair to ask – are the standards for environmental protection and outcomes or for streamlining and fast tracking?

EDO lawyers will be scrutinising any amending legislation that attempts to remove safeguards or devolve responsibility to states or territories with weaker environmental standards.

4. What about climate change?

In over a thousand pages, the current EPBC Act doesn’t mention climate change, even though it is the biggest threat we face. Disappointingly, the Interim report does not recommend a greenhouse emissions trigger (as recommended in the last 10-year review by Allan Hawke), but does suggest climate change impacts be a more visible consideration in the project assessment and approval process. Once again, it is assumed that climate change will be dealt with more appropriately by other legislation. We cannot agree.

Similarly, the Interim report does not support other new ‘triggers’ for matters of national environmental significance to be added to a new national Act. There is no support for a national land clearing trigger – despite state laws allowing broadscale habitat destruction and despite the emissions associated with land clearing. It is also proposed that the water trigger for impacts from large coal and coal seam gas activities be limited to where there may be irreversible depletion or contamination of cross border water resources. This represents a narrowing of scope, instead of a strengthening of the law to address the climate and water issues Australia faces.

5. Accountability and access to justice

Again, this is a topic that has been discussed in the media long before and during the review, and where the report and the government response differ. Graeme Samuel remains unconvinced on the evidence that extended standing or purported ‘lawfare’ are issues in need of reform, with the report clearly rejecting the notion of ‘green lawfare’. In contrast, the Government is determined to maintain its position that reform is needed. The Interim report recommends potentially limiting judicial review (review of the process) and floats a limited form of merits review ‘on the papers’.

The Interim Report also provides recommendations around improving access to information which is helpful to strengthening accountability and transparency in decision making processes. This is supported by EDO and our clients.

EDO is examining this part of the report carefully and will publish our detailed analysis in the coming days.

EDO has a vision for a strong and effective national environmental law that effectively protects our unique environment [see our submission]. In the coming days we will examine the detail of the Interim Report and let you know our thoughts in more detail on the interim review findings and the potential impacts of the Government’s pre-emptive legislative response.

How can you be involved from here?

EDO has been invited to sit on a stakeholder group to provide expert input and develop the ideas in the Interim Report.

You can Have Your Say on the Interim Report on the review website at: https://epbcactreview.environment.gov.au/get-involved.