Moments before the House of Representatives was due to adjourn last night, the Government used its majority to ram through a controversial Bill devolving environmental approval responsibilities to states and territories.

Debate was gagged, voting on amendments was prevented, and no Government MP even spoke in support of the rehashed Tony Abbott Bill.

This was a very low point for environmental democracy in Australia, and the stifling of debate has been roundly criticised.

The high risk Bill will now go the Senate when parliament resumes for Budget week on 6 October, where there will be continued efforts to send the Bill to an inquiry for the scrutiny so desperately needed.

Meanwhile, the Independent Review of the Act is still underway, with discussions of the necessary reform architecture at a critical point.

An independent review versus a fast-track Bill

As predicted in one of our previous updates on the EPBC Act reform process, Are we about to fast track our way to weaker environmental standards and protections, the Australian Government has introduced legislation to devolve environmental approval responsibilities to states and territories. As feared, the fast track Bill is a rehash of Tony Abbott’s 2014 ‘one stop shop’ Bill that was defeated in the Senate at that time due to its inherent environmental risks. Concerningly, this new Bill is being pushed through parliament before the anticipated 10-year review of the EPBC Act by Graeme Samuel is finalised (the final report is due in October 2020).

We note that the political process of the Bill is separate to the Independent Review process, but the real potential for the Bill to undermine the outcomes of the Review cannot be ignored.

While the Government seems intent on using parliament to preempt the Independent Review process, EDO is continuing to work on reforms we actually need. This update compares the approach of the Bill in reducing federal responsibility with what is actually needed to increase accountability for the environment and to ensure that national standards are enforced at multiple levels.

EPBC Amendment (Streamlining Environmental Approvals) Bill 2020

The EPBC Amendment (Streamlining Environmental Approvals) Bill 2020 that was rammed through the House of Representatives last night has exposed the significant risks of rushing devolution in the absence of standards and assurance. The Bill fails to include key elements for reform suggested in Graeme Samuel’s Interim Report. Specifically, there is no mention of national environmental standards, even though this is suggested as a critical foundation of reform in the Interim Report (as noted in our last update Can national standards save our environment?) The Bill also has no mention of an independent compliance and enforcement regulator or assurance standards (ie, mechanisms and safeguards to ensure that processes, policies and standards are implemented as agreed).

Basically, the Bill is designed to shore up the devolution process by broadening the list of state and territory policies and processes that can be accredited (potentially including local government), devolving assessment requirements in relation to water impacts of large coal and coal seam gas projects (the ‘water trigger’), and reducing parliamentary scrutiny of changes to accredited processes under approval bilateral agreements.

Passage of the Bill at this time cherry picks the high risk option for dubious ‘efficiency’ reform while potentially undermining implementation of all the other important reforms flagged in the Interim Report for environmental outcomes – including comprehensive reform across a range of areas, including restoration, indigenous engagement, environmental markets, data and regional planning.

It would be a missed opportunity for the main outcome of the Review to be the locking in of current inadequate requirements in the name of efficiency, without actually galvanising the necessary legislative reform to achieve environmental outcomes.

In this context we recommend the Final Report of the Independent Review (due on October 31) provide significant detail on the two pillars of national environmental standards and assurance, compliance and enforcement – and identifies the full suite of comprehensive reform needed – as legislative preconditions to any devolution. This is the only way to ensure that the Review results in effective and enduring reform to deliver efficiency and environmental outcomes.

The two key pillars of reform: national environmental standards and compliance, enforcement and assurance

In terms of the elements of reform identified in the Interim Report needed to address our environmental crisis, there are two fundamental pillars. The first is comprehensive and enforceable national environmental standards and the second is independent assurance, compliance and enforcement. Our last update looked at the detail of what national environmental standards should cover, and this update examines compliance, enforcement and assurance.

No level of devolution should be allowed to proceed without the two pillars being established in a new and comprehensive Environment Act.

Compliance, enforcement and assurance

For the proposed system of national standards to work, it will be necessary to ensure there is a robust framework involving independent compliance and enforcement regulators with a full suite of powers established and resourced at both the national and state levels – and that their roles are clearly defined and coordinated to avoid any duplication. This requires establishing assurance auditing responsibilities at the national level, but also requires coordinated compliance and enforcement of national standards at multiple levels.

It will not be sufficient for the Commonwealth to simply do assurance audits of overall outcomes of broadly accredited schemes – this is too blunt a tool. For the community to have confidence in the system, there needs to be actual enforceability of standards involving a clear line of sight from national level legislation down to individual project conditions. The full suite of national standards needs to be in place for effective implementation at all scales.

EDO supports an independent regulator at the Commonwealth level having clear powers to audit accreditation, assessment, approval, planning processes and decisions made at any level for compliance with national environmental standards. This is critically important. However, it will be insufficient if the only recourse linked to such an auditing power is to recommend to a Minister to exercise discretionary call in powers, or exercise a power to suspend accreditation (this power is extremely unlikely to be exercised even with evidence of significant and consistent breaches, as the Regional Forests Agreement model has demonstrated). Insufficient and ineffective assurance mechanisms will diminish the power of national standards, undermining the foundation of the reforms suggested in the Interim Report.

Sufficient assurance requires an independent body at the national level to do both auditing of assessment and approval processes and decisions and any accredited regimes, but also be empowered to take specific compliance and enforcement action in relation to specific breaches – with a full suite of compliance and enforcement powers.

Assurance that devolved decision making processes will enforce national standards?

There is an alarming lack of assurance under the proposed devolved framework. It is assumed that the accreditation process will be rigorous, however the Bill currently before parliament does not guarantee this. For example, it allows accreditation of policies not set out in law, not even written yet, and removes oversight of parliament (by removing  disallowance mechanisms) for a number of determinations. The Bill reduces oversight of minor changes to state laws that may impact environmental outcomes at the project level.

To give actual assurance, a framework needs to have independent compliance capacity at the federal and state levels, proper public and parliamentary scrutiny, and clear consequences for breaches.

If a devolved system proceeds, there would need to be independent regulators at the state and territory levels empowered to effectively enforce national standards (for example – at the project level through conditions), in addition to the national independent regulator enforcing standards (for example – for existing approvals, Commonwealth approvals, certain categories of accredited approvals, and for called-in approvals). There are models that can be drawn upon to establish bodies equipped with the independence and powers to effectively enforce standards. For example, the Natural Resource Access Regulator (NRAR) in NSW was established by statute following an independent review of water management in NSW and has already changed the culture of water law compliance and enforcement in NSW.

Further, if the devolution agenda continues on the current high risk trajectory and even includes potential accreditation of local level decision-making processes, the assurance framework will need to extend to local levels. This is a significant oversight risk with additional resource and liability implications.

It is insufficient to have monitoring and reporting of devolved responsibilities if it is not comprehensive at all levels, and if there is no real regulatory power to act on breaches or political will to revoke accreditation.

The proposed devolution model is very high risk – and all the risk is borne by the environment.

In summary, a risky Bill rammed through parliament to abrogate federal environmental responsibility is the exact opposite to the comprehensive and evidence-based reform needed to address our environmental decline and extinction crisis.

We reiterate that in terms of the architecture of the reform needed, comprehensive and enforceable national environmental standards and independent assurance, compliance and enforcement are the two fundamental pillars. It has become clear that no level of devolution can proceed without the two pillars – and a comprehensive range of reforms – being established in a new and enforceable Environment Act. EDO will continue contributing expert input to the Independent Review Consultative Group and to urge the Final Report to make this clear.