By Frances Medlock, Solicitor, Commonwealth & Government Liaison, and Rachel Walmsley, Head of Policy & Law Reform
Environment Minister Tanya Plibersek has released the Federal Government’s response to Professor Graeme Samuel’s once-in-a-decade review of Australia’s national environmental laws. The response, which addresses Professor Samuel’s recommendations to modernise the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), is a good starting point, containing some long overdue reforms and positive steps forward. But there are still some gaps, and some concerning proposals which could undermine outcomes for our at-risk ecosystems and endangered animals. A lot of critical detail will need to be negotiated to ensure new laws are up to the challenge.
This legal update analyses the top 10 elements of the Minister’s announcement in the context of the climate and extinction crises, the need for rapid and effective law reform, and the importance of ensuring that our environmental laws are robust enough to protect our natural environment for years to come.
- What we need to see in 2023
The Samuel Review confirmed that the decades old EPBC Act is no longer fit for purpose, and is failing to protect the Australian environment. What is needed is a comprehensive reform to make efficient and effective laws that work.
In 2023, we need to see the proposed reforms articulated in a new climate-ready Environment Act; standalone legislation to establish a well-resourced and truly independent National Environment Protection Agency; standalone cultural heritage legislation designed by First Nations for First Nations; and a full suite of legally enforceable national standards on a range of issues including matters of national environmental significance, community participation, biodiversity offsetting, regional planning, data, and compliance and enforcement. Ensuring a safe climate and achieving the no new extinctions goal depend on a fully-resourced and comprehensive law reform package.
Our endangered species and iconic places won’t survive another decade of reviews and tinkering with broken laws. A new and ambitious legal landscape is needed to achieve the Government’s principles of ‘prevent and protect’, and ‘nature positive’ outcomes.
- Legally enforceable National Environmental Standards applied at all levels
New legally enforceable national environmental standards are the cornerstone of the reforms required to deliver environmental outcomes. EDO has long advocated for national environmental standards that are clear, legally enforceable, and provide the framework under which all other reforms are implemented.
The commitment to release of a national standard relating to matters of national environmental significance (MNES) alongside the draft legislation is supported. However, a full suite of standards must be developed and implemented as a matter of urgency, as they play a crucial role in protecting against unacceptable impacts on the environment. In particular, the standards released alongside the draft legislation next year must contain criteria for the proposed ‘red zones’, or areas of high environmental value, where development is unacceptable. Otherwise, we’ll end up in the absurd situation where all areas are open for development until the relevant standard is developed – including places critical for habitat of endangered species, or ecosystems already on the brink due to historical and cumulative impacts. In addition to the proposed standards for MNES, First Nations engagement, community participation, regional planning and biodiversity offsetting; other standards for data, and compliance and enforcement should also be prioritised.
How these standards are developed is critical, and EDO will be looking to the Government to determine an expert driven consultation process for their drafting prior to release over the next six months.
- An independent and well-resourced federal Environment Protection Agency
An independent federal Environment Protection Agency (EPA) is crucial to the effectiveness and implementation of a new environmental legal framework and we strongly support this key commitment. But a national EPA will only be effective if guided by strong national environmental standards, if it’s appropriately governed and resourced, and has a strong culture of enforcement. The best way to ensure these, and to safeguard the regulator’s effectiveness into the future, is to provide a clear legislative framework that creates true institutional independence.
Around the country, EPAs and similar regulators are governed by Boards to preserve their independence and provide strong oversight of regulatory powers, culture, strategic direction and operation. In the absence of this best practice model, we recommend strong accountability and transparency mechanisms, particularly where there is direct Ministerial appointment of the CEO. As noted in the Government’s plan, the EPA governing legislation must set out strict criteria for CEO appointments, including a clear list of qualifications, skills or experience, and statutory requirements for a public and merit-based appointment.
The Minister’s announcement confirms that a well-resourced and independent EPA staffed by experts is best equipped to make environmental assessments and project approval decisions. With an expert regulator and robust national standards, the community should be able to have confidence that decisions and conditions are being made objectively. However, it’s worth noting that the proposed changes will still give future Environment Ministers the power to ‘call in’ decisions in some circumstances, meaning some approval decisions will be made by the Minister rather than the EPA. It’s good to hear the exercise of this call-in power will require full transparency, including publication of the Minister’s reasons for calling in the project, and the decision on the approval itself. But there’s not a lot of detail about how this power will be exercised – like when a Minister can take a decision out of the EPA’s hands or what conditions must be met before this can occur. The devil will be in the detail, and we’ll continue to advocate for strict and objective criteria that constrains this Ministerial call-in power.
- Restored trust in the law: accountability and transparency
Community trust in the operation of the Act, and the functions of the new EPA, is essential for the laws to work. The Samuel Review confirmed a lack of trust in the current system and made a recommendations for restoring accountability, transparency and integrity. In addition to an establishing an independent EPA to make decisions, we welcome commitments to improved publicly available data and reporting, and retaining fundamental community rights to access information, participate in decision-making processes and seek review of decisions.
However, it is of significant concern that merits review of decisions, as recommended by Professor Samuel, has been left out of this package of reforms by the Government. Merits review provides for better scrutiny of decisions and has resulted in better environmental and social outcomes, and better decisions. EDO will continue to advocate for merits review as part of the suite of reforms to increase transparency and accountability of decisions made under the EPBC Act.
Third party enforcement – the ability of community members to enforce breaches of the law or environmental conditions – is an important part of environmental law regimes around the country. Third party enforcement mechanisms are a critical component of the package of reforms required to ‘future proof’ the new environmental law regime and EDO will support the Government in developing robust civil enforcement rights.
- Mandatory climate change considerations and requirements
The Samuel Review confirmed the inadequacy of the existing Act to address climate change, and since the Review, the outdated EPBC Act has become even more out of step with new climate legislation.
Climate change compounds ongoing and past damage to our environment, and threatens every ecosystem across the country. It can’t be separated from nature protection and should be integrated in environmental decision making at every level. In order to reach our emissions reduction target, and indeed the much greater emissions reductions task required to limit global heating to 1.5C, Australia must stop approving new fossil fuel infrastructure. But without a ‘climate trigger’ in the Act, there is no mechanism for preventing new polluting projects on the basis of their carbon emissions. While the disclosure of scope 1 and 2 emissions profiles of proposals and projects is a start, our environmental laws need a stronger legal mechanism, like a climate trigger, to prevent unacceptable carbon pollution. We need full mandatory climate impact assessment of projects, as well as comprehensive threat abatement and adaptation planning.
- First Nations empowerment
In light of the Samuel Review and the findings of the inquiry into the Juukan Gorge cave destruction,1 we strongly welcome the commitment to develop new laws to protect First Nations cultural heritage, and reiterate that this process should be led by First Nations Peoples for First Nations Peoples. This is a critical and long-over-due reform.
In addition to standalone cultural heritage legislation, related environmental law reforms need to empower and resources First Nations Peoples and communities to manage Country, and ensure full consultation and participation of First Nations Peoples and communities in environmental decision making, as recently confirmed by the Federal Court.2
- Best practice biodiversity offsetting that is ‘like for like’
Despite the general ‘nature positive’ rhetoric, the Government response in relation to the role of biodiversity offsetting (the idea that impacts of a development on threatened plants and animals can be traded off for protection of habitat elsewhere) is of particular concern. Given the significant challenges in achieving genuine biodiversity outcomes through offsetting, it should only be allowed in limited circumstances, in line with best practice science-based principles. As outlined in the Government’s plan, the mitigation hierarchy must be strictly enforced (i.e., projects must avoid and minimise impacts first and offsets are a then a last resort for unavoidable impacts), but there is currently little detail about how this will occur. Moreover, the proposed new option of making a conservation payment instead of requiring a direct offset considerably undermines the ‘like for like’ principle which should guide the creation of offsets if they are used at all.
Biodiversity offset schemes all too often simply maintain the status quo (of poor environmental outcomes) or in worst case scenarios, lock in decline. The recent review of the New South Wales scheme is a good reminder of what a poorly operating scheme looks like, as it is riddled with loopholes and lacks integrity. This is particularly concerning if the Government intends to link EPBC Act offsets to the nature repair market down the track.3 A poorly designed offsets scheme has the potential to undermine the Government’s own goal for no new extinctions. New laws and standards must recognise that not everything can be offset – some of our plants and animals are simply too precious and rare to be traded-off.
- Fixing the failure of Regional Forest Agreements
It’s positive to hear the Minister will ensure Regional Forest Agreements (RFAs) will be covered by the new national standards. EDO research, legal actions and case studies have continuously found that the RFA exemption in the Act has not adequately protected the at-risk species that live in Australian forests. It’s up to the Minister now to ensure that the application of strong national standards to RFAs is implemented quickly and consistently to best protect our forest flora and fauna.
- Addressing cumulative impacts
The Samuel Review confirmed the inability of the current laws to address cumulative impacts of multiple development decisions. To address this we welcome a range of the proposed reforms, including in relation to regional planning – noting that this must be science-based, apply the precautionary principle, define red zones to give certainty to industry, and be well resourced; and reforms to conservation planning tools. We also welcome the commitments to improved data and information and national environmental accounts to ensure we can track whether the new laws are delivering environmental outcomes and addressing cumulative impacts. A range of other reforms will also assist, including strong national standards for MNES and offsetting that include red lines, emissions disclosure requirements, and the expansion of the ‘water trigger’ to include all unconventional gas.
- Commonwealth leadership and responsibility
Finally, it’s concerning to see the revival of the controversial ‘single-touch’ approval proposal. The suggestion that environmental responsibilities be devolved to states and territories is not new and remains fraught with risk. EDO analysis has repeatedly found that without extensive changes to legal regimes at the state, territory and even regional and local levels, delegating decision making powers to states and territories will worsen environmental outcomes.4 Instead, EDO believes the Commonwealth should take a long-term leadership role to protect and enhance our unique environment for future generations and maintain decision making powers over national environmental matters. As noted, this is the best opportunity in 20 years to make critical long-lasting reform that will effectively address the trajectories of environmental decline – starting with fresh ambition and enhanced national leadership.
With ecosystems, habitats and species around the country on the brink, it’s crucial these reforms get it right – and quickly. While it’s a shame the timeframe has blown out to well over 12 months, EDO recognises the Government’s response as a good overall starting point, that must be followed by legislation in 2023. The devil will be in the detail however, and there is a lot more work to be done before we can be assured that these laws will adequately protect nature. As the Government continues to consult on these reforms and begins drafting legislation, EDO will keep advocating for best practice improvements which will protect our environment now, and into the future. This is a crucial opportunity to fix our failing environmental protection framework, and ensure that national laws truly conserve and protect our precious places for generations to come.
 A Way Forward: Final report into the destruction of Indigenous heritage sites at Juukan Gorge, Joint Standing Committee on Northern Australia 18-10-2021
 EDO Submission on the proposed Market for Biodiversity, EDO 16-9-2022