This week, in a media release titled Stronger protection for threatened species, the Commonwealth Environment Minister officially upgraded the threat status of the Spectacled flying fox from Vulnerable to Endangered; and signed off on our first mammal to go extinct due to climate change, when the Bramble Cay melomys was moved from the Endangered category to the Extinct category on our national threatened species list. Ironically, the Minister’s pen is also now poised to co-sign “minor” amendments to an agreement that will outsource national environmental assessment and officially endorse the trajectory of biodiversity decline in NSW. We contend that endorsing extinction is not a minor administrative exercise.

By Rachel Walmsley, Policy & Law Reform Director


Spectacled flying foxes by Justin Welbergen, Wikimedia Creative Commons.

The intent to accredit new NSW biodiversity laws

At the end of 2016, NSW passed new biodiversity and native vegetation laws, which commenced in August 2017. The new laws established new processes and standards for environmental assessment, including biodiversity offsetting.

In September 2017, the former Commonwealth Environment Minister published an intent to develop a draft bilateral agreement with NSW in relation to environmental assessments, to potentially accredit these new laws (as the existing agreement accredits the former law and policy). The stated intention included to amend the classes of actions that could be exempt from national assessment requirements, and instead be assessed under the new NSW laws.

That intent to endorse new legislation and new standards has since been classified as a “minor” amendment. The website states:

Most changes reflect wording in the new NSW legislation. While the relevant parts of the legislation keep the same intent, names and numbers have changed and need amendment in the Bilateral Agreement.

This sounds like an exercise in simply updating names and numbers, but it is not. While it is true that the intent of the Bilateral Agreement remains unchanged in relation to the objective to “minimise duplication in the environmental assessment and approval processes of the Commonwealth and NSW”, it is disingenuous to claim the intent of the legislation being accredited is unchanged, given the substantial weakening of NSW biodiversity laws. The actual detail of what laws and standards are being accredited is substantially different.

What this actually means is that the Australian Government is proposing to accredit the NSW biodiversity offset scheme, which simply does not meet national standards.

By categorising the amendments as “minor”, the process can be done with less scrutiny and accountability. The “minor” amendment process avoids requirements to publish reasons for the agreement, publish a report on any comments received on the draft agreements, and undertake consultation, including a requirement to consider the role and interests of indigenous peoples in promoting the conservation and ecologically sustainable use of natural resources in the context of the proposed agreement, taking into account Australia’s relevant obligations under the Biodiversity Convention. This is significant as the Government is also quietly extending the agreement to cover Commonwealth land, which often has important biodiversity and cultural values.

Let’s be clear – accrediting processes that do not meet national standards is not a minor administrative exercise. Given the downplaying of this process – and the fact that it may only be environmental lawyers who scrutinise these agreements – it is likely that the real implications of the proposed accreditation will not be realised by local communities until the bulldozers start clearing habitat for new development.

How can the Commonwealth sign off on a policy that does not meet national standards? 

Under our national environment law – the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) – the Commonwealth can make bilateral agreements with states to accredit their processes for environmental assessment. The justification for this is to reduce duplication and increase efficiency, while maintaining high environmental standards. For example, the proponent of a project that will impact on matters of state and national environmental significance can go through a single assessment process (but will still require two approvals). The idea is that accreditation can occur where state laws meet EPBC Act standards and requirements for environmental protection.

Sounds fair enough. But unfortunately, the state law and policy that is accredited does not always meet the national standards as required. And unfortunately the Australian Government has form. It previously accredited a sub-standard offset policy, and it now proposes to endorse an even worse one.

In May 2018, after a three year freedom of information legal battle, over 60 documents – begrudgingly released on the eve of an AAT hearing on the matter – showed that the Australian Government identified significant areas where the formerly accredited NSW Biodiversity Offsets Policy for Major Projects, failed to meet the environmental standards of the Commonwealth EPBC Act. The Commonwealth Government endorsed the policy even though it had advice that it did not meet national standards.

The Commonwealth Government is now proposing to accredit even lower standards than it erroneously did under the current agreement.

Weaker standards in the new NSW laws

While there are some improvements in the new NSW laws – for example, the Biodiversity Assessment Method does establish a single consistent approach to offsetting, there is investment in private land conservation via the Biodiversity Conservation Trust, and there are some additional requirements for nationally listed matters – the new laws enshrine significant discretion for decision-makers and have reduced standards for environmental protection. For example, mine site rehabilitation decades into the future can count as an offset now; offset requirements may be discounted in favour of other socio-economic factors; and supplementary measures – such as research projects or paying money into a fund – are a readily accessible alternative to finding a direct offset (that is, protecting the actual plant or animal that has been impacted by a development). The high degree of indirect offsetting permitted is a good example of where the NSW laws diverge from EPBC Act standards.

In our expert view, it is legally questionable to pursue accreditation in the absence of significant amendment to the NSW laws to meet national standards. Our primary recommendation in a submission this week is that the Amending Agreement must not be signed until significant  amendments to NSW offset rules and regulations have been made and have commenced.

EDO NSW supports efficient and effective environmental regulation, with comprehensive guidance and upfront certainty about the rules and processes for both development proponents and communities. However, achieving efficiencies through accreditation cannot be at the expense of maintaining environmental standards. Accrediting new and unproven law and policy is much more than an administrative exercise.

We will continue to work on the next generation of biodiversity laws designed to arrest trajectories of decline, put science-based limits on offsetting and ensure development is ecologically sustainable. We look forward to a time when, with strong laws and effective recovery programs, Environment Ministers will instead be able to sign off on downgrading the threat status of our unique biodiversity.