EDO to Give Evidence at Another Hearing into EPBC Act Amendment Bills

By Head of Policy Reform Rachel Walmsley

Today, EDO is giving evidence at a parliamentary inquiry hearing into another EPBC amendment bill – this time it is the EPBC Amendment (Standards and Assurance) Bill 2021. 

This is our third parliamentary hearing on EPBC amendment bills in recent months, and we have two more coming up.  

The bills proposed by the government continue to focus on devolving environmental approval powers to the states and territories, while the government has still not made a formal response to the 38 recommendations of Prof Graeme Samuel’s Independent Review of the EPBC Act.  

This piecemeal legislative approach that cherry picks certain recommendations is at odds with the desperately needed comprehensive overhaul of our national environmental laws that the Independent Review identified. 

Background 

The Final Report of the Independent Review of the Environment Protection & Biodiversity Conservation Act 1999 (EPBC Act) by Professor Graeme Samuel was released on 28 January 2021. 

It includes 38 recommendations and three tranches of law reform to overhaul the EPBC Act.  

The first tranche includes recommendations to establish a full suite of legally enforceable national environmental standards; an Environmental Assurance Commissioner; oversight committees; strong compliance and enforcement; bilateral agreement amendments; an Indigenous participation and engagement standard and process for reform, and a revised offset policy, amongst other recommendations. (See: ‘Trajectory Unsustainable’: 10 Key Findings of the EPBC Act Review Final Report).

The Australian Government has still not made a formal response to the 38 recommendations in the Final Report.  

Instead, there are now two government bills before parliament aimed at facilitating devolution of environmental approval powers to states and territories. (There are also three private member’s bills proposing to amend the EPBC Act that have been introduced and sent to committee inquiries). 

EDO was extensively involved in the independent review process along with other expert stakeholders, and does not support the current approach of piecemeal amendment bills, including the EPBC Amendment (Standards & Assurance) Bill. EDO does not support the interim standards proposed by the Federal Government that are simply a description of current failed settings. The proposed approach is inconsistent with the Final Report, which recommends an interrelated package of durable reforms.  

Facilitating devolution vs comprehensive reform 

The Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (Streamlining Environmental Approvals Bill) was introduced in August 2020 to facilitate the devolution of Commonwealth environmental approval powers to states and territories. It was referred to the Senate Standing Committees on Environment and Communications, which reported in November 2020. EDO’s analysis of the Bill is available in our submission to the Senate Committee.¹ This controversial Bill pre-empted the release of the Samuel Review Final Report, and has not yet passed the Senate. 

The Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 (Standards and Assurance Bill) has now been introduced in order to garner support for the Streamlining Environmental Approvals Bill. The new bill is designed to address two key recommendations of the Samuel review: to establish a power to make legally enforceable national environmental standards and to establish an Environmental Assurance Commissioner (EAC).  

While it is a critical first step to establish a power to make legally enforceable national environmental standards, the proposed requirements for quality, application and enforcement of standards are weak; and the proposed Commissioner is a far cry from the ‘strong cop on the beat’ initially recommended by Graeme Samuel’s Interim Report. As drafted, the Bill does not reflect the fundamental Samuel recommendation that national standards must be clear and consistently applied and enforced. The focus of the Bill is to facilitate devolution – ie, to have the bare minimum of business-as-usual standards and a nominal Commissioner in place – in order to justify handing over approval powers under the current framework. This is inconsistent with the Final Report that confirmed current legal settings have failed to protect the environment and specifically warned against cherry-picking certain recommendations just for the purpose of devolving Commonwealth powers to states and territories.  

In summary, the amendments proposed in the Standards and Assurance Bill do not justify support for the Streamlining Environmental Approvals Bill as they do not address all the preconditions that Samuel has recommended for determining potential accreditation of states and states and territories to make decisions consistent with legally enforceable national environmental standards.  

These crucial reforms must be done properly. Plastering a further layer of ministerial discretion and a constrained commissioner over the failed existing settings, will not achieve the foundational and structural reform needed to address the extinction crisis as identified by Professor Samuel. 

Our overarching recommendation is that the bills should be withdrawn and replaced by a comprehensive legislative package that implements Tranche 1 of reforms identified in the Final Report. Australia’s environment needs comprehensive and durable reforms that reverse the extinction crisis and deliver ecologically sustainable outcomes for generations to come.