By Frances Medlock, Solicitor, Commonwealth & Government Liaison, Rachel Walmsley, Head of Policy & Law Reform, Cerin Loan, Special Counsel and Rachael Chick, Senior Solicitor.

On Tuesday, the Minister for the Environment Tanya Plibersek announced the next step in national environmental law reforms, confirming a staged approach of establishing new institutions now, rather than a full package of reforms to fix the broken Environment Protection and Biodiversity Conservation Act (1999) (EPBC Act). On Wednesday, EDO gave evidence at the Inquiry into Australia’s Extinction Crisis, explaining the crucial need for comprehensive reform to fix our failed national laws and save our iconic plants, animals and places. We were asked at the inquiry whether what is proposed will stop species such as koalas from going extinct? Our answer was no. 

This legal update explains what is on the table from the Government at this stage, and what we need to see next. 

What is the latest reform proposal from the Australian Government? 

To recap, in December 2022, in response to the Samuel Review of the EPBC Act, the Albanese Government released its Nature Positive Plan setting out its commitment to reform Australia’s environmental laws. Late last year, the Government introduced a first stage of reform with legislation to establish a Nature Repair Market and expand the water trigger in the EPBC Act. 

This week Minister Plibersek announced that the next step in the ‘Nature Positive’ reforms to Australia’s environmental laws will be the imminent introduction of legislation to establish Environment Protection Australia (EPA) and Environment Information Australia (EIA). The new EPA will be responsible for compliance and enforcement of the current EPBC Act, including with the addition of some increased penalty provisions. We also understand that the Minister will have the ability to delegate approval and assessment decisions to the new body. 

This is a small step forward in progressing the full nature positive reform package, but falls far short of the comprehensive legislative reform we urgently need to see passing the parliament this year to turn around Australia’s extinction trajectory.  

The rationale for bringing forward establishment of the institutions is recognition of the urgent need for better compliance and enforcement – a ‘strong cop on the beat’ – to crack down on illegal clearing and dodgy offsets. And recognition that we need better data and information to track our progress against environmental goals.  

These are necessary elements of a functioning regulatory scheme, but will they alone save honeyeaters, curlews and skates? No.  

Without a comprehensive overhaul of the EPBC Act, the new institutions will simply be monitoring and regulating broken laws: 

  • A new EPA may mean that compliance and enforcement may be more likely to occur if habitat is illegally cleared, but that is after the fact, when the harm has already occurred. 
  • Having a State of Environment report every 2 years by the new EIA will simply document the decline and demise of our threatened species more regularly, without strong laws to actually prevent the harm occurring in the first place. 

Our primary recommendation is to urge the Government to introduce – and the parliament to pass – a comprehensive package of legislation in this term of parliament.   

The EPBC Act is 20 years old and is not fit for purpose. It is failing our environment, business and community, and time is running out to save our iconic threatened species. Legislative reform is needed now – we cannot wait another decade for another statutory review to confirm what we all know – that the national environment laws are failing.  

We commend the Government for its ambitious commitments in the Nature Positive Plan, as well as international biodiversity commitments for 2030, and we believe that nature positive is still within reach. Substantial work has been done by the reform taskforce in preparing legislative and policy drafts, and we urge the Government to finish the job they have committed to and introduce the comprehensive package this year.  

If the next stage goes ahead as proposed, we need to see the strongest possible EPA and EIA, as well as commitments and foundations laid for delivery of the full reforms. 

Environment Protection Australia  

EDO has long called for a strong, independent EPA that can make expert approval decisions, and undertake enforcement and compliance activities free of political interference. The detail of the draft legislation is not yet known, and what we have seen in the lock-ins has been high level and underwhelming. What we need to see is an EPA:   

  • Governed by a CEO appointed by, and reporting to, an independent statutory skills-based Board;  
  • Fully independent, and not subject to direction from the Minister of the day or politicised appointments;  
  • Led by clear and enforceable duties and objectives to guide decision-making and other activities;  
  • With secure and long-term funding; and  
  • Subject to robust rules ensuring transparency in all functions and decision-making.   

At the inquiry hearing, EDO tabled our report providing guidance on best practice design and implementation of Environment Protection Agencies. We urge the parliament to adopt recommendations to ensure the new national EPA is a robust, accountable, well-resourced body. See: Implementing effective independent Environmental Protection Agencies in Australia.

Environment Information Australia  

The new EIA will also be a welcome reform, as its role in aggregating and disseminating environmental information is important. It is important that information is made publicly available and can be shared and used for a range of purposes (meaning valuable data will no longer be unavailable under commercial-in-confidence barriers).   

Important work done to date on developing a national standard on Data and Information should be delivered as part of establishing the new EIA.  

Comprehensive reform urgently needed  

However, on their own these new institutions are not sufficient to turn the tide on extinctions and the climate crisis in Australia. Even with better enforcement and improved data and information, our outdated nature laws do not protect the environment. To reach the Federal Government’s goal of no new extinctions, we urgently need the full package of reforms to progress, and pass the parliament, in 2024. This includes the full suite of National Environmental Standards, better protection for at-risk species and ecosystems, and stronger community rights. We need a clear commitment from the Government that this will happen, and if this next stage of reforms goes ahead, it must establish the foundations for the final stage of comprehensive, transformative reforms. 

EDO’s written submission to the Inquiry into Australia’s Extinction Crisis identified 6 key components needed to ensure environmental law reform in 2024 will truly make a difference for the nature we love:   

  • The new environmental laws must be clear, consistent, and outcome driven.   
  • An independent EPA, with a clear statutory role and good governance arrangements, is best placed to fix the trust deficit in environmental decision-making.   
  • First Nations communities should be at the forefront of environmental and cultural heritage protection.   
  • Community consultation and engagement must be at the core of environmental decision-making.   
  • Climate change is the biggest threat to our environment, and climate considerations must be integrated into the new law.   
  • Upfront nature protection and ‘red lines’ will be crucial to protect at-risk species and ecosystems.   

We need nature positive legislation introduced and passed in this term of parliament, so that the new laws can start to protect, repair and conserve nature as soon as possible. Further delay will continue to fail Australia’s unique wildlife and ecosystems, as well as future generations. 

The law reform team at EDO will examine proposed legislation and advise on necessary amendments, and we will continue to work with clients, scientists, members of parliament and the reform taskforce to make sure the full reform package is delivered.