By Frances Medlock, Solicitor, Commonwealth & Government Liaison 

During the last parliamentary sitting in late June and early July, the Federal House of Representatives passed legislation to implement the second stage of the Albanese government’s Nature Positive reforms. This is an important step towards establishing a national environmental regulator, but what does it mean for our at-risk species and rapidly heating climate? This legal update examines what this legislation means for nature, what’s missing from the reform picture, and what happens next in the parliamentary process for the Nature Positive law reforms. 

Following the Minister for the Environment Tanya Plibersek’s announcement in April that national environmental law reform, including an overhaul of the broken Environment Protection and Biodiversity Conservation Act (1999) (EPBC Act), would take place in three stages, a suite of Nature Positive legislation, comprising stage two, has now been voted on in the Lower House.  

These reforms, which passed without amendment, include legislation to establish Australia’s first national environment protection authority, called Environment Protection Australia (EPA), new compliance and enforcement powers, as well as a new institution called Environment Information Australia (EIA) to manage environmental data. The bills will now go to the Senate for further debate and inquiry, and if agreed, are likely to pass the parliament before the end of the year. 

EDO has made it clear that  these delayed nature law reforms will not save koalas from extinction. We have provided detailed submissions to the parliament as part of the Senate Inquiry into Australia’s Extinction Crisis and Senate Inquiry on the Nature Positive Bills setting out our concerns and making recommendations to strengthen the proposed reform framework.  

With the bills currently under consideration by the Senate, there’s still time to make sure the stage two reforms truly deliver what’s needed to protect the threatened species and ecosystems, prevent further dangerous climate, and uphold community rights. A start would be amending the Nature Positive bills now to improve the newly created institutions and implement targeted measures in the EPBC Act to urgently protect nature. 

What has passed? 

With almost all of the nation’s environmental indicators showing declines and communities losing trust in environmental decision-making processes, there’s widespread agreement the current EPBC Act is broken and in need of fundamental reform. The extinction crisis continues on an alarming trajectory, and in the face of ever-increasing climate impacts on our precious places and wildlife, it’s clear our 1999 nature laws are woefully out of date. The three Nature Positive bills debated and passed in the Lower House last week aim to create some new institutions and start the reform process to fix this mess, but they need to be significantly strengthened to create the change nature needs. 

The Nature Positive (Environment Information Australia) Bill 2024, the Nature Positive (Environment Protection Australia) Bill 2024, and the Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024 constitute stage two of the government’s longawaited nature positive reforms. Stage two follows legislation last year that established a nature repair market and expanded the water trigger (stage one), and is intended to be followed by wholescale reforms in stage three, which will overhaul the entire EPBC Act, including the approvals and assessments regime. 

While these bills are a start, they must be amended to strengthen the new institutions and ensure they’re fit for purpose and should be accompanied by targeted amendments to close glaring loopholes and implement strong protections in our national nature law. Key areas of focus include the rampant deforestation and land clearing the EPBC Act is failing to regulate, the absence of climate considerations, including the impact of climate change on nature, as well as securing upfront protections of species and their habitat to prevent new extinctions. 

The three bills are explained below. 

Environment Protection Australia  

The Nature Positive (Environment Protection Australia) Bill 2024 creates the new Environment Protection Australia agency and appoints its CEO. The new EPA will be responsible for compliance and enforcement of a number of national environmental laws, including the EPBC Act and the Underwater Cultural Heritage Act 2018, and be directly vested with permitting powers, including in relation to the wildlife trade and offshore carbon capture and storage (under the Environment Protection (Sea Dumping) Act 1981). At this stage the Minister will retain EPBC Act assessment and approval functions but will be given the power to delegate these functions to the EPA.  

EDO has long advocated for an independent and empowered national environment protection regulator. Establishing an EPA is, in our view, a step in the right direction. However, there are some significant deficiencies in the design of the proposed EPA that potentially undermine its independence, reduce its accountability, and do not inspire confidence that it will be the “tough cop on the beat” that the government claims it will be that nature desperately needs. 

Several amendments were proposed in the parliament that would fix these problems, including: 

  • Amending the bill to ensure the EPA has a governance board responsible for setting strategic direction and appointing an independent CEO; 
  • Creating a joint parliamentary committee which has oversight of EPA functions and reports to parliament; 
  • Setting clear objects and duties to guide EPA functions, and hold it to account if needed; 
  • Making sure that EPA decisions are transparent, information is published on the EPA registers, and community views taken into account; and 
  • Ensuring the EPA has clear oversight and ensuring accountability in regards to biodiversity offsetting. 

Similarly, amendments were tabled to make sure the public has visibility of when and for which projects the Environment Minister will exercise powers to delegate approval and assessment power over to EPA. That includes when the Minister takes a decision about a project being assessed under the EPBC Act out of the EPA’s hands. The exercise of a this call-in power risks being arbitrary and politicised, and so must be constrained, or at the least transparent. 

These changes should be made to the EPA Bill to make sure it is as strong and independent as possible. It makes sense to establish the institution according to best practice now so the EPA is trusted to make environmental decisions independently, is properly equipped to undertake regulatory activities, and is accountable to the community. The amendments described above go towards ensuring this is the case. 

Environment Information Australia 

EIA, established through the Nature Positive (Environment Information Australia) Bill 2024, is a welcome reform that establishes for the first time a single national source of environmental data and statutory requirements to holistically report on national environmental data. This will include more frequent environmental reporting and building an information base to feed into decision-making. An EIA with clear functions that improve the collection, dissemination and use of environmental data will be critically important for tracking and understanding our changing environment. It is a significant new institution.  

Ensuring that nature positive is achieved requires a definition that is clear and against which progress can be measured. This is especially so given one of EIA’s primary functions will be reporting against whether Australia is on track to achieve nature positive. In line with amendments proposed during the bill’s debate, EDO recommends a definition of nature positive be adopted that sets a clear goal of halting and reversing nature loss by 2030 and achieving full recovery by 2050, using a measurable baseline of 2020.  

In addition, a notable gap in reporting obligations is a requirement to monitor and evaluate the development and implementation of conservation planning documents made under the EPBC Act, including threatened species Recovery Plans, Conservation Advices, Threat Abatement Plans and Wildlife Conservation Plans. EIA legislation should be amended to enable the proper tracking of the development and implementation of conservation planning documents, which would significantly improve transparency and accountability for the management of threatened species and their habitats. 

Environment Law Amendments and Transitional Provisions Bill 

The Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024 contains some important regulatory changes, including new environment protection orders that allow the Minister to stop work or restrict activities that pose an imminent threat of significant environmental risk or harm in urgent circumstances; increased penalties for a breach of the law; and a new compliance audit power that can be initiated by the Minister without notice to allow monitoring of compliance with the legislation. It also introduces new stop-the-clock provisions that enable proponents to have a say on whether requests for further information from the regulator to proponent will pause the timeframe for approvals or keep the clock running. 

The transitional provisions importantly set out which decision-making powers, like permitting under the Environment Protection (Sea Dumping) Act 1981, which deals with offshore carbon capture and storage; regulation and compliance functions under the Underwater Cultural Heritage Act 2018; and wildlife trade permitting under the EPBC Act, will be transferred directly to the CEO of EPA. As noted above, approval and assessment power will remain with the Minister, but be delegated to EPA in line with a delegation instrument.  

What’s missing? 

For many of our at-risk species and ecosystems, time is running out. As many as 144 new animals, plants, and ecological communities were added to our national threatened species list last year, while climate impacts continue to devastate the places the EPBC Act is intended to protect.1 Urgent action is needed to protect nature now by strengthening the two new institutions so they can be effective, and by implementing simple, targeted amendments to prevent further harm to Australia’s environment and climate. 

Ahead of anticipated stage three reforms, EDO has identified crucial gaps in the existing EPBC Act that need urgent attention and that would have immediate and tangible benefits. They would also set in place the framework for stage three, when it is implemented. Many of these changes were put forward as amendments by members of the crossbench in the House of Representatives, but none were agreed by the government. Some of those changes included: 

  • Implementing a climate trigger to ensure proposed actions with high emissions are assessed under the EPBC Act, and that actions with unacceptable climate impacts are refused; 
  • Ensuring illegal land clearing is properly assessed under the act, and that communities can ensure the EPA is considering clearing that hasn’t been properly referred for assessment; 
  • Removing the Regional Forest Agreement exemption to ensure native forest logging is no longer exempt from national nature laws; 
  • Introducing a definition of “unacceptable impact” in the EPBC Act. 

Protecting nature from climate change 

In EDO’s view, protecting nature from climate change falls squarely within the remit of our national environmental law, and should be a priority of the federal government as it works to modernise and future-proof the 1999 legislation. Comments in recent judgements have made it even clearer that it’s the role of the parliament to ensure our environmental laws are fit for purpose in relation to climate change.2 It is simply impossible to achieve a nature positive Australia without taking climate into account.3 The Nature Positive bills should be amended to ensure climate is a mandatory consideration for all new approvals, including for example by implementing a climate trigger, and that new projects that would breach our international and domestic emissions budgets simply cannot be approved. 

Stopping deforestation 

Deforestation from logging and land clearing is a key driver of biodiversity loss, while also constituting a significant source of greenhouse gas emissions. Land clearing is not directly regulated by the EPBC Act in its own right, and there’s plenty of evidence to suggest that land clearing activities are failing to be referred for federal regulation, even where they result in destruction of threatened species habitat. On the other hand, native forest logging covered by Regional Forest Agreements are explicitly excluded from the national nature law regime, leading to terrible outcomes for species that should be protected.  

It’s well beyond time that these and other loopholes, which were supposed to be transitional, were fixed. Doing so now, such as through the amendments proposed in the House of Representatives, would have real and immediate benefits for threatened species like the greater glider and swift parrot.  

Ensuring upfront protection of the places we love 

Our national environmental laws must reflect our ambition and commitments to halt extinction and reverse biodiversity decline. The threat is too urgent and risk to our native species too imminent to wait any longer. There is an opportunity now, with the stage two bills before parliament, to make some urgently needed changes to the current framework to strengthen protections for threatened wildlife.  

For example, amendments were also proposed in the House of Representatives that would introduce a definition of unacceptable impact in the EPBC Act so it’s clear when proposed actions are simply unacceptable, proponents need not apply, and there are red lines around certain types of impacts on matters of national environmental significance. This would make it clear, for example, that a proponent simply shouldn’t waste time and resources proposing an action in habitat critical to the survival of some of our most critically endangered species, including for example the swift parrot or Leadbeater’s possum, or if there’s going to be a significant impact on our Great Barrier Reef that is inconsistent with maintaining its biodiversity.  

Setting the foundation for stage three 

These amendments illustrate the kind of changes that should be implemented immediately to protect nature. There are numerous loopholes and exemptions, including around native forests and climate change, that currently exist in the EPBC Act which demonstrate that it’s not fit for purpose. The amendments listed above would have an immediate impact when it comes to protecting wildlife and at-risk ecosystems. Nature can’t wait until stage three. 

There’s also an opportunity to set the framework for further reform, given there’s no clear timeline on when the final set of legislative changes will take place. Under the Nature Positive Plan, the National Environmental Standards are intended to be legally-binding, outcomes-based instruments that will guide decision-making in the new regime. This is a significant departure from the current, highly discretionary and often arbitrary, decision-making system under the EPBC Act. To set the foundation for stage three, the legislative architecture should be set in place to enable the Minister to create National Environmental Standards as envisioned.  

What happens next? 

Debate will now take place in the Senate, and the government will need additional support from either the Coalition or the Greens for the bills to pass. Before the next parliamentary sitting, however, the bills will first go through a rapid Senate Inquiry process. The Senate Environment and Communications Legislation Committee will review the three Nature Positive bills and deliver a report by 8 August 2024. A day of public hearings has now been scheduled, allowing experts and groups an opportunity to have their say directly on how the Nature Positive bills can be improved. EDO expects to appear to provide Senators with further detail on the amendments suggested above, in line with our Submission to the Inquiry.4 

The government has committed to stage three, the wholescale reform of the EPBC Act, “as soon as possible”. Unfortunately, this has no timeline, and time is rapidly running out before the next election for the full package to get through the federal parliament. EDO would strongly support the introduction and passage by this parliament of a comprehensive package of legislation to halt the extinction crisis, restore community trust in environmental decision-making, and protect nature from dangerous climate change.  

However, in the absence of clarity about when this will occur, it is imperative the stage two Nature Positive bills are amended in the Senate. Without a truly independent and accountable EPA, a strong mandate and measurable baseline for EIA, and additional protections for nature and the climate in the EPBC Act, the goal of nature positive seems further away than ever. Amendments are already on the table that could could turn around the frightening extinction trajectory, address the climate crisis in line with our international obligations, and make a real difference for Australian wildlife. It’s up to the government to accept them.  

18 July, 2024

References

[1] The Guardian, More Australian wildlife added to threatened species list in 2023 than ever before, conservationists say (22 January 2024), The Guardian, ‘Most of it was dead’: scientists discover one of Great Barrier Reef’s worst coral bleaching events’ (26 June 2024).

[2] Environment Council of Central Queensland Inc v Minister for the Environment and Water [2024] FCAFC 56, [143].

[3] “The Australian environment faces significant future pressures, including land-use change, pollution, habitat fragmentation and degradation, and invasive species. Climate change will continue to exacerbate these impacts and contribute to ongoing decline.” Independent Review of the EPBC Act (October 2020) 41.

[4] See also, attachment to EDO’s submission that sets out specific drafting options for how these changes can be made: https://www.edo.org.au/wp-content/uploads/2024/07/Attachments-to-EDO-submission-2.pdf