EPBC Act reform: Are we about to fast track our way to weaker environmental standards and protections?

Environmental Defenders Office is now sitting on a consultative group convened to provide expert input and develop the ideas in the Interim Report of the review of the Environment Protection and Biodiversity Conservation Act (EPBC Act). Following our preliminary analysis of the Interim Report, we will be providing our expert view on key themes of reform in the coming weeks. As we reported, the Government is proposing to introduce amending legislation before the review has run its course, so the first theme we are examining is the devolution of Commonwealth approval powers to the states – the so-called ‘one-stop’, now promoted as ‘single touch’ approvals. 

Proposed legislation before the review concludes – why the rush?

Alongside the release of the Interim Report in late July, the federal government announced various reforms it is intending to fast track prior to the finalisation of the review process. This included these two commitments:  

• to develop Commonwealth-led national environmental standards which will underpin new bilateral agreements with State Governments; and,  
• to commence discussions with willing states to enter agreements for ‘single touch’ approvals (that is, accrediting states and territories to carry out environmental assessments and approvals on the Commonwealth’s behalf). 

Both commitments refer to the devolution of federal government responsibilities to state and territory governments via bilateral agreements – otherwise known previously as the ‘one stop shop’ policy. This is not a new concept. It has been proposed on and off since at least 2014, when the government was first unable to pass the necessary amendments through Parliament to shore up the devolution process. 

The significant reasons the devolution amendments needed to enact the ‘one stop shop’ policy have never successfully passed parliament still exist. Yet here we are again, with release of the Interim Report of the EPBC Act Review providing an excuse to resuscitate this flawed and legally risky policy, this time under the guise of economic recovery from the impacts of the coronavirus pandemic. 

The Government is intending to introduce legislation in the August sitting of parliament to quickly facilitate new bilateral assessment and approval agreements. Conversations have already begun, with state and territory governments reportedly having provided some level of support for the process in the new confidential National Cabinet process; however the level and kind of support is unclear.  

In the absence of the full suite of detailed environmental and assurance standards needed to deliver environmental outcomes under a reformed framework, a set of “interim standards” will be used to fast track the proposed devolution of powers to states and territories under the existing inadequate framework. These are two different and potentially conflicting purposes – interim standards hurriedly made and cemented in agreements now for the purpose of fast-tracking development could undermine the development of future comprehensive standards designed for environmental protection and outcomes.

Why the ‘one stop shop’ is a flawed policy

Given that previous attempts to introduce the ‘one stop shop’ stalled due to the complexity and a serious underestimation of the technical work involved in amending state standards, this proposal to fast track devolution is high risk and set to an impossible timeframe. The Interim Report has highlighted that our laws are already too weak, and interim amendments risk weakening them further.

The fact is that, devolution of the federal government’s environmental protection role to the state and territory governments is still a bad idea, for multiple reasons, including:  

• only the Australian Government can provide national leadership on national environmental issues, strategic priorities and increased consistency; 
• the Australian Government is responsible for our international obligations to protect the environment, which the EPBC Act implements; 
• State and territory laws still do not meet national standards. EDO recently gave evidence at the Senate Inquiry into Faunal extinction, where we pointed to our previous two audits of state laws that concluded no state or territory laws met the full suite of federal standards necessary to have federal powers devolved to them.  To give a specific example, state laws currently cannot even protect species as iconic as koalas – as confirmed by a recent NSW parliamentary inquiry;
• State and Territory environmental laws and enforcement processes are not always up to standard, and do not consider the cross-border, cumulative impacts of state-based decisions;
• States and Territories are not mandated to act (and do not act) in the national interest; 
• State and Territory governments often have conflicting interests – as a proponent, sponsor or beneficiary of the projects they assess; and 
• State and Territory governments would need significant resourcing assistance to take over the job (and potentially the liability) of federal government in assessing impacts to matters of national environmental significance, but no resourcing has been committed to by the federal government to take on this extra, important work.  

What’s more, and contrary to the rhetoric, due to Australia’s federal structure, the ‘one stop shop’ for environmental approvals will still actually involve a patchwork of eight different jurisdictional ‘shops.’  

The Interim Report confirms the current laws are failing and recommends strong improvements to standards under the EPBC Act, which will take time to complete. EDO is looking forward to working with the Consultation Group to develop the critical key directions flagged the interim report, for example in relation to regional planning, restoration and Indigenous engagement, as well as to scope out a robust process for developing a full suite of the fundamental environmental and assurance standards. While the proposed national environmental standards are intended to “provide a clear pathway for greater devolution”, that is on the basis that they will deliver certainty, clarity, consistency and environmental protection – they need to precede any accreditation or devolution, not trail after it. 

Australia is facing an extinction crisis. Our environment is still reeling from the bushfires exacerbating already threatened wildlife. Now is not the time to prop up a failed framework to hastily weaken our laws and abrogate Commonwealth responsibility. Rushed, ill-considered decisions now in the name of a few more development jobs are not worth the long term, potentially irreversible impacts to our precious, unique animals and land, and our sustainable recovery pathway.

We need to do this right.