Breellen Warry, Partner; Katharine Huxley, Associate; and Olivia Lawrence, Graduate, at Holding Redlich share an update into recent reforms to the Environment Protection Biodiversity Act 1999. They explore what has happened so far and what to expect in the future.
Introduction
In the midst of COVID-19 and some of the greatest environmental challenges Australia has experienced, including the recent bushfire season, in August 2020, the Federal Government introduced the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (Bill), which fell under heavy scrutiny from opposing parties and community stakeholders.
The Bill follows a lengthy statutory review of the Environment Protection Biodiversity Conservation Act 1999 (EPBC Act) and has proven to be very controversial, attracting opposition and criticism.
In this article, we look at the proposals outlined in the Bill and the recent developments in the review of the EPBC Act, including the recent recommendations of the Senate Environment and Communication Legislation Committee (Committee) inquiry into the Bill.
Review of the EPBC Act
The Bill was initially introduced on 27 August 2020, shortly after the release of an interim report produced as part of the independent statutory review of the EPBC Act led by Professor Graeme Samuel (Interim Report).
The Interim Report was released on 20 July 2020, and set out proposals for the reformation of the EPBC Act. Professor Samuel noted “The foundation of the (interim report) was that there is too much focus on process and not enough focus on outcomes and that should be changed entirely”.
Professor Samuel also noted that:
“My interim view is that the EPBC Act does not position the Commonwealth to protect the environment and Australia’s iconic places in the national interest. The operation of the Act is dated and inefficient, and it is not fit to manage current or future environmental challenges, particularly in light of climate change.”
A key issue therefore highlighted in the Interim Report is that the EPBC Act lacks the ability to address complex environmental issues and environmental crises. The Interim Report suggests that serious reform is needed, including the introduction of new National Environmental Standards (NES) as the basis of a consistent and efficient system. The key recommendations include:
- that the Commonwealth should continue to focus on existing areas of responsibility with no expansion to regulate new environmental matters;
- new, legally enforceable NES should be established to deliver ecologically sustainable development, focused on outcomes rather than process;
- streamlining and greater efficiency through devolution to State and Territory governments in a way that provides community confidence, with NES as the foundation to set the outcomes needed regardless of who the decision maker is;
- strong and transparent assurance to ensure devolved decisions deliver the intended outcomes
- review of Australia’s Indigenous cultural heritage laws, as well as more work to support better engagement with Indigenous Australians and to respectfully incorporate Traditional Knowledge of Country into how the environment is managed;
- build trust in the system through increased transparency of information and decision-making to reduce the need to resort to court processes to discover information;
- establishing a coherent framework to monitor and evaluate the effectiveness of the EPBC Act, including revamped State of the Environment reporting; and
- an independent compliance and enforcement regulator that is properly resourced and has a full toolkit of powers, and is not subject to actual or implied political direction.
Professor Samuel’s Final Report, including recommendations to Government, (the Final Report) was delivered to the Minister for the Environment on or around 30 October 2020, however it has not been made available to the until 28 January 2021 (a matter which was raised repeatedly in objection to the Bill).
The Bill
The Bill proposes that the powers under the EPBC Act be devolved to the States and Territories by way of bilateral agreement. Surprising to many, however, was the exclusion of the NES framework, proposed in the Interim Report and generally welcomed by stakeholders. While devolving powers to the States and Territories was recommended in the Interim Report, the recommendation was that this should only take place with provision for NES and an independent regulator as safeguards, neither of which appear in the Bill.
Independent Zali Steggall introduced proposed amendments to the Bill, including the requirement for the Minister to make NES and be satisfied of consistency with the NES before making a number of decisions under the EPBC Act (the Steggall Amendment). The Steggall Amendment can be found here. The Steggall Amendment was not discussed during the parliamentary debate however and the Bill was passed by the lower house, unamended.[1]
Bilateral Agreements
It is proposed that bilateral agreements will operate to allow States and Territories to assess and determine approval of projects. The Bill also provides a power to the Commonwealth to step in and make a decision where a State or Territory has left an assessment, if there is a partially completed assessment, or if a bilateral agreement is suspended or cancelled.
The Bill also seeks to remove the ‘water trigger’ prohibition, and in doing so will allow for bilateral agreements enabling States and Territories to approve actions which fall under this trigger.
In addition, the Bill includes amendments to increase the flexibility around assessment and approval processes under bilateral agreements. This includes provision for minor amendments to assessment and approval processes without the requirement for a new bilateral agreement.
Matters not addressed in the Bill
Notably:
- There is no “climate change trigger” in the Bill despite discussion in the Interim Report of a broad based approach to climate change and lowering GHG. The Steggall Amendment proposes that climate impacts on matters of national environmental significance may be provided for in the NES.
- Indigenous heritage and culture was highlighted as a priority in the Interim Report, however the Bill does not propose any changes in this regard. The Steggall Amendment similarly proposes that Indigenous engagement and involvement in environmental decision-making may be provided for in the NES.
- There is no proposal for an independent regulator in the Bill.
Senate Environment and Communications Legislation Committee Inquiry
On 12 November 2020 the Senate received the Standing Committee for the Selection of Bills’ recommendation that the Bill be referred to the Committee for inquiry. It was referred for inquiry into “its potential impact on the environment, and its relationship to the ongoing Samuel Review of the Environment Protection and Biodiversity Conservation Act 1999”.[2]
Environmental organisations including the Environmental Defenders Office (EDO), World Wildlife Fund, The Wilderness Society, the Humane Society International, Birdlife Australia, and Australian Conservation Foundation made submissions to the Committee opposing the Bill.[3] A copy of the submissions can be found here. On 23 November 2020, the Committee held a Public Hearing where a number of these groups made further oral submissions to the Committee.
Many groups raised environmental concerns. The Australian Conservation Foundation, for example, submitted that:
“The legislation before the senate does not address any of the key failings in our environmental law. Rather it exacerbates them.”
Further, many of the submissions expressed concerns that the Parliament did not consider the recommendations in the Interim Report and that the Bill did not provide for the creation of NES.
Labor Senators and Greens Senators both released dissenting reports to the Committee. Both reports raised concerns over environmental management and conservation under the proposed Bill. For example, the Greens Senators dissenting report states “this Bill does nothing to prevent further decline, decrease threats or reverse the current unsustainable environmental trajectory”.
The Committee’s Recommendations
On 27 November 2020, the Committee released a report (Committee’s Report) which recommended that:
- … the Explanatory Memorandum be amended to clarify that bilateral agreements made with jurisdictions under the provisions of the bill will be underpinned by strong Commonwealth-led National Environmental Standards.
- … the Senate pass the bill.
(Recommendations)
In making the Recommendations, the Committee considered whether the Bill was consistent with the reform pathway set out in the Interim Report in that, at first instance, amendments should:
- “fix duplication, inconsistences, gaps and conflicts;
- enable National Environmental Standards to be made; and
- improve the durability of the setting for devolved decision making”
The Committee recognised the Bill as a “first tranche” of reform, and that the bilateral agreements would significantly reduce the “duplication, inconsistences, gaps and conflicts between Commonwealth and jurisdictional frameworks”.[4]
The Committee’s Report also states that “environmental groups generally recognised that the EPBC Act is failing to achieve environmental protections and supported the Interim Report’s ‘proposed pathway’, even if they opposed the bill currently being inquired into”.
The Committee’s Report addresses the concern raised in a number of submissions about the omission of provision for NES, and notes that:
“…the Government has committed to developing robust National Environmental Standards and embedding these as a foundation of any bilateral agreements made subsequent to the provisions of this bill”.[5]
In relation to concerns raised regarding the ‘water trigger’, in particular the concerns of accrediting a State or Territory to approve mining or coal steam gas projects, the Committee noted that there will be ‘robust NES’ which will ‘maintain strong environmental standards’.
A copy of the Committee’s Report can be found here.
What next?
As demonstrated by the Committee Report and the dissenting reports prepared by Labor and Greens Senators, the Bill is controversial. Nevertheless, the Bill has been recommended by the Committee to be passed by the Senate into law.
The Final Report makes 38 recommendations for the reform of the EPBC Act, and sets out a 2 year plan for the completion of the revisions to the EPBC Act. It states that:
“National Environmental Standards should be made immediately in early 2021, supported by reforms to implement an independent Environment Assurance Commissioner, expert advisory committees, transparent decision-making, access to data and information, strong independent compliance and enforcement, effective monitoring and evaluation, access to justice and exploring investment in restoration. Comprehensive enabling reforms should be completed within 12 months. A full overhaul of the EPBC Act should be completed by 2022.”
The Final Report contains a set of Recommended NES. Four of the nine recommended NES have been developed in detail, and purportedly in consultation with science, Indigenous, environmental and business stakeholders. The detailed NES are for:
- matters of national environmental significance
- Indigenous engagement and participation in decision-making
- compliance and enforcement
- data and information.
The Final report recommends that the detailed NES be adopted in full, with the remainder of the suite of Standards to be developed without delay and implemented immediately.[6]
It now remains to be seen whether the Bill will be passed (including having regard to the recommendations in the Final Report) and whether the recommendations in the Final Report will be adopted.
A full of copy of the Bill and Explanatory Memorandum can be found here.
[1] Commonwealth, Parliamentary Debates, House of Representatives, 3 September 2020, 6522–6548; 6605–6620.
[2] Senate Environment and Communication Legislation Committee, Parliament of Australia, Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (2020) [1.3].
[3] Senate Environment and Communication Legislation Committee, Parliament of Australia, Submissions Received by the Committee for the Inquiry into the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/StreamliningEnviroApp/Submissions>.
[4] Senate Environment and Communication Legislation Committee, Parliament of Australia, Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (2020) [2.77].
[5] Senate Environment and Communication Legislation Committee, Parliament of Australia, Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (2020) [2.37].
[6] Appendix B, Final report.
Breellen Warry is a Partner within the Property and Projects team and specialises in environmental, development and planning and natural resources law. Breellen advises both private and public sector clients across various industries on planning, environment and government matters and has worked both within and for government agencies in NSW and in the UK. You can connect with Breellen via email or LinkedIn
Connect with Katharine Huxley via LinkedIn
Connect with Olivia Lawrence via LinkedIn
