Posted 03/05/2024 by Dr Emily Gibson
On 16 April 2024 the Minister for the Environment and Water Tanya Plibersek announced the ‘second stage’ of the Albanese Government’s Nature Positive reforms. The minister said the changes ‘will deliver stronger environment powers, faster environment approvals, and better environment information and transparency’.
The Department of Climate Change, Energy, the Environment and Water (the department) has been undertaking a staggered consultation process since late October 2023, however, the adoption of a staged approach to the introduction of legislation was unexpected by stakeholders who have been participating in that process (pp. 32, 66). While the staging of the reforms has been welcomed by some industry groups, concerns have been raised by environment and climate action advocacy groups that the fundamental reforms required to effectively protect Australia’s unique landscapes and biodiverse species and ecosystems will be walked back or not delivered within this term of Parliament.
What are the Nature Positive reforms?
The Nature Positive reforms are set out in the Nature Positive Plan: Better for the environment, better for business. They are the Albanese Government’s response to the second independent statutory review of the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The review, led by Professor Graeme Samuel, found (p. ii):
The EPBC Act is out dated and requires fundamental reform. It does not enable the Commonwealth to effectively fulfill its environmental management responsibilities to protect nationally important matters. The Act, and the way it is implemented, results in piecemeal decisions, which rarely work in concert with the environmental management responsibilities of the States and Territories. The Act is a barrier to holistic environmental management which, given the nature of Australia’s federation, is essential for success.
Professor Samuel set out 38 integrated recommendations for improving the operation and effectiveness of the EPBC Act. More recently, Professor Samuel has described the EPBC Act as an ‘abysmal failure’ and lamented that ‘nothing of any consequence’ was done with his report until 21 May 2022 (see our background paper for further context, p. 5).
In her recent announcement on 16 April, the minister referred to the establishment of the nature repair scheme and amendments to the water trigger as the first stage of the Nature Positive reforms. Notably, the government secured passage of the legislation underpinning these reforms (Nature Repair Bill 2023 and Nature Repair (Consequential Amendments) Bill 2023) with significant concessions. This included the removal of the word ‘market’ from its nature repair scheme and a prohibition on the use of biodiversity certificates for environmental offsetting purposes. The changes to the water trigger were added by amendments to the Consequential Amendments Bill in the Senate.
What is included in stage 2?
The second stage of reforms is expected to comprise a package of 3 Bills, to be introduced ‘in the coming weeks’. The Bills will:
Depending on final drafting, the Bills may also set out transitional arrangements relating to the application of the changes to already approved activities, applications made but not yet decided, and other arrangements (such as strategic assessments).
The EPA is expected to be given administrative and enforcement functions and powers in relation to the following Commonwealth environmental laws:
The compliance and enforcement provisions, and potential criminal and civil penalties, available under these Acts vary.
Each of these Acts already contains a mechanism to allow the minister to delegate all or some of their powers and functions to others, including the Secretary of the department, senior departmental staff, or inspectors.[1] Therefore, the minister may – subject to drafting – retain the ability to make relevant decisions personally, including the grant of permits for offshore carbon capture and sequestration under the Environment Protection (Sea Dumping) Act.
The government is allocating $96.6 million in new funding to engage more staff in assessment and engagement roles, deliver research into threatened species, and support regional planning in 7 previously identified priority areas in New South Wales and Queensland. This is additional to the $172.5 million allocated in the 2023–24 Budget to establish the EPA and EIA (p. 77).
What to expect in stage 3?
The minister has said the ‘Federal Government will fully deliver the third stage of environmental law reform’ as outlined in its Nature Positive Plan, and has committed to releasing ‘a comprehensive exposure draft of the new laws’ for public consultation before their introduction to Parliament. However, no clear timeframe has been provided.
The stage 3 reforms are expected to comprise:
- the repeal and replacement of the EPBC Act, inclusive of new national environmental standards, streamlining of the approvals process (including the referrals process and consolidation of accreditation requirements), and revisions to conservation planning for threatened species and ecological communities
- the establishment of revised environmental offset arrangements, referred to as ‘restoration actions and restoration contributions’
- a carve‑out of Commonwealth reserves into a separate Act, with consultations in relation to revised governance arrangements between the Commonwealth (through the Director of National Parks) and native title holders ongoing.
Further consequential amendments and transitional provisions may also be required.
The government’s reforms to Commonwealth Indigenous cultural heritage laws (principally the Aboriginal and Torres Strait Islander Heritage Protection Act 1984) are also continuing, with consultations underway. These are separate, but related to, the Nature Positive reforms.
Further information
The Parliamentary Library’s background paper describes the government’s response to the Samuel Review as at November 2023, and key commitments under the Nature Positive Plan. The Library will be preparing a detailed Bills Digest for members and senators once the Bills are introduced to the Parliament.