The Act commenced on 16 July 2000. However,
successive 10-year statutory reviews (the first in 2009 – the Hawke
Review and the second in 2020 – the Samuel Review) have found that the EPBC
Act is failing to achieve its objects, ‘does
not enable the Commonwealth to effectively protect environmental matters’,
and is not fit to address current or emerging environmental challenges. In
addition, numerous
other inquiries have found that the administration of the EPBC Act has
been inefficient and ineffective. The Act is perceived
as complex and costly by project proponents, and lacking transparency and
opportunities for meaningful input by community and environment-oriented
stakeholders.
The Morrison Government introduced 2 Bills seeking to streamline
the environmental approvals process, establish National Environmental Standards
consistent with the current operation of the Act and establish an Environmental
Assurance Commissioner (see below). However, the first Bill was seen as pre-empting
the findings and recommendations of the Samuel Review (Bills
digest, p. 3), while the second Bill was criticised as ‘cherry
picking’ select recommendations rather than providing a fulsome response (Bills
digest, p. 15).
The incoming Albanese Government promised to provide a full
response to the Samuel Review and establish an independent Environment Protection
Agency. Moreover, its December 2022 Nature positive
plan: better for the environment, better for business (Nature Positive
Plan (NPP)) was pitched by the Hon Tanya Plibersek, the Minister for the
Environment and Water, as ‘a
win-win: a win for the environment and a win for business’.
With a package of legislation, comprising 4 bills, now expected
to be introduced to the Parliament in early 2024, this paper summarises the 38 recommendations
of the second
independent review of the EPBC Act (the Samuel Review) and the government’s
response to date, as described in its Nature Positive
Plan. It also describes subsequent developments or further information
available regarding the implementation of the government’s response.
The EPBC Act establishes 9 matters of national
environmental significance (MNES; ‘protected matters’), largely drawn from
Australia’s international obligations under a range of environmental and
heritage treaties. The protected matters are:
The Act requires 10-yearly independent reviews of the
operation of the Act and the extent to which its objects have been achieved
(section 522A).
The first statutory review of the EPBC Act was commissioned
by the then Minister for the Environment, the Hon Peter Garrett AM, and commenced
on 31 October 2008 with the release of a Discussion
paper. The review was led by Dr Allan Hawke AO, with the
support of an expert panel comprising the Hon Paul Stein AM, Professor Mark
Burgman, Professor Tim Bonyhady AM, and Rosemary Warnock. The review
is commonly referred to as the Hawke Review.
The second statutory review of the EPBC Act was announced by
the then Minister for the Environment, the Hon Sussan Ley, and commenced
on 29 October 2019. The review was led by Professor Graeme
Samuel AC, with the support of an expert panel comprising Bruce Martin, Dr Wendy
Craik AM, Dr Erica Smyth AC, and Professor Andrew
Macintosh. The review is commonly referred to as the Samuel Review.
Professor Samuel cautioned the government against
cherry picking from the report’s highly‑interconnected recommendations (p. iii),
and considered anything less than fundamental reform of the Act unacceptable.
The Senate Environment and Communications Legislation
Committee held inquiries into both Bills. The Committee recommended that both
Bills be passed, the first with an
amendment to the Explanatory Memorandum clarifying that bilateral
agreements made with states and territories will be underpinned by
Commonwealth-led NES, and the second with amendments to require a review of
interim NES within 2 years of commencement and to provide for sunsetting of
interim NES. However, the Australian Labor Party and Australian Greens provided
dissenting reports to both inquiries, recommending that the Bills not be
passed, as did the Senate crossbench to the first Bill and Senator Rex Patrick
to the second Bill. The then government’s
response to the 2 inquiry reports states that moving to single-touch
environmental approvals and the development of NES were agreed to by
National Cabinet in December 2020.
Both Bills lapsed on the prorogation of the 46th Parliament.
On 19 July 2022, the new Minister for the
Environment and Water, the Hon Tanya Plibersek, released the 2021 State of the environment report
(2021 SoE Report) which documented the continuing
decline in Australia’s environment. In her speech, the minister
committed to providing a formal response to the Samuel Review by the end of
2022, with the aim of developing new environmental legislation for 2023 (p. 9).
The minister also committed to developing standalone cultural heritage
legislation, to be co-designed with the First Nations Heritage Protection
Alliance (FNHPA) (p. 12).
The Parliamentary Library’s Environment Budget Review papers
provide details of relevant funding committed in the October 2022–23
and May 2023–24
Budgets.
In the remainder of this paper, we provide a comparison of
the government’s response to the Samuel Review’s recommendations. This response
is:
There is currently some concern about the timing of passage
of legislative reforms to the EPBC Act, with the Coalition indicating they haven’t
been consulted and the Australian Greens not expecting the bills to reach
the Senate until
at least September 2024.
On 19 September 2023, it was reported that the minister had
said a draft version of the major legislation would
not be released before the end of 2023, and would be tabled in the
Parliament in February or March 2024. However, at Senate Estimates on 23
October 2023, departmental officials were
not able to confirm when an exposure draft of the legislation (comprising 4
separate bills) will be publicly released, or the timing of the introduction of
the bills to the Parliament (pp. 90, 94).
Samuel Review
recommendations |
Government response, Nature
Positive Plan (NPP) |
Additional information |
1.
|
Matters of national
environmental significance (MNES) should be focused on Commonwealth
responsibilities for the environment: (a) water MNES should be amended to
apply only to cross‑border water resources; (b) regulatory arrangements
for nuclear MNES should be aligned with those of Australian Radiation Protection
and Nuclear Safety Agency (ARPANSA) (p. 48).
|
The government will amend
the water trigger to ensure appropriate management and protection of water
resources from all forms of unconventional gas.
The scope of the Independent
Expert Scientific Committee on Coal Seam Gas and Large Coal Mining
Development will be broadened to enable all states and territories to access
independent expert advice.
The government will
harmonise regulatory requirements and codes with the ARPANSA’s standards (p. 15).
|
The proposed amendment to
the water trigger (expansion to all forms of unconventional gas) is not
consistent with Recommendation (Rec) 1. The expansion of the scope of the
water trigger was, however, recommended by the Scientific inquiry into hydraulic fracturing in the
Northern Territory (the Pepper
Inquiry) (Rec 7.3, p. 118).
On 15 May 2022,
the minister confirmed that ‘the extension of the water trigger would be part of the package of environmental laws’
put before the Parliament (p. 4).
|
2.
|
National Environmental
Standards (NES) recommended by this review should require development
proposals to: (a) explicitly consider the likely effectiveness of avoidance
or mitigation measures on nationally protected matters under specified
climate change scenarios, and (b) transparently disclose the full emissions
of the development (p. 48).
|
The government will
require reporting of estimates of emissions expected to be generated as a
result of the activity (Scope 1 emissions) and those from the indirect
consumption of an energy commodity (Scope 2 emissions) and related management
actions over the life of the project (p. 14).
Project proponents will be
required to disclose how their project aligns with Australia’s national and
international obligations to reduce emissions (p. 2).
The changing climate will
be a mandatory consideration in environmental planning approaches (for
example, regional and conservation planning) (p. 2).
The NPP states that the Threatened
Species Scientific Committee will provide advice in 2023 as to whether a
Threat Abatement Plan for the key threatened process ‘Loss of climatic habitat caused by anthropogenic
emissions of greenhouse gases’
would be a feasible, effective and efficient way of addressing threats from
climate change (p. 15).
|
On 8 December 2022, the minister
said, ‘we support the Samuel’s recommendation that proponents of large projects be required to
publish their lifetime, domestic carbon dioxide emissions. Proponents will
also be required to disclose what they will do to manage or offset their
emissions, in line with Australia’s climate targets’ (p. 11). However, this will not extend to scope 3 emissions which are indirect emissions generated in the wider
economy (p. 3).
The minister said, ‘our goal is to integrate climate considerations into national environmental law, without
duplicating existing policies for reducing greenhouse gas emissions – such as
the safeguard mechanism’ (p. 11).
In April 2023, as part of the government’s safeguard mechanism reforms, amendments
to the Climate Change Act 2022 require the Minister for the Environment to notify
the Minister for Climate Change and Energy, the Climate Change Secretary and
the Climate Change Authority of the approval under the EPBC Act of an action,
or expansion of an existing controlled action, which is or is likely to
result in an increase in scope 1 emissions of an existing, or a new, designated
large facility. This may trigger a reconsideration of whether the safeguard
emissions and net safeguard emissions are declining consistently with the safeguard
outcomes specified in section 3 of the National Greenhouse and Energy Reporting Act 2007.
|
3.
|
The EPBC Act should be
immediately amended to enable the development and implementation of legally
enforceable NES. Activities and decisions made by the minister, or those
under an accredited arrangement, should be consistent with NES. The Act
should provide a specific power for the minister to exercise discretion to
make a decision that is inconsistent with MNES (p. 53).
|
The government will
introduce legislation to establish standards in 2023 (p. 11); this will
include a process for making, implementing, and reviewing standards
(p. 37).
The initial NES will be:
-
matters of national environmental
significance
-
First Nations engagement and
participation in decision-making
-
community engagement and
consultation
-
regional planning
-
environmental offsets.
Once the EPA and Data
Division are established, subsequent NES will be:
-
data and information
-
compliance and enforcement
(p. 12).
The legislation will
specify that no standard can be amended to reduce environmental protection,
only improve it (p. 11).
The independent EPA
will apply standards and ensure compliance with conditions of approval. The Data
Division will provide assurance that the objects of national environment
law and outcomes of the NES are being achieved (p. 37).
|
At Senate Estimates on 9
March 2023, departmental officials indicated the NES would be legislative instruments made under an Act that gives the minister the power
to make the standards; compliance with the standards will be monitored by the
EPA (p. 25).
At Senate Estimates on 23
May 2023, departmental officials said development of NES ‘involves a significant consultation program and drafting program that we expect to happen over
the course of the next two years as we move this year towards releasing the
package for consultation’ (p. 60).
A targeted working group (20 members)
and a broader reference group (50 members) were formed in early 2023 to develop the standards.
|
4.
|
Parts 3 to 10 of the EPBC
Act should be completely overhauled to deliver more effective environmental
protection and management, accelerate achievement of environmental outcomes
and improve the efficiency of the application of NES to decision-making (p.
54).
|
The government will ensure
statutory decision‑making is in line with the NES (p. 37).
|
See Rec 3 in regard to
establishing NES.
In an interview on 15 May 2023, the minister indicated that a package of
legislation would be released as exposure drafts in the second half of 2023,
for introduction to the Parliament at the end of 2023 or the beginning of
2024.
At Senate Estimates on 23
October 2023, departmental officials could not confirm when the package of bills would be introduced (pp. 90 & 94).
According to departmental
officials, there will be 4 bills: the first repealing and replacing the EPBC
Act, a second establishing Environment Protection Australia, a third separating
out the Commonwealth national parks provisions, and a fourth providing
transitional and consequential provisions.[1]
|
5.
|
The EPBC Act should
require decision-makers to respectfully consider Indigenous views and
knowledge: (a) the Indigenous Advisory Committee (IAC) should be replaced
with the Indigenous Engagement and Participation Committee, with a specific
mandate of refining, implementing and monitoring the NES; (b) the NES for
Indigenous engagement and participation in decision-making should be adopted;
(c) the Act should be amended to require the minister to transparently
demonstrate how Indigenous knowledge and science is considered (p. 66).
|
The NES for First Nations engagement
and participation in decision-making will be co-designed with the IAC as a
priority.
The government will engage
with First Nations peoples as part of overall reforms to co-design standalone
cultural heritage legislation and incorporate and protect First Nations data
and knowledge (p. 38).
The government will work
to develop a strategic, effective, meaningful and culturally informed
approach to inclusion of First Nations knowledge in listing assessments,
conservation planning and threat abatement for species and ecological
communities. It will also consider how species of cultural significance are
considered in environmental and heritage protection processes (p. 14).
|
The IAC was
established in 2000 under the EPBC Act. It is an advisory body and generally
not a consultative mechanism, however that may be requested at times.
On 29 November 2021, the Australian Government entered into a Partnership Agreement with the First
Nations Heritage Protection Alliance
(FNHPA) in relation to the modernisation of Indigenous cultural heritage
protection. Announcing the agreement, the minister said, ‘[t]his partnership establishes
a joint working group of government and alliance representatives ... [which]
will consult widely with industry, with the community, with the states and
the territories, and importantly, with Indigenous Australians to develop
options on the reforms that are required’ (p. 2).
Stage 1 consultations ran from March to June 2022 (see the Implementation plan, Stage 1 discussion paper). A Stage 1 directions report and Options paper informed Stage 2 consultations in late 2022 and early 2023.
The Options paper outlines
3 options:
-
overarching federal standalone
legislation and repeal of the Aboriginal and Torres Strait Islander Heritage Protection
Act 1984 (ATSIHP Act)
-
federal accreditation of state
and territory legislation where mandatory national standards are met, and
repeal of the ATSIHP Act
-
‘model’ legislation, and
exemption from the operation of the ATSIHP Act once enacted.
On 24 November 2022, the minister and the FNHPA extended and expanded the Partnership Agreement ‘to work in a genuine co-design partnership ... to reform our cultural heritage laws’. The Partnership
Agreement proposes finalising ‘a recommendation to the Minister for
comprehensive stand-alone legislation to better manage and protect First
Nations cultural heritage’ by 30 May 2023 and developing a plan to
conduct further ‘consultation on policy and implementation detail from April
to December 2023’ (p. 3). The agreement runs to
30 June 2024.
Relatedly, in
February 2023, the DCCEEW released the Interim Engaging with First Nations People and
Communities on Assessments and Approvals under the Environment Protection and
Biodiversity Conservation Act 1999
to assist project proponents in understanding statutory obligations and the department’s
expectation of proponent’s engagement
with First Nations people and communities under the EPBC Act.
|
6.
|
The department should take
immediate steps to invest in developing its cultural capability to build
strong relationships with Indigenous Australians and enable inclusion of
their knowledge (p. 66).
|
The department is taking
immediate steps to develop the cultural capability of its staff (p. 38).
|
In May 2023, the department established a First Nations Branch to, among other things, support the cultural
capability of staff (pp. 12 and 101).
|
7.
|
The government should
commission an immediate comprehensive review of national-level cultural
heritage protections and draw upon best practice frameworks (p. 70).
|
The government will work
with the FNHPA to co‑design standalone First Nations cultural heritage
legislation (p. 38).
|
The government has
expressed a commitment to introduce standalone cultural heritage legislation
(see the minister’s National Press Club Address, p. 12; Senate Estimates, p. 47).
See Rec 5.
|
8.
|
Through the Director of
National Parks, the government should immediately commit to working with
Traditional Owners to co-design reforms for joint management (p. 72).
|
The government and the
Director of National Parks will work with Traditional Owners to review the
role, function and purpose of the Director of National Parks, including
consideration of new legislative models that allow for more direct management
of Commonwealth National Parks by Traditional Owners (p. 38).
Reforms will include
changes to the legislative approach to support the creation and management of
other Commonwealth Reserves and potential updates to the legislative and
regulatory framework creating zoning definitions for Australian Marine Parks
(p. 33).
|
The Director of National Parks corporate plan 2022–23 includes ‘[i]mproving Joint Management partnerships
with Traditional Owners in our jointly managed national parks’ as a cross
cutting key activity (p. 32).
The government has
committed to doubling the number of Indigenous Rangers by the end of the decade to 3,800 (p. 12).
|
9.
|
Immediate amendments
should be made to the EPBC Act to align it with modern, best practice
drafting guidance and to implement the NES, bilateral agreements and
independent audit and oversight mechanisms (p. 80).
|
The government will
improve the legislative framework to make the new Act easier to understand
and work with, and enable the establishment of NES, the EPA and regional
planning (p. 38).
|
Sec Rec 4 in regard to the
timeframe for the introduction of new legislation.
See Rec 3 in regard to
establishing NES.
|
10.
|
The EPBC Act should be
comprehensively reworked to fully implement the reforms recommended by the review
and deliver an effective legislative framework, including a redraft and
restructure of the Act to remove inconsistency with other Commonwealth
legislation and improve operational efficiency. This may involve creating
separate pieces of legislation for the key functional areas covered by the EPBC
Act (p. 80).
|
The government will
simplify, modernise, and streamline processes and clarify information
requirements. It will also involve the removal of prescriptive processes and
unused assessment pathways to reduce complexity and improve flexibility for
proponents and regulators (p. 39).
Environmental laws will be
simplified and streamlined, including by:
-
simplifying and standardising
public comment processes, including allowing modern methods for publishing
information
-
clarifying the information that
must be considered in decision-making
-
moving to outcomes-based
requirements through NES
-
moving process information into
regulations or guidelines wherever possible to enable faster and more
efficient maintenance of the regulatory system
-
rationalising assessment
pathways
-
improving the operation and
effectiveness of strategic assessments (pp. 23–24).
|
Sec Rec 4 in regard to the
timeframe for the introduction of new legislation.
See Rec 3 in regard to
establishing NES.
The minister has said
there would be ‘a quite fundamental rewriting of our environmental laws’ (p. 1).
|
11.
|
The government should
increase the transparency of the operation of the EPBC Act, including by
improving the accessibility and availability of information, and amending the
Act to require publication of all information relevant to, and the reasons
for, decisions made under the Act (p. 89).
|
The government will
provide greater transparency to the community and businesses about
environmental decision-making, including the data and information considered
when making decisions (p. 39).
|
While the NPP refers to a Data
Division, in the May 2023–24 Budget, the government provided $51.5 million over 4 years from
2023–24 (and $4.5 million per year ongoing) to establish Environment
Information Australia (EIA). EIA would ‘provide an authoritative source
of high‑quality environmental information’ (p. 77). A DCCEEW factsheet states, ‘as the custodian for national environmental information,
[EIA] will ensure consistent, reliable and broad access to environmental data
across governments, project proponents and scientists’ (p. 2).
|
12.
|
The EPBC Act should be
amended to recast the statutory committees by creating 5 separate committees,
with the Ecologically Sustainable Development Committee being an overarching
committee whose function is to provide advice on the NES, planning and
implementation and coordination across all the committees (p. 92).
|
The government will review
the terms of reference of the 4 existing statutory committees to ensure
alignment with the objectives of the new Act (p. 39).
|
The 4 existing statutory
committees are:
|
13.
|
The EPBC Act should retain
the current extended standing provisions in section 487 (‘standing’ refers to
the legal right of a person or organisation to seek judicial review of an
administrative decision). The EPBC Act should be amended to provide for
limited merits review for development approval decisions with restrictions
(p. 95).
|
The government will not
introduce a right to limited merits review of decisions. Legislating NES and
establishing an EPA and the Data Division are better ways to improve, and
provide public assurance, about the quality and consistency of decision‑making
(p. 40).
|
The government does not
agree with this recommendation.
|
14.
|
The EPBC Act should be
immediately amended to provide confidence to accredit state and territory
arrangements to deliver single-touch environmental approvals in the short
term; this should be underpinned by NES and subject to rigorous oversight by
an independent Environment Assurance Commissioner (p. 103).
|
The government will
improve accreditation arrangements, including through setting more robust
requirements for decision-making. Accredited assessment will be subject to NES
and the same strong assurance and oversight as other assessment processes
under the EPA (p. 40).
A decision to accredit a
state or territory will be made by the minister (p. 3).
|
See Rec 3 in regard to
establishing NES.
The minister confirmed in
her July 2022 National Press Club Address that the government would establish a new EPA (p. 9).
The government’s response
will require revision or renegotiation of existing bilateral agreements between the states and territories. The NPP notes
that ‘[a]s accreditation will take time, and not all jurisdictions will seek
or satisfy the requirements for accreditation, the Commonwealth, through the
EPA, will continue to play a role in environmental decision-making’ (p. 18).
|
15.
|
The level of environmental
protection afforded in Regional Forest Agreements (RFAs) should be increased.
Government should ensure that RFAs are consistent with the NES. The EPBC Act
should be amended to replace the RFA ‘exemption’ with a requirement for
accreditation against NES (p. 108).
|
The government will work
with stakeholders and relevant jurisdictions towards applying NES to RFAs to
support their ongoing operation together with stronger environmental
protection (p. 40).
|
See Rec 3 in regard to
establishing NES.
The minister has said the
‘government will begin a process of applying our new National Environment Standards
to Regional Forestry Agreements. We will consult with stakeholders on how
this will be done’ (p. 12).
According to departmental
officials, the government envisages ‘that the application of environmental regulation at the federal level will be the responsibility of
the EPA ... But any [further regulation] specific to the forestry sector
would be the purview of the agriculture, fisheries and forestry portfolio’
(p. 64).
|
16.
|
The accreditation model
should be applied to arrangements with other Commonwealth agencies, where
they demonstrate consistency with the NES and subject themselves to
transparent independent oversight. This includes arrangements for the minister
to provide advice on certain actions (ss. 160–164), and approvals by the National
Offshore Petroleum Safety and Environment Management Authority (NOPSEMA) and Australian
Fisheries Management Agency (p. 109).
|
All accredited parties
will be subject to the same requirements under NES. This will include state,
territory and Commonwealth processes and management frameworks.
The EPA will assure and
provide independent oversight over decision-making under national
environmental law and the NES (p. 41).
|
See Rec 3 in regard to
establishing NES.
Accreditation arrangements
include:
-
bilateral agreements with each state and territory
-
RFAs with NSW,
Tasmania, Victoria and Western Australia
-
strategic assessments under Part
10 of the EPBC Act, including those allowing NOPSEMA to approve environment
plans in relation to offshore oil and gas
-
certain decisions of
Commonwealth agencies where the minister’s advice must be obtained, including
the provision of foreign aid, managing aircraft operations in airspace,
adopting or implementing a major development plan for an airport, sea
dumping, hazardous waste and sea installations.[2]
|
17.
|
A NES should be developed
for actions impacting on Commonwealth land and Commonwealth actions to
provide a national benchmark for effective environmental protections. The
Commonwealth should encourage other jurisdictions to adopt the standard (p.
110).
|
The government will set
NES. An overarching standard for all MNES will be established ahead of a
standard for actions on Commonwealth land (p. 41).
|
See Rec 3 in regard to
establishing NES.
|
18.
|
Commonwealth assessment
pathways should be rationalised to enable a risk-based approach to
assessments that is proportionate to the level of impact on matters protected
by the EPBC Act (p. 113).
|
The government will
rationalise assessment pathways and ensure that assessment is proportionate
to the level of impact on MNES. Risks to MNES will also be addressed through
regional plans (p. 41).
|
The assessment pathway
refers to the assessment approach for a controlled action (see
Division 3 of Part 9, EPBC Act). The minister (or their delegate) determines
the assessment approach for each controlled action.
According to departmental
data provided to the Samuel Review,
between 2014–15 and 2019–20, 56% of controlled actions were assessed based on
‘preliminary documentation, with further information’, 25% by a bilateral
process and 13% by an accredited process (p. 112).
|
19.
|
The implementation of Commonwealth
assessments should be supported by providing clear guidance, modern systems,
and appropriate cost recovery (p. 113).
|
The government will
improve the regulatory requirements for proponents and foster faster and
better decision-making (p. 41).
The simplifying and
streaming will include:
-
simplifying and standardising
public comment processes, including allowing modern methods for publishing
information
-
clarifying the information that
must be considered in decision-making
-
moving to outcomes-based
requirements through NES
-
moving process information into
regulations or guidelines wherever possible (p. 23).
The NPP states that new
environmental laws will enable recognition of ‘jurisdictional assessments and
the listing of threatened species and ecological communities’ (p. 24).
The NPP also states the following will be considered:
-
aligning listing processes with
international best practice
-
considering the Common
Assessment Method in the development of NES
-
enabling the TSSC to advise the minister
on whether assessments prepared by other jurisdictions comply with the Common
Assessment Method (p. 24).
The NPP states that the
government will ‘implement activity-based costing and update cost recovery
arrangements for environmental assessment and approvals’ (p. 24).
|
In December 2022, the DCCEEW
began a consultation process for ‘Cost recovery under the EPBC Act’. The Consultation paper states ‘the current cost recovery model only
recovers approximately 10 percent of the Department’s costs related to the
administration of the EPBC Act’ (p. 8).
The Consultation paper
suggests that a new fee structure, including a potential levy, would be in
place in the 2023–24 financial year (p. 7). At the time of writing, submissions
to the Consultation paper are not available on the DCCEEW’s
Consultation hub.
|
20.
|
The EPBC Act should be
amended to ensure wildlife permitting requirements align with Australia’s
international obligations under the Convention on the Conservation of
Migratory Species and the Convention on International Trade in Endangered
Species of Wild Fauna and Flora (CITES) (p. 116).
|
The government will
streamline and improve wildlife trade permit requirements to retain
consistency with international obligations, including welfare standards for
live specimens (p. 42).
The NPP notes there are
inadequate definitions of ‘zoos’ and ‘research institutions’ (p. 24).
|
While the Samuel Review
was in train, the then Department of Agriculture, Water and the Environment
commissioned KPMG to undertake an Independent review into the regulation of the export
of native and exotic birds. The
Secretary of the Department accepted the recommendations of the review. This
was followed by an Independent assessment into options for a national
registration scheme for native and exotic live birds in Australia (ThinkPlace, 2021).
|
21.
|
Part 13A Division 2 and 5
of the EPBC Act, the EPBC Regulations and associated definitions should be
amended to streamline and reduce the regulatory burden on wildlife trade
permitting processes and to enable proportionate compliance and enforcement
responses (p. 116).
|
The government will reduce
unnecessary prescription and administrative processes for wildlife trade
permitting, ensuring ongoing protection of species is maintained and permit
requirements remain consistent with international obligations (p. 42).
|
|
22.
|
Reduce instances under the
EPBC Act and EPBC Regulations where wildlife trade permitting may be subject
to abuse by applicants (p. 116).
|
The government will
improve the effectiveness of wildlife trade regulation by improving
compliance and enforcement and reducing the potential for wildlife permits to
be misused. A fit and proper person test will also be applied (p. 42).
|
|
23.
|
By statutory appointment,
immediately establish the position of Environment Assurance Commissioner with
responsibility to oversee audit of decision-making by the Commonwealth under
the EPBC Act and of accredited parties under an accredited arrangement. The
Commissioner should also provide an annual report to Parliament on the
performance of the Commonwealth and accredited parties against NES (p. 125).
|
These functions will be
performed by the EPA, which will make decisions in accordance with NES and
assure accredited parties and instruments apply the standards.
The Data Division will
develop and implement a monitoring, evaluation and reporting framework to
provide assurance that the system, including the EPA, is achieving the
objectives of the new Act and outcomes of NES (p. 42).
The NPP states the EPA
will:
-
undertake regulatory and
implementation functions under the EPBC Act and other relevant Commonwealth
laws including laws relating to sea dumping, ozone protection and synthetic
greenhouse gas management, hazardous waste, product emissions standards,
recycling and waste reduction, and underwater cultural heritage
-
undertake assessments and make
decisions about development proposals, including approval conditions
-
issue permits and licences
-
undertake compliance and
enforcement activities
-
establish and publish its
compliance and enforcement policy
-
provide assurance, and advise
the minister, on whether accredited parties and instruments apply the standards
(for example, NES)
-
be established as a statutory
Commonwealth entity with its own budget (including funding from cost
recovery)
-
led by a Chief Executive
Officer, appointed for a fixed term and removable only in specified
circumstances
-
report publicly on its
performance
-
publish annual reports, which
the minister will be required to table in Parliament (pp. 28–29).
The EPA will not, however,
have a statutorily appointed board (p. 29).
The NPP also indicates the
minister will retain a ‘call-in’ power and ‘will have the power to approve
proposed developments that have an unavoidable negative impact on MNES but only
where this is clearly in the national interest’ (p. 29).
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The NPP and early ministerial
statements refer to an Environment Protection Agency. In the May 2023–24 Budget, the entity is designated Environment Protection
Australia (p. 77).
The minister has said, ‘[t]he EPA will be governed by its mission to ensure a nature positive
Australia, while also factoring in social and economic considerations’
(p. 10).
The minister has
repeatedly referred to the EPA as a ‘strong [or tough] cop on the beat’; for example, ‘the EPA will be a tough cop on the beat. It will transform our system of environmental
approvals. It will be transparent and independent. It will make environmental
assessments, decide project approvals and the conditions attached to them,
and it will make sure that those conditions are being followed on the ground’
(p. 1).
The minister has said, ‘the minister will be able to override an EPA
decision, but there’s some
important safeguards here as well. The EPA original advice will have to
published. The minister’s decision to override in the national interest will
have to be transparent and published as well’ (p. 2).
The May 2023–24 Budget provided $121.0 million over 4 years from 2023–24 to establish
the EPA (p. 77). At Senate Estimates, departmental officials alluded to
a machinery of government process (p. 73).
The DCCEEW has said ‘[t]he staffing profile of EPA will comprise existing [DCCEEW] staff undertaking
regulatory functions ... In addition to existing departmental staff
transferring to EPA, new staff will undertake critical enabling and corporate
functions to support the new entity’.
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24.
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The EPBC Act should be
amended to replace bilateral agreement processes with robust and efficient
accreditation processes, based on NES. This should include the opportunity
for the Australian Parliament to disallow a proposed accreditation, the
unfettered right for the minister to make a decision, and scheduled formal
review (p. 125).
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The government will
improve accreditation arrangements and ensure robust oversight of
decision-making by accredited parties. Accredited arrangements will be
subject to NES, strong assurance, and independent oversight. The
accreditation framework will reflect the proposals set out in the
recommendation (p. 43).
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See Rec 3 in regard to
establishing NES.
Sec Recs 14 and 16 in
regard to accreditation arrangements.
On 9 June 2023, Commonwealth, state and territory environment ministers ‘agreed to identify where, with better harmonisation of environmental assessments, there
is opportunity for reduced timeframes, stronger protections and to make
better and faster decisions’ (p. 2).
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25.
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The EPBC Act should be
amended to support more effective planning that accounts for cumulative
impacts and past and future key threats and build environmental resilience.
This includes development of strategic national plans, regional recovery
plans, ecologically sustainable development plans, and strategic assessments
(p. 137).
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The government’s approach
emphasises this recommendation and focuses on regional planning. Conservation
plans will also be delivered via a regional framework with Areas of High
Environmental Value, reducing the cumulative impacts on threatened species
and ecological communities.
The first NES will include
a Regional Planning Standard to support the development of regional plans (p. 43).
According to the NPP, ‘the
government aims to complete the first round of regional planning by 2028’
(p. 20).
The NPP indicates that
regional plans will occur alongside strategic plans (p. 24). The NPP
states the government will improve the operation and effectiveness of
strategic assessment (p. 24).
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The minister has said, ‘[a] new system of regional planning will allow Australia to fast-track sensible
projects in robust places, while stopping damaging projects in fragile
places’ (p. 6). The minister went on to describe regional plans using
a three-level ‘traffic light’ system
(p. 7). This will provide for areas of high environmental value (red)
where development will largely be prohibited, areas of moderate environmental
value (orange) where development will be allowed subject to an approval
process and any agreed rules, and development priority areas (green) where
development will be allowed without a separate Commonwealth environmental
approval (NPP, pp. 19–20).
At Senate Estimates on 9 March 2023, departmental officials expressed a view
that regional plans would support faster outcomes because they ‘would be able
to provide greater information to potential proponents earlier in their
process about what was important' (pp. 25–26).
On 22 December 2022, the minister jointly announced with the Queensland Minister for the Environment
and the Great Barrier Reef that a regional plan would be developed for
southeast Queensland. Additional regional plans will be developed for rare
earth minerals and renewable energy. However, regions of interest are yet to be determined (p. 1).
On 22 December 2022, the minister jointly announced with the NSW Minister for Lands and Homes that the
NSW Government was working with the Australian Government to develop initial
regional plans in the Northern Rivers, Central Coast, Hunter-Central Coastal
Renewable Energy Zone and NSW component of the Loxton‑Parilla Sands
Basin.
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26.
|
The Commonwealth should
establish a dedicated program to develop and implement strategic national
plans and regional plans with a focus on key Commonwealth priorities (p. 137).
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The government will remove
overly prescriptive processes and duplication to streamline and strengthen
conservation planning.
Regional plans will
identify areas necessary for the protection, conservation and repair of
environment and heritage values. The plan will also guide ecologically
sustainable development, harmonise requirements between Commonwealth and
state or territory regulators and reduce development approval times
(p. 44).
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See Rec 25 in regard to
regional plans.
Launching the NPP, the minister
said, ‘[r]egional plans will also help us address the problem of cumulative impacts, because
we won’t be dealing with each project in isolation – we’ll be considering how
they connect and overlap’, (p. 7). The minister said, ‘regional plans
are something the federal government will need to work on with the states and
territories, and with local government as well’ (p. 7).
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27.
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The Commonwealth should
reform the application of environmental offsets under the EPBC Act to address
decline and achieve restoration (p. 141).
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A NES for Environmental
Offsets will work alongside the MNES Standard to significantly improve
environmental outcomes from offset arrangements (p. 44).
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In announcing the NPP, the minister said new offsets will be embedded in legislation and
set out a hierarchy of action: ‘First: to avoid harm to the environment. Second:
to reduce or mitigate environmental damage. Third: to identify offsets within
the region that deliver a net gain for the imperilled plants or animals
affected by the project. And as a last resort: to make a conservation payment
to enable a better environmental outcome – one that leaves nature better off
overall’ (p. 9).
The potential use of
proposed biodiversity certificates for offsetting purposes has been one of
the most controversial aspects of the government’s proposed nature repair
market (see: Bills digest (pp. 24–26); Senate Inquiry, pp. 60–61)).
Departmental officials
have said ‘[c]ertificates under the [proposed] nature repair market won’t be able to be
used as offsets unless and until there is the offset standard that is being
created. That offset standard is a net gain standard’ (p. 51).
On 29 June 2023, the minister announced an audit of ‘over 1,000 offset sites approved under [the
EPBC Act] to make sure developers are meeting their obligations’. Remarkably,
the minister said, ‘[u]ntil recently there has been no reporting to track
whether developers are actually delivering on their responsibilities’.
At a Senate inquiry, departmental officials said the audit was being undertaken by the
department’s compliance and enforcement branch (p. 54). No terms of
reference or timeline are available.
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28.
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The government should
formally investigate and consider pathways to foster private sector
participation in environmental restoration (p. 128).
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The government will
establish a nature repair market. The nature repair market will encourage
private investment in environmental restoration and management. The
government will investigate barriers and incentives for the protection and
restoration of biodiversity on private land (p. 44).
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On the release of the 2021
SoE Report, the minister said, ‘[w]e need to work with industry and philanthropic
partners … I want to look at ways
to make these investments easier…’ (p. 11).
On 26 August 2022, the minister jointly announced with the Prime Minister that the government would
create a biodiversity certificate scheme, allowing Australia to develop a ‘Green Wall Street’. The department consulted on a fact sheet before releasing an exposure draft of the Nature Repair Market Bill on 23 December 2022.
On 29 March 2023, the minister
introduced the Nature Repair Market Bill 2023 to the House of Representatives. See the Bills digest for more information.
The Bill passed the House with amendments on 21 June 2023.
The Bill was referred to
the Senate Standing Committee on Environment and Communications for inquiry and report by 1 August 2023. However, following a public hearing on 30 June 2023, during which aspects of the proposed
market were heavily criticised, the reporting date was extended to 1 November 2023.
On 23 October 2023, the reporting date was extended to
18 April 2024.
In Senate Estimates,
departmental officials reported strong interest from the private sector in a
market, ‘but, without rules, a high-integrity system, a public registry system
and a transparent process, there's unwillingness to invest at this stage
until those arrangements are in place’ (p. 23).
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29.
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Reforms should be
implemented to ensure compliance and enforcement functions by the
Commonwealth, or an accredited party, are strong and consistent (p. 153).
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The EPA will be
responsible for undertaking regulatory functions and implementing new
environmental laws.
To facilitate the accreditation
of other parties, a Standard for Compliance and Enforcement will be developed
once the EPA is established.
Accredited parties will be
subject to their compliance with all standards, and full disclosure of
environmental performance data. All accredited arrangements will be subject
to strong assurance, and independent oversight (p. 45).
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See Rec 3 in regard to
establishing NES.
See Rec 23 regarding
establishment of the EPA.
Launching the NPP, the minister
has said NES ‘will be legally enforceable, creating positive requirements for decision making.
They will describe the outcomes we want – and our new Environment Protection Agency
will make sure those outcomes are being delivered on the ground’ (p. 5).
At a Senate Estimates
hearing on 23 May 2023, departmental officials said, ‘[t]he point of the EPA is that it will undertake the Commonwealth's
environmental regulatory responsibilities’ (p. 73). This will extend to
the department’s regulatory functions as specified in other Commonwealth
Acts. Officials said, ‘the department is undertaking preliminary work around bringing together the functions that will
ultimately transfer into an EPA once it is created as an independent entity’
(p. 73).
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30.
|
The Commonwealth should
immediately increase the independence of and enhance Commonwealth compliance
and enforcement. There should also be an increase in the transparency and
accountability of activities, including a clear public register of
activities, offsets and staff conflicts of interest (p. 153).
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The government will
establish the EPA as a strong independent environmental regulator with a
mission to improve trust and transparency in the operation of national
environmental laws.
A National Environmental
Offsets System will be released by the end of 2022, to track and report on the
use and delivery of environmental offsets.
The government will
provide full transparency to the community and businesses on environmental
decision-making (p. 45).
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See Rec 23 in regard to
establishing the EPA.
In launching the NPP, the minister
said, ‘[p]eople don’t trust the system because it’s weak, but also because it’s opaque.
It’s not clear whether environmental conditions placed on projects are being
enforced on the ground. The EPA will address this trust deficit’ (p. 10).
In late 2022, an Offsets Register was added to the EPBC Act Public Portal. The Register purports to list all approved
projects since the commencement of the EPBC Act that have offset conditions.
At the time of writing, offset conditions could be viewed; however, offset
sites and offset documents were often not available due to the review announced by the minister on 29 June 2023.
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31.
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The Commonwealth should
initiate immediate improvements to the environmental information system by:
(a) adopting a NES for data and information; (b) appointing an interim supply
chain Custodian; (c) designating a set of national environment information
assets; (d) expanding the existing work with jurisdictions on digital
transformation of environmental assessments; (e) commencing an overhaul of
the department’s information management systems (p. 174).
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The government agrees with
the report’s recommendations and is committed to quality, accessible and
transparent data. The government will ensure decisions are based on the best
available data, information, and advice, and increasing the transparency of decisions.
A Standard for Data and
Information will be developed once the Data Division is established.
The government will
establish a Data Division, so an interim data supply chain custodian is not
required.
New information systems
are being built to better coordinate Commonwealth, state and territory
decision-making and allow proponents to submit and track their applications
online (p. 46).
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In launching the NPP, the minister
said she would create a ‘new data division in our department, which will be responsible for integrating new and
existing information, making it accessible and searchable, while reporting
the progress we’re making against our environmental goals’ (p. 10).
The NPP states ‘a Chief
Environmental Data Officer [CEDO] will be appointed to lead the Data
Division, with clear responsibilities and powers provided for in legislation’
(p. 29). The CEDO will be responsible for developing and implementing a
National Environmental Data Strategy (p. 29).
On 2 June 2023, when
launching a ‘global search for the head of Environment
Information Australia’, the
minister said EIA would be ‘an agency that will survey, monitor and publicise
local information on threatened species, vulnerable ecosystems, and the state
of our environment’ (pp. 1–2).
In a speech to the Global Biodiversity
Information Facility on 18 October 2023, the minister said EIA would do three
things: ‘deliver better information to everyone involved in the environmental approvals
system', provide data to ‘support our implementation of regional planning and
conservation’, and ‘offer regular reporting on our national goals and the
state of our environment’ (p. 4).
As at 3 October 2023,
EIA is shown as a Division of DCCEEW.
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32.
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The Commonwealth should
build, maintain, and improve an efficient environmental information supply
chain to improve the effectiveness of the EPBC Act (p. 174).
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The government will
establish a Data Division within DCCEEW to oversee and coordinate
improvements to Australia’s environmental data and information, and act as
the custodian of the national environmental supply chain (p. 46).
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See Rec 31 in regard to
establishing a Data Division.
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33.
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The Commonwealth should
establish a NES for environmental monitoring and evaluation of outcomes and
assign the Ecologically Sustainable Development Committee responsibility for
the oversight and management of monitoring, evaluating and reporting on the outcomes
of the EPBC Act (p. 181).
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The Data Division will
develop and implement a monitoring, evaluation and reporting framework to
provide assurance that the objects of the new Act and outcomes of NES are
being achieved (p. 47).
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Sec Rec 12 in regard to
reforming statutory committees.
See Rec 31 in regard to
establishing a Data Division.
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34.
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The EPBC Act should be
amended to require formal monitoring, evaluation and reporting on the
effectiveness of the Act in achieving its outcomes. In addition, an annual
statement should be provided evaluating environmental performance under the
Act, how the outcomes for MNES are tracking, and making recommendations for
adjustment (p. 181).
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The government will
establish standards and ensure that decision-making processes under national
environmental law are effective and transparent.
The Data Division will
provide publicly available monitoring and reporting on environmental outcomes
(p. 47).
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See Rec 31 in regard to
establishing a Data Division.
The NPP states ‘[t]he Data
Division will develop and implement a monitoring, evaluation and reporting
framework to provide assurance that the system as a whole, including the EPA,
is working to deliver environmental and heritage outcomes and achieving the
objectives of national environmental law’ (p. 30).
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35.
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Commonwealth should
deliver a published response to the 2021 SoE Report (p. 190).
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The government published
the 2021 SoE Report on 19 July 2022. This response addresses findings from
the SoE report and the review. Implementation of the government’s actions
will be reported regularly for transparency and accountability (p. 47).
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The response to the Samuel
Review is considered to be the government’s response to the 2021 SoE
Report.
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36.
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The EPBC Act should
be amended to provide a legislative basis for the Commonwealth’s national
leadership and reporting role, including to set out the purpose of SoE
reporting, to require a government response to future SoE in the form of a
strategic national plan for the environment and annual implementation
reports, and a set of national environmental-economic accounts to be tabled
annually alongside traditional budget reporting (p. 190).
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The government will
legislate to clarify the purpose of SoE reporting, including requiring trend
analysis against national goals and a long‑term set of environmental
indicators. This will include a requirement for a government response to
future SoE reports to be tabled in Parliament within a specified timeframe.
The government will
develop a core set of national environmental economic accounts to be tabled
annually in Parliament alongside the system of national (economic) accounts
(p. 48).
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See Recs 31 and 34 in
regard to establishing a Data Division and its functions.
The minister has said, ‘by agreement with the Treasurer, the historic wellbeing budget will also include
environmental indicators’ (p. 9).
The Treasurer launched the
‘Measuring What Matters national wellbeing framework’
in July 2023. The framework includes 8 indicators under the
‘Sustainable’ theme, which describes ‘a society that sustainably uses natural and financial resources, protects and
repairs the environment and builds resilience to combat challenges’. The indicators are: air quality, biological diversity, climate resilience, economic
resilience, emissions reduction, fiscal sustainability, protected areas and
resource use and waste generation.
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37.
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The Commonwealth should
build reforms by pursuing harmonisation with states and territories to
streamline national and international reporting by delivering: (a) a national
environmental monitoring and evaluation framework; and (b) a nationally
agreed system of environmental‑economic accounts to support streamlined
environmental reporting (p. 190).
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The government will
improve reporting and consider the best way to support further harmonisation
with states and territories through relevant intergovernmental forums
(p. 48).
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See Rec 36 in regard to environmental
economic accounts.
On 21 October 2022, Commonwealth, state and territory environment ministers agreed to ‘work together to improve the quality, accessibility and interoperability of
environmental data to aid decision-making’ (p. 2).
On 9 June 2023, Commonwealth, state and territory environment ministers ‘agreed to work together to identify and remove barriers to enable sharing of
information between jurisdictions’ (p. 1).
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38.
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The Commonwealth should
instigate a refresh of intergovernmental cooperation and coordination to
facilitate collaboration with the states and territories (p. 195).
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The government will seek
to formalise support for the implementation of national environmental law
reform through relevant intergovernmental forums.
The government has
reinstated the environment ministers’ meeting to promote collaboration with
states and territories. Ministers have committed to work together on NES,
regional planning locations and environmental data. Regional planning will be
undertaken with states, territories and local government (p. 49).
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Meetings of Commonwealth, state and territory environment
ministers have been held in October 2022
and June 2023.
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