Nature Positive (Environment Protection Australia) Bill 2024 [and related Bills]

Climate Change, Energy, the Environment and Water 24 June 2024

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Key points

The Nature Positive (Environment Protection Australia) Bill 2024 establishes a statutory agency to be known as Environment Protection Australia (EPA), which is to be led by a Chief Executive Officer (CEO). The Bill contains provisions relating to the governance and operation of the CEO and EPA. The CEO is given, directly and indirectly, functions and powers under 9 environmental laws, as provided for by amendments made by the Nature Positive (Environmental Law Amendments and Transitional Provisions) Bill 2024.
The Nature Positive (Environment Information Australia) Bill 2024 establishes the Senior Executive Service (SES) position of Head of Environment Information Australia within the department. The Bill sets out the functions of the Head of the EIA (HEIA), including defining a baseline for nature positive and reporting towards a nature positive Australia.
The Nature Positive (Environmental Law Amendments and Transitional Provisions) Bill 2024 amends 9 environmental laws to provide the CEO with a range of powers and functions under those laws. It also amends the Environment Protection and Biodiversity Conservation Act (EPBC Act) to increase criminal and civil penalties, add new compliance and enforcement powers, and amend ‘stop clock’ provisions.
The Bills form part of the Albanese Government’s response to the second independent review of the EPBC Act (the Samuel Review), as outlined in its Nature Positive Plan: Better for the environment, better for business.
Stakeholders have been uniformly critical of the government’s failure to progress the full reform agenda as set out in the Nature Positive Plan. Academic experts and environment and climate action advocacy groups are concerned that the full reform agenda will not be delivered in this term of Parliament, while industry and business groups have expressed concern that the reforms add ‘green tape’ and will reduce investor confidence.
The Bills are expected to be referred to the Senate Environment and Communications Legislation Committee for inquiry and report.

Introductory Info

Date of introduction: 29 May 2024
House introduced in: House of Representatives
Portfolio: Climate Change, Energy, the Environment and Water
Commencement: the Bills or specific schedules of Bills commence as set out below:
Nature Positive (Environment Protection Australia) Bill 2024 (EPA Bill): 1 July 2025
Nature Positive (Environment Information Australia) Bill 2024 (EIA Bill): 1 July 2025
Nature Positive (Environmental Law Amendments and Transitional Provisions) Bill 2024:

sections 1 to 3: the day after the Act receives Royal Assent
Schedules 1 and 2, Part 1 of Schedule 3, Schedules 4 to 10 and Schedule 13: at the same time as the Nature Positive (Environment Protection Australia) Act 2024 (EPA Act), and not at all if that Act does not commence
Item 29 of Schedule 3: at the later of the commencement of the EPA Act and immediately after the commencement of item 3 of Schedule 1 to the Environment Protection (Sea Dumping) Amendment (Using New Technologies to Fight Climate Change) Act 2023 (Sea Dumping Amendment Act) and not at all unless both those events occur^{^[1]}
Item 30 of Schedule 3: at the later of the commencement of the EPA Act and immediately after the commencement of item 35 of Schedule 1 to the Sea Dumping Amendment Act, and not at all unless both those events occur.^{^[2]}

This Bills Digest replaces a preliminary Bills Digest published on 3 June 2024.

Purpose and structure of the Bills

This package of 3 Bills, the Nature Positive (Environment Protection Australia) Bill 2024 (EPA Bill), Nature Positive (Environment Information Australia) Bill 2024 (EIA Bill), and the Nature Positive (Environmental Law Amendments and Transitional Provisions) Bill 2024 (Transitional Provisions Bill) implement the second stage of the Albanese Government’s Nature Positive Plan.^{^[3]}

The Nature Positive Plan is the government’s response to the second independent review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), led by Professor Graeme Samuel and completed in October 2020.

An overview of the EPBC Act and explanation of the Nature Positive reforms is provided in the following Parliamentary Library publications:

Sophie Power, Environment Protection and Biodiversity Conservation Act 1999: a quick guide, Research paper series, 2018–19, (Canberra: Parliamentary Library, May 2019).
Emily Gibson, ‘Reform of Australia’s national environmental law’, in Parliamentary Library Briefing Book: Key issues for the 47th Parliament, (Canberra: Parliamentary Library, June 2022).
Emily Gibson, Reforming Australia’s national environmental law: an overview of the government’s response to the Samuel Review, Research paper series, 2023–24, (Canberra: Parliamentary Library, November 2023).

Nature Positive (Environment Protection Australia) Bill 2024

The EPA Bill establishes a statutory agency to be known as Environment Protection Australia (EPA) and sets out its functions. The EPA would be a non-corporate Commonwealth entity, with the Chief Executive Officer (CEO) as the accountable authority of the EPA.

The EPA Bill has 6 Parts:

Part 1 sets out preliminary matters including an object of the Act and definitions
Part 2 establishes EPA as a Commonwealth statutory entity and the position of CEO; it provides that the EPA consists of the CEO, staff and other persons who are engaged to provide services to the EPA. The Part also sets out the functions of the EPA and CEO
Part 3 sets out the responsibilities of the Minister and CEO, including providing for the Minister to issue a Statement of Expectations and the CEO to provide a corresponding Statement of Intent. The Part requires the CEO to establish and maintain registers of registerable decisions made under relevant environmental laws, with rules to prescribe registerable decisions and additional matters that the CEO must include on the registers
Part 4 provides the CEO with a non-coercive power to request information, advice and documents. It also sets out requirements and restrictions in relation to the disclosure of relevant information and protected information by the CEO and entrusted persons, and establishes civil penalty provisions relating to the unauthorised use and disclosure of protected information
Part 5 sets out requirements for the appointment of the CEO by the Governor-General, including the qualifications of the person, terms and conditions of the appointment and circumstances in which the CEO’s appointment may be terminated. The Part also provides that the CEO may establish an advisory group to provide advice or assistance in the performance of the CEO’s functions, although the CEO would not be bound to follow the advice and would have discretion as to publication of that advice
Part 6 provides for a range of matters, including the delegation of the CEO’s functions and powers under an environmental law, the preparation and publication of an annual report, 5-yearly independent reviews of the Act, and a general rule making power.

Nature Positive (Environment Information Australia) Bill 2024

The EIA Bill establishes the Head of Environment Information Australia (EIA) as a statutory officer within the Department of Climate Change, Energy, the Environment and Water (DCCEEW; the department responsible for administering the environment portfolio).

The EIA Bill has 6 Parts:

Part 1 sets out preliminary matters including objects of the Act and definitions. Importantly, clause 6 defines nature positive.
Part 2 establishes the Head of EIA (HEIA) and sets out the Head’s functions, including those that are not subject to the direction of the Minister or Secretary. The HEIA’s functions include:

preparing a monitoring, evaluation and reporting framework in relation to a nature positive Australia
preparing and publishing biennial state of the environment reports
maintaining environmental economic accounts
identifying national environmental information assets.

Part 3 sets out the responsibilities of the Minister with respect to the HEIA’s functions, including a requirement to respond to state of environment reports and setting national environmental goals.
Part 4 provides the HEIA with a non-coercive power to request information, advice and documents. It also sets out requirements and restrictions in relation to the disclosure of departmental information, EIA information and protected information by the HEIA, a delegate, and entrusted persons, and establishes civil penalty provisions relating to the unauthorised primary and secondary use and disclosure of protected information.
Part 5 provides that the HEIA is engaged under the Public Service Act 1999 and is an Senior Executive Service employee in the department, and may be assisted by staff of the department or contractors.
Part 6 provides for a range of matters, including the delegation of the HEIA’s functions or powers, the preparation and publication of an annual report, 5-yearly independent reviews of the Act, and a general rule making power. Clause 50 limits the liability of the HEIA and other persons in actions for damages.

Nature Positive (Environmental Law Amendments and Transitional Provisions) Bill 2024

The Transitional Provisions Bill amends 9 environmental laws to transfer certain functions and powers from the Minister (or in some cases the Secretary) to the CEO (and in some cases the staff of the EPA). These include the issuing of permit and licences and the undertaking of compliance and enforcement activities.

The Bill also amends the EPBC Act to:

allow the Minister and Secretary to delegate some or all of their functions and powers to the CEO and EPA staff
confer compliance and enforcement powers and functions on the Director of National Parks, where these relate to Commonwealth reserves
increase criminal and civil penalties
introduce new compliance and enforcement powers
provide that a proponent can object to the ‘stopping of the clock’ when the Minister requests additional information to enable the Minister to make an informed decision about a proposed action under the EPBC Act.

The Bill has 13 Schedules:

Schedule 1 provides transitional provisions relating to the formation of the EPA, including for the transfer of documents and records and the application of an Enterprise Agreement to Australian Public Service staff of the EPA. It also sets out transitional provisions associated with the formation of the EPA.
Schedule 2 amends the EPBC Act to replace select references to the Minister, and the Secretary of the department, with the CEO of the EPA, including to allow the CEO to issue evidentiary certificates under Part 3, grant or refuse to grant permits under Part 13 and undertake compliance and enforcement activities under Parts 17, 18 and Schedule 1 of the Act. It also inserts proposed section 515AAA to allow the Minister to delegate some or all of the Minister’s powers and functions to the CEO or a member of the staff of the EPA, and to allow the Secretary to similarly delegate some or all of the Secretary’s powers and functions to the CEO or a member of staff of the EPA.
Schedule 3 amends the Environment Protection (Sea Dumping) Act 1981 (Sea Dumping Act) to replace select references to the Minister with the CEO to allow the CEO to grant (or refuse to grant) permits, vary, suspend, revoke or cancel permits, appoint inspectors and analysts, and issue evidentiary certificates.
Schedule 4 amends the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Hazardous Waste Act) to replace select references to the Minister with the CEO, to allow the CEO to grant (or refuse to grant) permits, vary, suspend or revoke permits, issue certain orders, appoint inspectors, and exercise regulatory powers.
Schedule 5 amends the Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995 to replace select references to the Minister with the CEO, for example to allow the CEO to grant exemptions from levies, and to make consequential repeals.
Schedule 6 amends the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 to replace select references to the Minister and Secretary with the CEO and make related consequential amendments. It would allow the CEO to grant (or refuse to grant) licences, vary, suspend or cancel licences, appoint inspectors, exercise regulatory powers, and deal with seized and forfeited goods.
Schedule 7 amends the Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Act 1995 to replace select references to the Minister with the CEO, for example to allow the CEO to grant exemptions from levies, and to make consequential repeals.
Schedule 8 amends the Product Emissions Standards Act 2017 to replace select references to the Minister and Secretary with the CEO and to make related consequential amendments. It would allow the CEO to determine if a product complies with an emissions reduction standard, grant exemptions from compliance, appoint inspectors, exercise regulatory powers, and deal with seized and forfeited goods.
Schedule 9 amends the Recycling and Waste Reduction Act 2020 to replace select references to the Minister and Secretary with the CEO. It would allow the CEO to grant (or refuse to grant) export licences, vary, suspend or cancel export licences, appoint authorised officers, and exercise regulatory powers. The Schedule would also allow the CEO to approve new co-regulatory product stewardship arrangements, and to issue improvement notices to underperforming co-regulatory product stewardship arrangements.
Schedule 10 amends the Underwater Cultural Heritage Act 2018 to replace select references to the Minister and Secretary with the CEO and inserts proposed section 54A to allow the Minister to share information with the CEO. It would allow the CEO to exercise regulatory powers, deal with forfeited vessels, equipment or articles, and appoint inspectors.
Schedule 11 amends the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) as follows:

Part 1 repeals and replaces Division 12 of Part 17 to allow the Minister to direct or require 2 different types of audits – a directed environmental audit and a compliance audit. The Part sets out related requirements, including the maintenance of a register of auditors. Part 1 also inserts new Division 13A to allow the Minister to issue environment protection orders. The Part sets out related requirements, including the required content of orders, variation and revocation, penalties for failure to comply with an order and hindering or obstructing compliance with an order.
Part 2 amends the EPBC Act to increase criminal penalties in Part 3 of the Act (taking an action without an approval) and introduce a new civil penalty formula for civil penalty provisions in Part 3 and subsection 142(1).

Schedule 12 amends the EPBC Act to allow a proponent to advise the Minister that it does not want ‘stop clock’ provisions to apply in circumstances in which the Minister has requested further information from a proponent to enable the Minister to make a relevant decision relating to the approval of an action.

A brief description of the purpose of environmental laws (other than the EPBC Act) is provided in Table 1 (Appendix).

Background

State of Australia’s environment

Australia is ‘one of the world’s few mega-diverse countries’, with an extraordinary diversity of species and ecosystems, and a high level of species endemism.^{^[4]} Many native species and ecological communities hold ‘tremendous spiritual, cultural and symbolic value’ to First Nations peoples, as totems, sources of food or medicine, as indicators of health of Country, or for use in customary and ceremonial activities.^{^[5]}

However, the Australia state of the environment report 2021 (SoE Report) describes a concerning picture:

Overall, the state and trend of the environment of Australia are poor and deteriorating as a result of increasing pressures from climate change, habitat loss, invasive species, pollution and resource extraction. Changing environmental conditions mean that many species and ecosystems are increasingly threatened. Multiple pressures create cumulative impacts that amplify threats to our environment, and abrupt changes in ecological systems have been recorded in the past 5 years …

Our inability to adequately manage pressures will continue to result in species extinctions and deteriorating ecosystem condition, which are reducing the environmental capital on which current and future economies depend. Social, environmental and economic impacts are already apparent.^{^[6]}

Australia has one of the highest rates of species extinction, with more than 100 endemic species becoming extinct, or extinct in the wild, since colonial settlement in 1788, and scientists describing some of these extinctions as ‘predictable and probably preventable’.^{^[7]} The Bramble Cay melomys (Melomys rubicola), last sighted in 2009, is the first extinction to be attributed, in part, to the impacts of human-induced climate change.^{^[8]} And in 2021, scientists reported that 19 terrestrial and marine ecosystems – from the tropics to the Antarctic – showed evidence of collapse or have collapsed, with the loss of ‘key defining features and functions’.^{^[9]}

Australia’s national environmental law, the EPBC Act, aims to ‘promote the conservation of biodiversity’ and provides for the listing of threatened species and ecological communities and planning for their protection and recovery.^{^[10]} At the time of writing, 2,212 species and ecological communities are listed as threatened; 10% of these entities have been added since 1 January 2021, reflecting both ‘a worsening extinction crisis’ and greater effort to ensure the ‘list reflect[s] reality’.^{^[11]}

In addition, between 2000 and 2017, 7.7 million hectares of potential habitat for threatened species was cleared, 93% without being referred for assessment and approval under the EPBC Act.^{^[12]} The SoE Report states that ‘current rates of primary, secondary and re-clearing impose significant ongoing widespread pressure across almost all areas of Australia’.^{^[13]}

Many of the key threats to threatened species and ecosystems generally – habitat loss, fragmentation and degradation, invasive species and disease, adverse fire regimes, climate change and severe weather – are poorly (or, more plainly, not) adequately addressed under the framework provided by the EPBC Act.^{^[14]} A focus on single projects results in a failure to consider landscape-scale cumulative impacts of individual approval decisions, with species facing ‘death by a thousand cuts’.^{^[15]}

Continued decline in Australia’s biodiversity ‘will have far-reaching consequences for the economy, human health and well-being, food systems, and culture, in addition to diminishing nature itself’.^{^[16]} It ‘also poses an existential threat to Australia’s First Peoples … whose cultures were founded on reciprocal relationships with Country’.^{^[17]}

The current Act as an ‘abysmal failure’

The EPBC Act is the primary Commonwealth environmental law and is administered by the DCCEEW. The Act implements key aspects of the Council of Australian Governments’ 1997 Heads of agreement on Commonwealth and State roles and responsibilities for the environment and consolidated 5 Commonwealth laws relating to environmental impact assessment, national parks, world heritage, and endangered species.

The EPBC Act establishes 9 ‘matters of national environmental significance’ (MNES; protected matters), largely drawn from Australia’s international obligations under a range of environment and heritage treaties. The Act sets out 2 regimes:

an environmental impact assessment and approval regime for actions by any person that are likely to have a significant impact on protected matters, actions by Commonwealth agencies that are likely to have a significant impact on the environment, and actions by any person likely to have a significant impact on the environment on Commonwealth land (Parts 3 to 11)
a regime for biodiversity conservation (for example, processes for listing and managing threatened species and ecological communities), protected areas (for example, National and Commonwealth Heritage places, Commonwealth reserves), and regulation of the trade in wildlife (Parts 11A to 15B).

It also:

establishes a range of advisory, expert and management bodies
sets out compliance and enforcement provisions
provides for review of decisions, including extended standing for judicial review
provides for annual reports and 5-yearly state of the environment reports
sets out interpretive provisions, including key definitions.

The EPBC Act requires that an independent statutory review of the Act’s operation and the extent to which its objects have been achieved is undertaken every 10 years.^{^[18]}

The first of these, the Hawke Review, released in December 2009, made 71 wide-ranging recommendations revolving around 9 core elements.^{^[19]} It recommended a complete redrafting of the Act and significant changes to its operation and administration. However, no substantive action was taken to implement the recommendations.^{^[20]}

The second of these, the Samuel Review, released in January 2021, provided a withering assessment of the effectiveness of the EPBC Act. The Final report concluded:

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.^{^[21]}

The review makes 38 recommendations for improving the operation and effectiveness of the Act as part of a staged pathway of reform. The report states:

The reforms … are designed to enable the Commonwealth to step up its efforts to deliver nationally important outcomes for the environment by:

setting clear outcomes through new, legally enforceable National Environmental Standards that set the boundaries for decision-making to deliver the protections needed

actively restoring the environment and facilitating the scale of investment needed to deliver better outcomes

taking an adaptive approach, through better planning, measuring the effectiveness of implementation and adjusting where needed to achieve outcomes

harnessing the knowledge of Indigenous Australians to better inform how the environment is managed.^{^[22]}

In April 2024, Professor Samuel described the Act and its associated regulations as ‘gobbledegook’ and said the regulatory framework had been an ‘abysmal failure’ at protecting ‘our environment over the past 25 years’.^{^[23]}

Recommendations relevant to the Bills before the Parliament

This section provides a brief outline of the Samuel Review’s recommendations of most relevance to the Bills before the Parliament (noting the inter-linked nature of the recommendations).

Trust and transparency

The Samuel Review found that ‘Australians do not trust that the EPBC Act is delivering for the environment, for business or for the community’.^{^[24]} The review highlighted numerous areas of concern, including:

limited and late opportunities for community to engage in the approvals process
lack of transparency of how (and what) information is collected and incorporated into decision-making
a trend towards post-approval arrangements in which specific impacts and treatments are considered in management plans requiring subsequent approval by the department
a lack of transparency in relation to allegations of non-compliance with the Act.

Professor Samuel identified a lack of trust as ‘an underlying driver behind calls for independent agencies to be established to make decisions under the EPBC Act’ – however, this approach was not supported by the review.^{^[25]}

Rather, the review recommended the establishment of legally enforceable outcomes-focused National Environmental Standards (NES) and an independent statutory Environmental Assurance Commissioner to oversee robust revised accreditation arrangements, audit Commonwealth decision-making and accredited arrangements, and provide annual reports to the Parliament.^{^[26]}

Compliance and enforcement

The Samuel Review found that ‘there has been limited activity to enforce the EPBC Act over the 20-year period it has been in effect and a lack of transparency about what has been done’.^{^[27]} The review found that compliance and enforcement powers were outdated, while ‘the complexity of the legislation … [made] both voluntary compliance and the pursuit of enforcement action difficult’.^{^[28]}

The review recommended the establishment of an Office of Compliance and Enforcement within the department, to be ‘provided with a full suite of modern regulatory powers and tools, and adequate resourcing’, and guided by a NES for compliance and enforcement, which would also apply to accredited arrangements.^{^[29]}

The review outlined the limited number of compliance outcomes (41 breaches – 31 relating to requirements for environmental approvals, and 10 wildlife trade) and infringement notices issued (22 since 2010) under the Act, reflecting the absence of a strong compliance culture and lack of resourcing, and observed that penalties are not ‘commensurate with the harm of damaging a public good of national interest’.^{^[30]}

In June 2023 the Minister for the Environment initiated a review of compliance with environmental offsetting requirements under existing approvals.^{^[31]} In May 2024 the department released a high-level overview of the outcome of the review. It found that 1-in-7 projects (in a subset of 222 projects) ‘were non-compliant or potentially non-compliant with their approval conditions’ and 1-in-4 projects (in a separate subset of 120 projects) had ‘not, or potentially not, secured the necessary offsets’ required by their conditions of approval.^{^[32]} It should be noted that approval conditions routinely require the preparation and approval of management plans prior to commencement of approved actions (or parts thereof) and it is unclear whether there is a similar level of non-compliance.

Environmental data and information

The Samuel Review found that ‘decision-makers, proponents and the community do not have access to the best available data, information and science’, resulting in ‘sub-optimal decision-making, inefficiency and additional cost for business, and poor transparency for the community’.^{^[33]} The report recommended a ‘quantum shift’ in the department’s data collection and information systems:

Better data and information will improve the efficiency of:

setting clear outcomes, effectively plan to deliver them and efficiently regulate to achieve them

ensuring the mechanisms for public and private-sector investment in restoration are well targeted and delivers the best returns

understanding the baseline starting point, and to monitor and report on the impact of activities and to adjust them where needed.^{^[34]}

Professor Samuel observed that ‘large amounts of valuable environmental data collected are not shared within government, between governments or made available for further use’.^{^[35]} He noted potential legal barriers to information sharing, but considered claims that data collected by proponents and their consultants to inform environmental impact assessments were commercial-in-confidence and subject to copyright unacceptable.^{^[36]}

The review recommended the appointment of a Custodian to oversee a ‘national environmental information supply chain’, the designation and management of National Environmental Information Assets, the development of a NES for data and information, and an overhaul of the department’s information systems.^{^[37]}

Monitoring, evaluation and reporting

The Sameul Review observed that there was ‘no effective framework to support a comprehensive, data-driven evaluation of the EPBC Act to determine whether it [was] achieving its intended environmental outcomes’.^{^[38]} The review recommended development of a ‘coherent framework to monitor and evaluate the effectiveness of the EPBC Act in achieving its objectives’, which should be embedded in the Act itself and supported by a NES for environmental monitoring and evaluation.^{^[39]} The review also recommended an overhaul of national state of the environment reporting and to mandate a government response.^{^[40]}

Australia’s first Commonwealth Environment Protection Agency and the disbanding of the National Environment Protection Council

The Hawke Labor Government first committed to the introduction of a Commonwealth environment protection agency (CEPA) in March 1990.^{^[41]} In May 1990, an environment protection division was established within the then Environment Department, before the CEPA was formally established on 20 August 1991.^{^[42]}

The CEPA’s objects were to ‘develop a consistent national approach to environment protection, including the facilitation of national environmental quality standards in cooperation with the States and Territories’.^{^[43]}

The CEPA assumed the ‘existing environment protection functions’ of the department, including marine pollution, sea dumping, chemical assessment, and administration of the Environment Protection (Impact of Proposals) Act 1974 (the predecessor of the environmental impact assessment parts of the EPBC Act).^{^[44]} It was also ‘to be actively involved in streamlining and improving the environmental impact assessment process’.^{^[45]}

However, the CEPA ‘did not have the legal standing or enforcement powers of an independent environment protection authority’, as is the case with state and territory EPAs.^{^[46]} Although this was flagged as a future possibility, the CEPA’s role was described as ‘facilitative and educative’ rather than coercive.^{^[47]}

In August 1996 the Howard Coalition Government announced that the ‘EPA [would] be revamped and its programs refocused to advance those aspects of environment protection which are of national interest, and Australia’s international obligations in protecting the environment’.^{^[48]}

In November 1996, the agency became the Environment Protection Group of Environment Australia. The group was:

… responsible for advising on and developing measures to protect the environment at the national level, such as in relation to air and water quality, pollution avoidance, waste management and hazardous chemicals; and [oversaw] the Commonwealth Government response to climate change.^{^[49]}

These functions have generally remained within the various iterations of the federal department of environment since that time.

Separately, under the 1992 Intergovernmental Agreement on the Environment (IGAE), the Commonwealth, States and Territories, and President of the Local Government Association agreed to establish a National Environment Protection Authority (NEPA).^{^[50]} The NEPA was to be a Ministerial Council comprised of Commonwealth, state and territory ministers (although not necessarily environment ministers) and chaired by the Commonwealth minister.^{^[51]} The NEPA was to establish measures for the protection of the environment and to monitor and report on their implementation: ambient air quality; ambient marine, estuarine, and freshwater quality; noise; the assessment of site contamination; motor vehicle emissions; and the use and recycling of materials.

The National Environment Protection Council (NEPC) was established by the National Environment Protection Council Act 1994 (NEPC Act) and is implemented through mirror state and territory legislation. The NEPC has made 7 National Environment Protection Measures (NEPMs),^{^[52]} while national guidelines for fresh and marine water quality have been made under the National Water Quality Management Strategy.

The fourth statutory review of the NEPC Act, released in July 2019, found that the administration of the Act was inefficient and ineffective, resulting in significant delays or avoidance practices, and that implementation of some NEPMs was ineffective. The review recommended the repeal and remaking of the Act, or at least substantial amendments.

In 2020, the NEPC was disbanded in accordance with the recommendations of the Conran Review of COAG Councils and Ministerial Forums, and its functions have been assumed by the ad hoc Environment Ministers’ Meeting. In April 2021, the Environment Ministers endorsed the NEPC’s response to the Conran Review and tasked the Senior Officials Group with considering potential legislative amendments and their implications.

It is unclear whether this work has progressed, and whether consideration has been given to potential roles of proposed EPA and EIA in any reform of the NEPC Act and its implementation.

The government’s Nature Positive Plan

On 8 December 2022, the Minister for the Environment launched the Albanese Government’s Nature Positive Plan (NPP) as its response to the Samuel Review.^{^[53]} The Nature Positive Plan has 3 main components:

better environment and heritage outcomes, to be delivered through NES, improved conservation planning, partnerships with First Nations (including new cultural heritage protection laws), and improved coverage of climate, water and nuclear actions
better, faster decision-making and clear priorities, to be delivered through accreditations of state and territory and other agency approvals based on NES, regional planning, new environmental offset arrangements, a nature repair market, and streamlining of assessment and approval processes
accountability and trust, to be delivered by the establishment of an independent Environment Protection Agency, improved collection and dissemination of environmental data, introduction of environmental economic accounts, reform of statutory committees, and transformed management arrangements for Commonwealth National Parks (including improved engagement with First Nations).

The Minister said ‘Australia’s environment laws are broken’, and promised legislation built ‘on three basic principles: clear national standards of environmental protection, improving and speeding up decisions, and building trust and integrity’ and an independent Environment Protection Agency.^{^[54]}

Elements of the Nature Positive Plan relevant to the Bills

This section provides an overview of the elements of the Nature Positive Plan relevant to the Bills before the Parliament.

An environment protection agency

Consistent with Labor’s earlier commitments,^{^[55]} the NPP confirms that an independent EPA will be established to undertake regulatory and implementation functions under the EPBC Act and other relevant Commonwealth laws.^{^[56]} The EPA will be established as a statutory Commonwealth entity, led by a Chief Executive Officer (CEO) who will be appointed for a fixed term. The NPP states however that ‘given the Minister’s role in sensitive environmental decision making, the EPA will not have a statutorily appointed board’.^{^[57]}

The Minister will be able to issue the EPA with a statement of expectations, including that decisions are made in a manner consistent with NES, but not able to otherwise direct the agency. The Minister will be able to call in decisions, subject to transparency measures, and to approve proposed developments with unavoidable negative impacts on MNES where this is clearly in the national interest.

In line with the NPP’s revised accreditation arrangements, the EPA will also be responsible for assuring the operations of states, territories and other Commonwealth decision-makers under accreditation arrangements, benchmarked to NES.^{^[58]}

A data division

Improved access to high quality data is central to the Nature Positive reforms.^{^[59]} The NPP states that a data division will be established within the department and have a legislative mandate ‘to provide clear authoritative sources of high-quality environmental information’.^{^[60]}

The data division will be an ‘independent environmental information office’ led by a Chief Environmental Data Officer, who will develop and implement a national environmental data strategy and act as custodian of the national environmental information supply chain, including the Biodiversity Data Repository.^{^[61]}

The data division will also be responsible for expanded state of the environment reporting, analysis of progress towards environmental goals, and delivering environmental economic accounts. A NES for data and information will also be developed.

Improved compliance and enforcement

The NPP indicates that compliance and enforcement functions will be undertaken by a new ‘strong independent environmental regulator’ and states that the EPA will be responsible for producing a compliance and enforcement policy.^{^[62]} However, while the NPP links the availability of data to ‘strengthened compliance and enforcement’ and states that a NES for compliance and enforcement will be established,^{^[63]} it does not elaborate further on how functions and powers might be improved.

What is ‘nature positive’?

Nature positive has been described as the ‘lodestar’ for the environment, equivalent to ‘net zero’ for climate change.[64] The phrase emerged in 2020 during international negotiations of the Kunming-Montreal Global Biodiversity Framework (GBF), when global environment and development organisations called on governments to establish ‘a nature-positive global goal for nature that could be integrated with other global goals to create an equitable, carbon-neutral, nature-positive world’.^{^[65]} The collective described nature positive as meaning ‘halting and reversing nature loss by 2030, measured from a baseline of 2020’, and articulated ‘3 measurable temporal objectives: zero net loss of nature from 2020, net positive by 2030, and full recovery from 2050’.^{^[66]}

The broad premise of nature positive is reflected in the Leaders Pledge for Nature, which explicitly recognises the interdependence of the biodiversity and climate crises, and commits leaders to reverse biodiversity loss by 2030 and achieving the Convention on Biological Diversity’s (CBD) vision of living in harmony with nature by 2050. And while the term nature positive is not used in the Global Biodiversity Framework, the goals and targets reflect the ambitions of nature positive.

The Nature Positive Initiative brings together these elements in a widely referenced definition:

Halt and reverse nature loss by 2030 on a 2020 baseline, and achieve full recovery by 2050.[67]

According to the Nature Positive Initiative, ‘delivering the Nature Positive goal requires measurable net-positive biodiversity outcomes through the improvement in the abundance, diversity, integrity and resilience of species, ecosystems and nature processes’ over different scales.[68]

Nature positive has been described as an ‘optimistic, intuitive and clear summary of where society needs to get to’, however, academic experts have cautioned against the dilution of its intent.^{^[69]}

Nature positive is particularly relevant to the application of the mitigation hierarchy that obliges development proponents to avoid and mitigate the impacts of an action, before seeking to rely on the use of environmental offsets to offset any remaining unavoidable impacts of the action on threatened species and ecological communities, or other values. Academic experts have articulated the difference between an environmental offset scheme that requires ‘no net loss’, ‘net positive / gain [x]%’ in relative terms, and ‘net positive / gain’ in absolute terms – with only the later aligned with nature positive.[70] Of note, these stakeholders have raised concerns the Nature Positive Plan may actually weaken environmental outcomes because ‘restoration action and restoration contribution’ requirements would allow developers to make a payment (a restoration contribution) to the government to compensate for the unavoidable impacts of an action where environmental offsets cannot reasonably be found and that this payment could be used for purposes other than protecting the value impacted (that is, the specific habitat of a threatened species in proximity to the location of impact).[71]

More broadly, Milner-Gulland argues nature positive targets must be supported by:

a measured biodiversity baseline
a timeframe
a target (e.g. biodiversity 20% above baseline)
a clear set of actions to be carried out, costed and sequenced
an analysis of how these actions will add up to get us to net gain
regular monitoring and disclosure of progress towards our goal.^{^[72]}

The staging of Nature Positive reforms

On 16 April 2024, the Minister announced that the Nature Positive reforms would be progressed in a staged manner.^{^[73]} The stages comprise:

Establishing the nature repair scheme and expanding the ‘water trigger’ to all forms of unconventional gas development (completed in December 2023)
Creating the EPA and EIA
Delivering substantive reform to the EPBC Act, as outlined in the Nature Positive Plan.

The Minister also provided additional information about the EPA’s proposed powers, including the ability to issue Environment Protection Orders (‘stop-work’ orders), auditing, and the introduction of tiered and substantially higher penalties.

The Minister said,

Australia will get its first independent national Environment Protection Agency with new powers and penalties to better enforce federal laws.

Stage two will also deliver better information and transparency, and faster environmental approvals.

These reforms will provide greater certainty to business and help drive investment in nation-building projects.^{^[74]}

On 28 May 2024, the department released further details on key issues to be considered in stage 3 of the reforms.^{^[75]} Departmental officials had earlier discussed the diverse feedback provided by stakeholders, and in particular that different stakeholder groups (particularly business and environment groups) hold entrenched views that have been difficult (or indeed impossible) to reconcile.^{^[76]} Moreover, DCCEEW’s stated objective was to reach a shared position on contentious issues and minimise disagreement and misunderstanding where possible.^{^[77]} Six key issues will be subject to further consultations:

assessment and approval systems
restoration contributions
Standard for First Nations Engagement and Participation in Decision Making
regional forestry agreements (with an exception from the application of the EPBC Act currently provided in Division 4 of Part 4)
exemptions (prior authorisation and continuing use) (currently provided in sections 43A and 43B of the EPBC Act)
climate change.

In her second reading speech, the Minister explained that the EPA was being established ahead of the broader reforms to ‘avoid teething problems’ in the establishment of new agencies and to allow ‘a smoother transition of responsibilities from the department to the new agency’.^{^[78]}

Australia’s international commitments to environmental protection

The Australian Government implements its obligations under the Convention on Biological Diversity (CBD) and a range of other biodiversity-related conventions and treaties through the EPBC Act.^{^[79]} In December 2022, the Conference of the Parties to the CBD adopted the Kunming-Montreal Global Biodiversity Framework, setting out 4 global 2050 goals and 23 global 2030 targets to halt and reverse biodiversity loss, consistent with the objectives of the CBD. The GBF replaces the Strategic Plan for Biodiversity 2011–2020 and the Aichi Targets, none of which were fully met.^{^[80]}

Since 2021, the Australian Government has made a range of commitments consistent with the GBF targets, including:

a commitment to protect 30% of land and 30% of ocean ecosystems by 2030 (Target 3)^{^[81]}
a commitment to halt forest loss and land degradation and promote sustainable use of forest products (Targets 2 and 10)^{^[82]}
zero new extinctions (Goal A, Target 4)^{^[83]}
working towards eliminating plastic pollution (Target 7).^{^[84]}

Target 14 of the GBF is particularly relevant to the current reforms, including improvements to the environmental impact assessment process, state of environment reporting, and the establishment of national environmental accounts. Target 14 seeks to ‘ensure the full integration of biodiversity and its multiple values into policies, regulations, planning and development processes … strategic environmental assessments, environmental impact assessments and, as appropriate, national accounting, within and across all levels of government and across all sectors, in particular those with significant impacts on biodiversity …’.

In addition, Target 21 is relevant to the Nature Positive Plan’s emphasis on increasing the availability of environmental information to improve understanding of the environment and enhance decision-making, and to ensure the free, prior and informed consent of indigenous peoples to both the sharing of traditional knowledge of the management of land and conservation and sustainable use of biodiversity, and understanding and consent (where required) of development projects. In this later respect, the government has committed to the development of a National Environmental Standard for First Nations engagement and participation in decision-making.[85]

In September 2022, the Prime Minister Anthony Albanese committed to the wide-ranging Leaders Pledge for Nature, which ‘aims to step up global ambition to tackle the climate crisis, halt biodiversity loss and deliver a nature positive world by 2030’ (emphasis added).^{^[86]} The Minister has linked elements of the Nature Positive Plan to Australia’s international obligations and Australia will host a Global Nature Positive Summit in October 2024.^{^[87]}

Australia will be required to report on its progress towards the achievement of the goals and targets through the development of a National Biodiversity Strategy and Action Plan and the CBD’s national reporting mechanism. Consultations on updating Australia’s Strategy for Nature to reflect Australia’s commitments under the GBF concluded in April 2024.

Consultation on the Nature Positive reforms

On 12 October 2023 the Minister announced that consultation with ‘experts from more than 30 groups, including environment, business, and industry’ would commence soon and ‘occur on a rolling basis over the coming weeks and months’.^{^[88]} Senator Jenny McAllister (Assistant Minister for Climate Change and Energy) told Senate Estimates that ‘subject matter experts from business, industry, environment groups, the science community and civil society’ had been invited to participate in these consultations.^{^[89]}

At the time of writing, a series of four 2-day consultation sessions have occurred (in late October and December 2023, and February and March 2024). During these sessions, stakeholders were provided with a series of draft policy papers (including of some national environmental standards) and sections of draft legislation. Stakeholders were able to discuss the materials with departmental experts and provide written feedback.

The draft policy papers were subsequently made available on the department’s ‘Have your say’ webpage. The department has held 3 public webinars providing a high-level overview of the reforms, and a general public submission period closed on 30 March 2024.

These consultations are in addition to a range of stakeholder reference and working groups convened by the department during development of the Nature Positive Plan.^{^[90]} Consultations on some aspects of the reforms, such as for the development of the National Environmental Standard for First Nations engagement and participation in decision-making, are being progressed separately with First Nations stakeholders.

The ‘budget lockup-style’ consultations have been criticised as both secretive and challenging, with little clarity provided as to how feedback was being incorporated (or not) into the next iteration of the materials.^{^[91]}

Stakeholders have previously expressed concern about a lack of opportunity for broad public consultation prior to the introduction of the Bills to the Parliament.^{^[92]} In April 2024, the Minister committed to publicly releasing an exposure draft of the Bills implementing the stage 3 reforms prior to their introduction to Parliament.^{^[93]}

Committee consideration

Senate Environment and Communications Committee

The Senate Environment and Communications References Committee inquiry into Australia’s extinction crisis was established on the 4 August 2022. The Committee’s broad terms of reference include the adequacy of Commonwealth environmental laws, including the EPBC Act, as well as the Commonwealth Government’s domestic and international obligations in conserving threatened species, the Samuel Review and the State of the Environment 2021 report. It is currently due to report on 28 June 2024.

The Committee’s most recent public hearing, held on 17 April 2024, heard from environmental law experts, environment and climate change advocacy groups, and departmental representatives on the government’s Nature Positive reforms.

In its third interim report, released on 24 May 2022, the Committee recommended that the Australian Government ‘urgently and unequivocally commit to publicly releasing exposure draft legislation of the full package’ of Nature Positive reforms, and commit to a timeframe for the introduction of the Bills so as to allow a reasonable period for passage of the legislation before the end of the 47th Parliament.^{^[94]} The Australian Labor Party members provided a dissenting report.

The Bills are expected to be referred to the Senate Environment and Communications Legislation Committee for inquiry and report.

Senate Standing Committee for the Scrutiny of Bills

At the time of writing, the Senate Standing Committee for the Scrutiny of Bills was yet to consider the Bills.

Policy position of non-government parties / independents

Australian Greens

The Australian Greens have been calling for comprehensive reform of the EPBC Act for a considerable period of time, including by introducing numerous private members’ Bills seeking to address perceived deficiencies in the Act (such as the absence of a climate trigger).^{^[95]}

The Australian Greens’ environment spokesperson Senator Sarah Hanson-Young welcomed the release of the ‘long awaited’ Nature Positive Plan but expressed concern that the ‘government lacks any sense of urgency to halt and reverse the unsustainable environmental trajectory’ of Australia.^{^[96]} The Senator indicated the Greens would push for a range of amendments, including strengthening the proposed EPA and the inclusion of a climate trigger.

More recently, following the Minister’s announcement of the second stage reforms, Senator Hanson-Young called the staged approach to reform ‘a broken promise’ and said the Government’s approach would do nothing to address ‘two of the greatest threats to Australia’s wildlife’, being habitat destruction and climate change.^{^[97]} The Senator also said:

An environment protection agency without teeth is not a substitute for the powerful watchdog experts have called for. A body with no powers of enforcement cannot even take law-breakers to court, let along bring the level of reform required to fix the biodiversity crisis. While more environmental data and offsets auditing is welcome, this is not reform. This is something Australia expect the Government should already be doing.^{^[98]}

Independent members and Senators

Many first-term independents campaigned on a platform of stronger environmental laws and climate action.

In December 2022, Senator David Pocock welcomed the release of the Nature Positive Plan, but ‘warned it will need to be backed by substantial, genuine investment if it is to be successfully implemented’.^{^[99]} In regard to the proposed EPA, Senator Pocock said:

It should be independent and well-resourced with the ability to audit all decisions referencing robust national environmental standards. The EPA board, CEO and staff should all be independent and hold all relevant qualifications and be free from political interference.^{^[100]}

More recently, Senator Pocock acknowledged the establishment of ‘a strong, independent’ EPA would be ‘a positive development’ but argued it ‘would only be effective if Australia’s broken environmental laws are comprehensively reformed’.^{^[101]} He said:

Fixing our broken environmental laws is urgent. This reform is overdue and the longer we delay the more Nature is destroyed and the more deeply damaging projects are approved.^{^[102]}

In April 2024, independents Zali Steggall, Kate Chaney, Zoe Daniel, Dr Helen Haines, Senator David Pocock, Dr Monique Ryan, Dr Sophie Scamps, Allegra Spender, Kylea Tink and Andrew Wilkie called on the Environment Minister ‘to publicly re-commit to legislating the complete package of [Nature Positive] reforms during this parliamentary term’.^{^[103]}

Delaying and splitting these reforms breaks an explicit promise to the electorate and undermines the Albanese Government’s commitment to addressing the climate and biodiversity crises. At a time when Australia is already experiencing more climate impacts, our communities cannot afford any further delays to protect our environment whilst legislation prioritising fossil fuel projects is allowed greater priority.

Four years on since the Samuel Review made its recommendations, this comprehensive package of environmental reforms is finally on the agenda, supported by input from experts and environmental groups. The government is well-positioned to deliver an effective package to the parliament soon. There is too much at stake for both our environment and the climate for any further delay.^{^[104]}

Liberal-National Coalition

The Liberal-National Coalition’s response to the Samuel Review is outlined in the Parliamentary Library publication ‘Reform of Australia’s national environmental law’.

The Opposition Leader, Peter Dutton, has described the proposed Nature Positive reforms as likely to ‘have significant ramifications for the mining sector’, and unbalanced.^{^[105]}

In May 2024, Mr Dutton described the Nature Positive reforms as ‘an existential threat to mining’ and outlined the Coalition’s proposed reforms to the EPBC Act: cut assessment timeframes in half without compromising standards, restrict the use of ‘stop clock’ provisions, accredit states and territories to provide approvals where they meet Commonwealth standards, limit the ability of third parties to challenge decisions under the EPBC Act, and re-introduce geological bio-regional assessments.^{^[106]} He said the EPA, ‘an unaccountable new green bureaucracy’, ‘will only create more complexity and regulation at a time when we need to simplify and de-regulate processes’.^{^[107]}

The Shadow Minister for the Environment, Senator Jonathan Duniam, has described the Nature Positive reforms as ‘a ticking time bomb ready to cause major damage to businesses, industries and communities across Australia’.^{^[108]} Senator Duniam has expressed concern ‘that some of the proposed changes will give too much power to bureaucrats and will make our environmental laws unworkable for many businesses’, referring to the proposed EPA as both a classic example of duplication and an ‘abdication of the Minister’s responsibility’.^{^[109]}

The Senator has offered to ‘work with the Government to produce environment legislation that will endure’.^{^[110]}

Position of major interest groups

This section summarises views expressed by major interest groups in relation to the government’s Nature Positive Plan, in the lead up to the introduction of the Bills, and in media reporting. While many interest groups have expressed views on the need for broader reform of the EPBC Act, as proposed by the Nature Positive Plan, or on specific aspects thereof, this section focuses on the views most relevant to these Bills.

Academic and legal experts

The Biodiversity Council, in a view shared by other conservation scientists and legal experts, has said ‘delaying comprehensive reforms to national environmental laws is a significant step back from what the Albanese Government committed to in its Nature Positive Plan’.^{^[111]} The Biodiversity Council argues that:

While new institutions such as the EPA and Environment Information Australia may be steps in the right direction, they will not halt the decline of native species and ecosystems if they are tasked with administering the current laws which have been slammed as ineffective.

We need new laws that deliver robust national standards, strong protections for critical habitats and reformed conservation planning instruments, and it’s frustrating that these measures have been deprioritised.^{^[112]}

The Biodiversity Council has put forward ‘10 essential elements’ of the reforms.^{^[113]}

Honorary Associate Professor Peter Burnett (also a councillor at the Biodiversity Council) suggests the government’s approach to the reforms has moved to the ‘realm of regulatory co-design’, implying an intention to ‘proceed by consensus’.^{^[114]} Mr Burnett argues the proposed reforms open ‘the possibility of a grand bargain, whereby developers and business get much faster approvals (or rejections) in exchange for ensuring nature as a whole is better off as a result of our activities’. This would require concessions by key stakeholders, minimum viability thresholds for key environmental values, transparent decision making (including when thresholds are crossed), and funding for the science and planning needed to underpin the reforms.

Environment Justice Australia (EJA) and the Places You Love Alliance (PYLA; representing 8 environment advocacy and environmental law groups, including the Environmental Defenders Office (EDO)), commenting on consultation materials, argue that decision-making criteria should be drafted so as to ‘remove excessive decision-maker discretion’, such as the making of ‘subjective decisions that “satisfy” the EPA’s CEO’.^{^[115]} EJA asserts that ‘environmental decision-making must be based on the best available science and clear rules’.^{^[116]} EJA, PYLA, and the Wentworth Group of Concerned Scientists have expressed a view that the EPA CEO should be accountable to an independent board with qualified members and that there should not be, or should only be a very limited, Ministerial call-in power.^{^[117]}

Climate advocacy groups

Climate advocacy groups have been strongly arguing for the inclusion of a climate trigger in the EPBC Act, pointing to the approval of 740 fossil fuel projects since the EPBC Act’s commencement and dozens more projects at various stages of approval.^{^[118]} Marine and climate scientists have also argued that the reformed laws ‘must consider potential climate impacts, including direct and downstream pollution’.^{^[119]}

The Lock the Gate Alliance has expressed concern about the proposed changes to the ‘stop clock’ provisions, suggesting ‘it delivers a fast-track for damaging projects by allowing proponents a right of veto over whether the minister can stop the clock on decisions if more scientific information is needed’.^{^[120]}

In April 2024, The Australia Institute (TAI) jointly released an open letter with 100 climate advocacy groups calling for Australia’s nature laws to include:

a climate trigger, inclusive of scope 3 emissions
a public right to appeal an environmental decision on its merits
a prohibition on the delegation of decision-making on MNES to state and territory governments and other statutory authorities
the proper assessment of cumulative impacts in decision-making.^{^[121]}

Environment advocacy groups

Environment advocacy groups have been highly critical of the EPBC Act for a long time, and have been equally critical of delays in the delivery of the Nature Positive reforms.^{^[122]} These stakeholders argue that the establishment of the EPA will do little on its own to arrest environmental decline without the fundamental reforms required to the Act.^{^[123]} For example, WWF-Australia described the EPA as a potential ‘game changer for the environment’ but argued that the legislation ‘must be followed by a comprehensive package of reforms to prevent extinctions’.^{^[124]}

Moreover, these stakeholders argue that the EPA must be well-resourced and truly independent, with an independent board free from political interference.^{^[125]} For example, the Australian Conservation Foundation (ACF) has said:

A strong, independent and well-resourced regulator is critical so Australia can move beyond the present situation, where vested interests influence decision making and undermine nature protection.^{^[126]}

Similarly, the Humane Society International (HSI), while welcoming both the EPA and EIA, argued:

… the Bills as proposed fail to provide strong governance arrangements, clear objects and duties for the EPA to implement, and a definition of “nature positive” that is clear and measurable and can be used to hold decision makers to account.^{^[127]}

HSI has also called for nature positive to be defined in way that ‘reflects internationally recognised best practice definitions focused on measurable repair and recovery’.^{^[128]}

In October 2023, the Wilderness Society coordinated an open letter signed by 93 environment, human rights and First Nations groups calling for a suite of rights to be enshrined in Australia’s environmental laws: the right to know, the right to participate, the right to challenge and cultural and self-determination rights of First Nations (including free, prior and informed consent).^{^[129]} Following the introduction of the Bills, the Wilderness Society – together with EJA and the Conservation Council of WA – expressed concern about the design of the EPA, and called for:

… key integrity measures for the EPA to be added to the Bill to safeguard against political interference, including:

An independent board, which would appoint the EPA’s CEO

Clear duties and objectives

Effective public participation in decision-making and strong civil enforcement provisions

Adequate funding.^{^[130]}

These stakeholders generally view the establishment of the EIA to enhance the availability and quality of environmental information available as a positive step.

Industry groups

Agriculture

Less than 3% of referrals under the EPBC Act come from the agriculture sector, although a review has found farmers ‘perceive the Act to be complex and difficult to follow and therefore a barrier to development (and conservation of biodiversity)’.^{^[131]}

The National Farmers Federation (NFF) has said ‘any reforms must meet the test of being easily understood, not compromise business as usual farming practice and not set unreasonable thresholds that would prevent sustainable business practice’.^{^[132]}

Farmers for Climate Action (FCA) welcomed the proposed EPA, to remove uncertainty and politicisation of the environment, but strongly opposed the inclusion of a broad ministerial call-in power.^{^[133]} It suggested that the Minister only be able to step in if the EPA doesn’t make a decision within the required timeframe.

Resources

Key mining stakeholders have raised a range of concerns about the Nature Positive reforms, with strong opposition to the proposed EPA and reservations about the balance to be given between environment, social and economic considerations in decision-making.^{^[134]} Some resources companies have called for meaningful consultation, particularly in the context of the strategic assessment under the EPBC Act for offshore petroleum and greenhouse gas activities.^{^[135]}

The Minerals Council of Australia (MCA) has said that ‘democratically elected government ministers are best placed to make decisions in the interests of the Australian people and economy’, evidencing support for the retention of a Ministerial call-in power (if not the EPA itself), a view shared by the Association of Mining and Exploration Companies (AMEC).^{^[136]} The MCA has also expressed support for the establishment of EIA, which it sees as providing greater certainty and reducing costs, although AMEC has raised concerns about the ‘management of sensitive commercial intellectual property and its curation’.^{^[137]}

Other

The Business Council of Australia (BCA) supports reform of the EPBC Act, but has argued that any draft legislation needs to appropriately balance ‘environmental outcomes with the economic and social needs of the community’.^{^[138]} The BCA has said ‘an independent EPA makes sense for enforcement and compliance’, but raised concerns that the devolution of decision-making responsibility for projects ‘risks diminishing the power and responsibility of the elected minister’. It has also expressed concerns about the proportionality of increased penalties. It describes the establishment of EIA as ‘a positive step in ensuring businesses and communities have transparency in their data’. The BCA expressed similar concerns following the introduction of the Bills.^{^[139]}

States and territories

States and territories have been involved in discussions about the Nature Positive Plan and associated reforms through the Environment Ministers’ Meeting, senior officials committee, and other consultation processes (including the consultations outlined above).^{^[140]}

The governments of NSW, Queensland, South Australia and Victoria are pursuing regional plans in some regions of these states, associated with renewable energy, critical minerals and urban development.^{^[141]}

Western Australian Premier Roger Cook is reported to have personally lobbied the Prime Minister and Minister for the Environment to not ‘add more “green tape” to key WA industries’, while the WA Minister for the Environment Reece Whitby is reported to have called for the draft of the reform legislation to be publicly released before introduction to Parliament.^{^[142]}

Financial implications

In the May 2023–24 Budget, the government allocated $214.1 million over 4 years from 2023 (and $4.5 million per year ongoing) for the ‘Nature Positive Plan – better for the environment, better for business’ measure.^{^[143]} This included:

$121.0 million over 4 years from 2023–24 to establish EPA ‘to enforce environmental laws and restore confidence in Australia’s environmental protection system’
$51.5 million over 4 years (and $4.5 million per year ongoing) to establish EIA ‘to provide an authoritative source of high-quality environmental information’.^{^[144]}

At that time, Independent Andrew Wilkie claimed, with reference to analysis by the Parliamentary Budget Office, that the allocated funding would leave the proposed ‘EPA chronically underfunded’.^{^[145]}

In the May 2024–25 Budget, the government allocated $96.6 million over 4 years from 2023–24 to ‘strengthen environmental approvals for renewable energy, transmission, and critical minerals projects, deliver additional regional plans, and undertake targeted scientific studies to improve the environmental data used in decision-making’.^{^[146]} The funding is provided as part of the Future made in Australia – strengthening approvals process measure.

Based on information in a fact sheet accompanying the Minister’s 16 April announcement and the Minister’s budget media release, this funding comprises:

$7 million for more support for staff to assess project proposals from business, and more tailored support to help business more effectively comply with environmental law

$65.1 million for extra research into threatened species so sensitive species can be more easily avoided and suitable projects can be more quickly approved based on robust, existing publicly available data

$24.5 million for better planning – working with state and territory governments – in seven priority regions so it’s clearer to business where complying development can more easily occur and where the ‘no go’ areas are.^{^[147]}

The budget also provided:

$19.9 million over four years from 2024–25 for the [DCCEEW] to develop, agree and maintain a national priority list of renewable energy related projects and process assessments for priority projects

$17.7 million over three years from 2024–25 to reduce the backlog and support administration of complex cultural heritage applications under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and progress the reform of Australia’s cultural heritage laws

$5.3 million in 2024–25 in additional funding to process legislative reforms relating to the Nature Positive Plan.^{^[148]}

The Explanatory Memoranda to the Bills state that ‘further costs of implementation would be subject to future decisions of Government’, including partial cost-recovery arrangements relevant to the EPA’s proposed functions and powers under the environmental laws.^{^[149]}

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bills’ compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bills are compatible.^{^[150]}

Parliamentary Joint Committee on Human Rights

At the time of writing, the Parliamentary Joint Committee on Human Rights was yet to consider the Bills.

Key issues and provisions

Nature Positive (Environment Protection Australia) Bill 2024

Outline of provisions

The Bill establishes a statutory agency to be known as Environment Protection Australia (EPA) and sets out its functions.[151] The EPA would be a non-corporate Commonwealth entity, with a Chief Executive Officer (CEO) as the accountable authority of the EPA for the purposes of the Public Governance, Performance and Accountability Act 2013 (PGPA Act). The EPA consists of the CEO, staff and other persons whose services are made available to it.[152]

The CEO would be appointed by the Governor-General, through a process determined by the Minister. They may only be appointed if the Minister is satisfied that the person has the requisite knowledge and experience (including both public sector administration or governance and regulation, and specialist knowledge in at least one of 7 specified fields relevant to the work of the EPA) and does not have any conflicts of interest.[153]

The Bill contains standard provisions relating to the engagement of the CEO, including a narrow set of circumstances in which the Governor-General may terminate the CEO’s appointment.[154] The Explanatory Memorandum states, in relation to those circumstances, ‘these reasons strike the right balance of ensuring that a duly appointed CEO cannot be terminated without good cause, thereby supporting the independence of the CEO’.[155]

The Bill allows the Minister to make rules as permitted by, or necessary and convenient to the operation of the Act.[156] Matters to be addressed could include requiring the publication of information about registrable decisions in the Register, such as the grant of permits or licences, or compliance outcomes, under the environmental laws for which the CEO has functions.[157]

The Bill contains provisions, and civil penalty provisions, relating to the use and disclosure of information.[158] There may be a question about the extent to which these provisions contradict the object of the Act to support ‘transparent environmental regulatory decision-making’;[159] although, specific requirements about the release of information (such as permit applications and environmental impact assessment information) are also provided in some environmental laws.[160] Clause 25 provides the CEO with a non-coercive power to request information, advice or documents relating to the CEO’s role, and similarly relevant environmental laws provide the Minister, CEO, authorised officers, and inspectors with a range of information gathering powers.[161]

The Bill does not contain an executive immunity provision, that would protect the CEO, staff of the EPA, persons assisting, and advisory committee members from civil liability in relation to acts done in good faith in connection with the performance or purported performance of functions or duties, or exercise or purported exercise of powers, conferred by the EPA Act or other environmental laws. It is unclear why such a provision is not included in the EPA Bill, but is commonly provided in legislation establishing other environmental regulators and statutory office holders, and is provided in the EIA Bill for the HEIA.[162] The Australian Law Reform Commission has previously considered the scope and diversity of executive immunity provisions and has observed that it is ‘generally accepted that executive immunities from civil liability will at least sometimes be justified’.[163] The High Court has indicated that the interpretation of such provisions will depend on the intent of the legislature, and that such provisions should be constructed strictly.[164]

What can the CEO and the EPA do?

The CEO has the functions conferred on them by the Nature Positive (Environment Protection Australia) Act 2024 (EPA Act), the EPBC Act, 8 specified environmental laws (see Table 1 in the Appendix), related legislative instruments, and the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act).[165] In addition, the CEO may advise and assist the Minister in the exercise of their powers and performance of their functions under these laws, make recommendations in relation to improving regulation under these laws, and do anything incidental or conducive to the performance of those functions. The function of the EPA is to assist the CEO in the performance of the CEO’s functions, and the CEO can delegate any and all of their functions and powers in accordance with clause 58.[166]

Delegation and independence

The Transitional Provisions Bill provides the CEO with functions in 2 ways:

directly through amendments to 8 environmental laws and to some provisions in Parts 3, 13, 16, 17, 18 and Schedule 1 of the EPBC Act
indirectly through the use of a new delegation mechanism in the EPBC Act.

Of interest to many stakeholders, this suite of Bills does not provide the CEO with a direct power to make decisions in Chapter 4 of the EPBC Act. These decisions relate to the referral of actions that have, will have or are likely to have a significant impact on a matter of national environmental significance for a ‘controlled action’ decision, the assessment approach, and the approval of controlled actions with or without conditions. Rather, in her second reading speech, the Minister said ‘responsibility for assessing environmental approval decisions would be delegated to the CEO’ and explained that this ‘currently occurs with the department’.[167]

Proposed section 515AAA (inserted into Part 20 of the EPBC Act by Schedule 2: item 170 of the Transitional Provisions Bill) would allow the Minister (or Secretary) to delegate any and all of their functions and powers to the CEO and staff of the EPA. The use of delegation mechanisms is common in Commonwealth legislation because the Minister (or Secretary) cannot reasonably exercise all of the functions and powers provided to them in each Act administered.[168] The EPBC Act currently provides the Minister, the Secretary and the Director of National Parks (Director) with the power to delegate any and all of their functions and powers to specified persons or entities.[169] In practice, delegates make routine decisions and exercise routine powers, while the Minister makes contentious decisions personally. For example, in February 2023, the Minister personally made the decision under subsection 133(1) of the EPBC Act to not approve the Central Queensland Coal Project due to the project’s likely significant impacts on several protected matters.

Clause 14 of the EPA Bill makes provision for the decision-making independence of the CEO of the EPA. It provides that, subject to the EPA Act ‘and any other Act’ (including the EPBC Act), the CEO has discretion in the performance or exercise of their functions and powers and is not subject to direction by any person. Proposed section 515AAA of the EPBC Act does not contain the qualification found in other delegation provisions in the EPBC Act, being that the delegate is subject to the direction of the Minister (or Secretary). That is, the Minister (or Secretary) could not direct the CEO to make a particular decision (for example, to approve or refuse to approve a controlled action), or to exercise a power to achieve a particular outcome.

Clauses 16 and 17 of the EPA Bill provide for the Minister to issue the CEO with a statement of expectations and for the CEO to respond with a statement of intent (in accordance with the rules). The Explanatory Memorandum states that subclause 16(2), which expressly provides that ‘a statement of expectations cannot direct the CEO in the performance or exercise of the CEO’s functions or powers’, is ‘provided to reiterate the independence of the CEO, being free from Ministerial influence’.[170] The Minister said the statement of expectations would allow the Minister to ‘provide greater clarity about government policies and objectives relevant to EPA, including the policies and priorities the agency is expected to observe in conducting its operations’.[171]

However, where an Act provides the Minister with a power of delegation, in accordance with paragraph 34AB(1)(d) of the Acts Interpretation Act 1901, the Minister would retain the ability to exercise any and all of those functions and powers at their discretion.[172]

The instrument of delegation under proposed section 515AAA of the EPBC Act is expressed to be a ‘signed instrument’, rather than a ‘notifiable instrument’ or ‘legislative instrument’ and is therefore not required to be registered in the Federal Register of Legislation. This means the instrument may not be publicly available, as is the case for delegations under existing sections 515–515AB of the EPBC Act. Further, the Bills, as currently drafted, do not address circumstances in which the Minister (or Secretary) has delegated a particular function or power to the CEO or a member of the EPA but determines that they will make a particular decision or exercise a particular power.

During the stakeholder consultation process, the department provided a draft policy paper on a ‘Ministerial call-in power’ in relation to environmental approval decisions (that is, those in Chapter 4 of the EPBC Act).[173] However, this was conceived in relation to a situation in which the CEO was directly given the power to make these decisions (through an amendment to the relevant provisions in the EPBC Act). The drafting of the proposed mechanism was criticised by academic experts and environment stakeholders as allowing the Minister to assume the power to make a particular decision at the last minute, although the retention of decision-making power by the Minister is welcomed by industry stakeholders.[174]

This suite of Bills does not contain a mechanism to provide transparency as to the exercise of the proposed delegation and, assuming that a delegation is made, leaves considerable uncertainty in respect of the CEO’s ability to independently make key decisions regarding project approvals (in Chapter 4 of the EPBC Act) and the process by which this may be resumed and made by the Minister in any particular case. In a paper on best practice for regulators, the OECD has stated that ‘a clear allocation of decision making and other responsibilities between the responsible accountable political authority’ and the CEO is good regulatory practice.[175] It is possible that this issue will be more comprehensively addressed in stage 3 of the government’s reforms, however, the timeframe for these reforms – and indeed the passage of legislation – remains unclear.[176]

Advisory group

The CEO may establish an advisory group to provide the CEO with advice or assistance in relation to the CEO’s functions and exercise of powers.[177] The CEO has discretion in regard to the arrangements for the formation of the advisory group and its activities. The Bill does not provide any further guidance as to the skills, expertise or knowledge of members of the advisory group.[178] Notably, the CEO also has discretion in regard to publishing advice received from the advisory group, and must consider, but is not bound by, advice from it or a member of it regarding a decision to be made by the CEO.[179] The Explanatory Memorandum states:

This would support transparency in the implementation of the CEO’s functions and exercise of their powers, balanced with the need to protect information that is not appropriate to be made public. This may include advice relating to compliance matters or release of information which may compromise environmental protection of a protected matter …
Further, the advisory group is expected to consist of a variety of members, but would not be constituted as a committee, board or council. Establishing a requirement to publish all advice may limit the scope of advice that members may be willing to provide, such as culturally sensitive Indigenous knowledge. This provides flexibility for the CEO to decide whether to publish advice and balances transparency considerations with the provision of frank, independent advice.[180]

The CEO would also be able to request the advice of the Indigenous Advisory Committee and to request scientific advice from the Independent Expert Scientific Committee on Unconventional Gas and Large Coal Developments (IESC) in relation to a protected matter.[181] However, relevant provisions are not amended to explicitly allow other existing expert bodies – such as the Threatened Species Scientific Committee (TSSC) and the Australian Heritage Council – to, upon request, provide advice to the CEO.[182]

Is the governance model of the EPA appropriate?

The Bill establishes the CEO as a single-member regulator, assisted by the EPA. This contrasts with the governance model of other environment-related regulators at the Commonwealth level and in the states and territories.[183] The characteristics of selected environment-related Commonwealth regulators, including the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA), Offshore Infrastructure Regulator (OIR) and Inspector-General of Water Compliance (IG WC), are summarised in Table 2 in the Appendix.

The OECD’s best practice principles for the governance of regulators state:

The governing body structure of a regulator should be determined by the nature of and reason for the regulated activities and the regulation being administered, including its level of risk, degree of discretion, level of strategic oversight required and the importance of consistency over time.[184]

As noted in the Position of major interest groups section, academic experts and environment and climate advocacy stakeholders have argued that the national environment protection agency should be established as a truly independent statutory authority.[185] In 2017, the Australian Panel of Experts on Environmental Law (APEEL), as part of a suite of reforms, recommended the establishment of a Commonwealth Environment Protection Authority, argued that ‘it is better for routine regulatory functions to be performed by an independent authority rather than by a Minister’, and that this would increase public and industry confidence in the Commonwealth environmental approvals process.[186] APEEL noted likely differences of opinion as to whether a final environmental approval decision should be made by the Minister, but ‘in principle … support this approach’.[187]

The EDO, and others, argue that a statutory board would ‘ensure the EPA is supported by a number of experts who can provide guidance and strategic direction to the regulator’, and would ‘allow the board to delegate responsibility for implementation to the CEO and staff so that it can focus on providing strategic guidance, approval and oversight’.[188]

The National Environmental Law Association (NELA) has written:

The proposal for a CEO model without a statutorily appointed Board may be intended to curtail political influence within the EPA. However, reliance on a single-member regulator structure encourages a perception of bias, misconduct, and corruption, and increases the risk that bias, misconduct and corruption will occur because only one person (i.e. the CEO) need be influenced to affect the regulator’s decision making. To achieve legitimacy, a regulatory authority must be seen to be, and be free from external influence.

In addition to curing perceptions of improper conduct, and lowering the risk of such conduct, the presence of a Board would ensure the EPA’s strategic direction is guided by members with specialist expertise in a range of areas. Board oversight provides for a broader range of skills and qualifications than a single person fulfilling the role of CEO.[189]

Justice Nicola Pain of NSW’s Land and Environment Court has also stated that a board ‘aids in governance of an independent body’.[190]

While the Minister has repeatedly asserted the proposed EPA’s independence, the Nature Positive Plan gives the reason for not adopting a board model as ‘the Minister’s role in sensitive environmental decision-making’.[191] This references matters likely to be addressed in stage 3 of the reforms, namely, the ministerial call-in power, and clarifications to the existing national interest exemption in section 158 of the EPBC Act.

Nature Positive (Environment Information Australia) Bill 2024

Outline of provisions

The EIA Bill establishes the position of the Head of Environment Information Australia (HEIA), as a statutory officer at the senior executive service level within the DCCEEW (the department administering the environment portfolio).[192] The Explanatory Memorandum states ‘it is intended that the HEIA will be responsible for the Environment Information Australia division of the Department’ and this was established in June 2023.^{^[193]}

The Bill sets out the functions of the HEIA, including:

providing the Minister, CEO and the public with access to high quality information and data relating to the environment
developing and implementing a monitoring, evaluation and reporting (MER) framework to assess and report on the extent to which nature positive is being achieved
preparing and publishing biennial state of the environment (SoE) reports
establishing and maintaining environmental economic accounts (EEAs)
declaring national environmental information assets.^{^[194]}

While described by the Minister as ‘an independent position’,^{^[195]} the HEIA will not be subject to the direction of the Minister, Secretary or anyone else in only some of their functions, including the MER framework, SoE reporting and EEAs, and other functions prescribed by the rules.^{^[196]}

The Bill defines 3 non-exclusive categories of information – departmental information, EIA information and protected information – and establishes a framework for managing the use and disclosure of that information by entrusted persons.^{^[197]}

The Explanatory Memorandum explains:

The EIA Bill will provide a facilitative approach to data and information sharing. The EIA would not confer coercive powers on the HEIA. It is intended the HEIA will work with data custodians to bring together and make accessible data and information from a range of sources, including scientific bodies, academic institutions, project proponents, environmental groups and Commonwealth, State and Territory regulators. Information gathered by the HEIA would be used in the performance of their functions. This would include the provision of a public environment data portal.^{^[198]}

The government has committed to preparing a National Environmental Standard for Data and Information and the Nature Positive Plan indicates that the HEIA would be responsible for implementation of the standard and associated technical data guidelines.^{^[199]} The purpose of the standard is to provide guidance on the ‘assessment of appropriate and suitable data and information’ to support decision-making.^{^[200]}

Key responsibilities of the HEIA

Defining and measuring ‘nature positive’

Clause 6 defines nature positive as ‘an improvement in the diversity, abundance, resilience and integrity of ecosystems from a baseline’ and further provides that ‘in determining whether nature positive is being achieved, regard is to be had to whether there has been an improvement in the diversity, abundance and resilience of species that form part of ecosystems’, although – depending on the circumstances – an improvement may not be necessary.

Clause 13 requires the HEIA to develop and implement a monitoring, evaluation and reporting (MER) framework that enables the HEIA to gather information, assess and publicly report on whether and to what extent nature positive is being achieved in Australia. Clause 13(2) requires the HEIA to determine the baseline for measuring nature positive.

The HEIA would be required to develop the MER framework and determine the baseline by 31 December 2025 (6 months after the proposed commencement of the Act).^{^[201]}

The Albanese Government has adopted ‘nature positive’ as a key objective of its policies seeking to reverse the declining trajectory of Australia’s natural environment. The Nature Positive Plan states:

Nature positive is a term used to describe circumstances where nature – species and ecosystem – is being repaired and is regenerating rather than being in decline.^{^[202]}

Some experts have pointed out that this definition is vague, omits a baseline and target years, and therefore cannot be measured or evaluated.^{^[203]} Academic experts and environment advocacy stakeholders have argued that nature positive should be ‘clearly defined in law’ and should ‘be aligned with the international community’s understanding of “nature positive by 2030”’.[204] This framing of nature positive also focuses on biodiversity and ecosystems, and it is unclear how issues of environmental pollution will be considered.

To this end, Independent Zoe Daniel MP tabled amendments in the House of Representatives proposing that nature positive be defined as follows:

Nature positive is halting and reversing the decline in diversity, abundance, resilience and integrity of ecosystems and native species populations by 2030 (measured against a 2021 baseline, and achieving recovery by 2050.

The Explanatory Memorandum does not articulate why the baseline would be set at the discretion of the HEIA, rather than established in the Bill.

State of environment reporting

The EPBC Act currently requires the Minister to prepare a report on the Australian environment (State of the Environment (SoE) reports) every 5 years.^{^[205]} As discussed in the Background section, the last report was provided to the Minister in December 2021. Clause 14 of the Bill requires the HEIA to prepare biennial SoE reports, with:

subclause 14(2) prescribing (but not limiting) the content of the report
subclause 14(3) requiring that the report draw on and reflect the knowledge and insights of persons with relevant scientific expertise, and the knowledge of Aboriginal and Torres Strait Islander peoples as it relates to ‘the management of land and the conservation and sustainable use of biodiversity’.^{^[206]}

The HEIA would be required to prepare and publish the first SoE Report by 30 September 2026 and, for the purposes of the first report, the national environmental goals are ‘any publicly available environmental targets that the Minister identifies and notifies the HEIA as being national environmental goals’.^{^[207]}

The Minister would be required to prepare and table a response to the SoE Report within 6 months of each report being published.^{^[208]} The response would need to specify the environmental targets (that is, national environmental goals) to be achieved and the timeframe for their achievement.

The new SoE reporting framework therefore increases the frequency of reporting and requires reporting on progress towards national environmental goals specified by the Minister. It also amends the time for tabling of the SoE report and introduces a requirement for the Minister to provide a formal response. These changes respond in part to criticisms of the delayed release of the 2021 SoE Report.^{^[209]} Speaking of the revised arrangements, the Minister said ‘the Government will be held to account on its actions and the progress of the commitments will be transparent’.^{^[210]}

It should be noted that SoE reporting is a significant undertaking: the 2021 SoE Report was initiated in August 2020, 16 months prior to its statutory due date, and ‘represents thousands of hours of work over two years by more than 30 experts’.^{^[211]} The 2021 SoE Report comprises an overview chapter and 12 thematic chapters ranging from biodiversity to heritage to inland water.

The Bill provides the Minister with the discretion to identify the initial national environmental goals – drawn from Australia’s publicly available environmental targets – and can redefine these with each successive biennial report.[212] The Minister may also prescribe, in the rules, matters that must be considered in the SoE Report.

As noted in the above, the Australian government has committed to the Global Biodiversity Framework and a range of aligned initiatives, some of which are articulated in the Threatened Species Action Plan 2022–32. However, there is no explicit reference to the Convention on Biological Diversity or the GBF targets in the objects of the EIA Bill or elsewhere. The achievement of many of these targets will require substantially more than 2 years to achieve as well as significant government and private investment. For example, conservation scientists have estimated that the quantum of funding required to achieve recovery of threatened species or restore degraded terrestrial ecosystems is around $2 billion per annum over several decades.^{^[213]} While the Explanatory Memorandum notes that ‘the rules could require the [SoE] report to include information relating to whether nature positive is being achieved’,[214] consideration could be had to whether national environmental goals, including nature positive, should be clearly articulated in the Environment Information Australia Act (and/or the EPBC Act), and provision made for these to be reviewed in line with the 10-year strategic planning framework under the CBD.

Nature Positive (Environment Law Amendments and Transitional Provisions Bill 2024

Transfer of administrative and compliance and enforcement powers to the CEO

Schedules 3 to 10 of the Transitional Provisions Bill amend 8 environmental laws to provide the CEO of EPA with functions relating to the granting of permits or licences, appointment of authorised officers or inspectors, the exercise of existing regulatory powers under the Regulatory Powers Act, and some other functions and powers. Table 1 (Appendix) summarises these changes for each environmental law and provides a brief summary of the key functions and powers that will remain with the Minister.

These changes would commence on 1 July 2025, provided the EPA Bill commences and with the exception of 2 items amending the Sea Dumping Act (see footnotes 1 and 2).

Legislative instruments made under these environmental laws will need to be amended to reflect the transfer of functions to the CEO.

Transfer of functions under the EPBC Act

Schedule 2 of the Transitional Provisions Bill amends various provisions of the EPBC Act to transfer responsibility for certain functions (including the grant of permits under Chapter 5) and compliance and enforcement powers from the Minister or Secretary to the CEO. These provisions would commence at the same time the EPA Act commences (notionally 1 July 2025).

In brief, these include:

the issue, variation and revocation of evidentiary certificates in relation to a contravention of a civil penalty provision in Part 3 (items 1–8)
notifications in relation to actions, and the issue, transfer, suspension and revocation of permits for actions relating to threatened species and ecological communities, migratory species, and marine species in a Commonwealth area, and cetaceans in or beyond the Australian Whale Sanctuary, under Part 13 (items 10–82)^{^[215]}
appointing inspectors, including through arrangements with other Commonwealth agencies and states and territories, and issuing identity cards (items 90–92)
undertaking compliance and enforcement activities under Parts 17, 18 (items 93–158) and Schedule 1, including:

dealing with and retaining seized things and recovering associated costs
requiring directed environmental audits and compliance audits
issuing, varying and revoking environment protection orders
applying to the Federal Court for injunctions for a contravention of the Act
applying to the Federal Court for a remediation order
making, reconsidering, varying, revoking, and applying to the Federal Court for an order to require compliance with, a remediation determination
applying to the Federal Court for a civil penalty order
accepting enforceable undertakings in regard to contraventions of civil penalty provisions
requiring a person to produce a document or appear before them to answer questions
remedying environmental damage
publicising contraventions of the Act where a person has been convicted or ordered to pay a pecuniary penalty.

The Bill also makes amendments to ensure that the CEO takes account of the precautionary principle when deciding to grant permits in Part 13.^{^[216]}

The Director of National Parks will also be given certain compliance and enforcement powers where the contravention relates to a Commonwealth reserve or conservation zone.[217]

New compliance and enforcement powers

In addition to establishing the EPA and EIA, the second stage of the Government’s reforms seeks to strengthen the existing compliance and enforcement powers available in Part 17 of the EPBC Act. These currently include monitoring powers, search warrants, environmental audits, injunctions, and remediation determinations.

The Samuel Review found that ‘compliance and enforcement under the EPBC Act has been ineffective’ and that the ‘compliance and enforcement powers in the EPBC Act are outdated’.^{^[218]} Professor Samuel recommended that the Act be amended to provide ‘a full suite of modern regulatory powers and tools, and adequate resourcing’, as well as the immediate implementation of a NES for compliance and enforcement.^{^[219]}

In her second reading speech, the Minister said:

The compliance powers available under the EPBC Act have not kept up with modern standards or community expectation. That is why we are introducing critical changes to [the EPBC Act] to deliver stronger enforcement.

The Bill would expand and update audit powers, introduce environment protection orders, increase criminal and civil penalties for serious contraventions and introduce a civil penalty formula.^{^[220]}

Schedule 11 of the Bill amends the EPBC Act to implement such changes. These would commence the day after the Transitional Provisions Act receives Royal Assent, irrespective of whether the EPA Bill and EIA Bill also pass the Parliament and receive Royal Assent.

The application provisions clarify that the new directed environment audits and compliance audits apply to environmental authorities etc that were issued prior to the commencement of the Transitional Provisions Act, and environment protection orders could be issued in relation to conduct that commenced prior to the commencement of the Act.[221] The new criminal penalties and structured civil penalty provisions only apply in circumstances in which the conduct comprising the contravention commenced wholly after the commencement of the Act.^{^[222]}

In addition, while the powers relating to new directed environmental audits, compliance audits and environment protection orders are initially given to the Minister (in accordance with the amendments in Schedule 11), they would be transferred directly to the CEO on the commencement of the EPA Act.^{^[223]}

Environmental audits

The Bill replaces the existing environmental audit provisions with expanded audit powers. These are currently provided in Division 12 of Part 17 and allow the Minister, by written notice, to require the holder of an environmental authority^{^[224]} granted under the Act to carry out an environmental audit if the Minister believes or suspects on reasonable grounds:

the holder has contravened, or is likely to contravene, a condition of the authority; or
the impacts that the action authorised by the authority has, has had, or is likely to have on the relevant MNES are significantly greater than was indicated in the information available to the Minister when the authority was granted.

Division 12 then sets out provisions relating to the appointment of an auditor, the conduct of the audit and the provision of the audit report to the holder of the environmental authority and the Minister.

Part 1 of Schedule 11 repeals and replaces Division 12 of Part 17. Subdivision A of new Division 12 relates to directed environmental audits and extends the existing provisions to a person who is subject to an environmental order and an environmental exemption.^{^[225]} As noted by the Explanatory Memorandum, this would encompass environmental authorities that are deemed approvals under Part 9, such as those granted under strategic assessments.^{^[226]} Subdivision B of new Division 12 relates to compliance audits and provides that the Minister may require a relevant person to facilitate a compliance audit in relation to specified matters for:

activities purportedly covered by an environmental authority
activities purportedly covered by an environmental exemption
activities purportedly carried out for the purposes of complying with an environmental order or that are subject to any requirement of an environmental order
activities purportedly covered by a marine park permission
activities purportedly carried out for the purposes of complying with a marine park order or that are subject to any requirement of a marine park order
activities of a kind prescribed by the regulations.^{^[227]}

The Minister can require 1 or more audits and the audit must be conducted by an authorised officer or a registered auditor (a register of which would also be established). Audits could be conducted without notice, however, the auditor would need to provide the relevant person with a description of the scope of the audit.

The Explanatory Memorandum states that compliance audits ‘would be a flexible tool allowing more effective monitoring of compliance with the EPBC Act and the Great Barrier Reef Marine Park Act 1975 (GBRMP Act)’ and could, among other things, be used to ensure that the ‘impacts of activities being carried out under the relevant permission are not having an impact that is significantly greater than was initially assessed at the time the relevant permission was granted’.^{^[228]}

Environment protection orders

Part 1 of Schedule 11 also inserts a new Division 13A into Part 17 of the EPBC Act, relating to environment protection orders. The Minister would be able to issue an environment protection order in circumstances where the Minister reasonably believes that:

a person has engaged, is engaging, or is likely to engage in conduct that is a contravention of the Act or regulations, or a contravention of the conditions of an environmental authority
the contravention or likely contravention is causing or poses an imminent risk of serious damage to a matter protected by Part 3 (MNES) or the environment as is relevant to the relevant contravention
it is necessary to issue the order to ensure the person’s future compliance with the Act, regulations or environmental authority, to prevent or mitigate the damage caused, or to eliminate or reduce the risk of damage posed by the contravention.^{^[229]}

The Explanatory Memorandum states that the environment protection orders ‘are intended for use in more urgent circumstances where there is an imminent risk of serious harm to the environment or damage that has already occurred. This would align the EPBC Act with comparable tools in State and Territory legislation’.^{^[230]}

The Minister would be able to issue the order in writing or orally (to be confirmed in writing) and the order may impose requirements on the person such as discontinuing or not commencing specified activities, or requiring the person to change the manner in which the person is carrying on, or is to carry on, specified activities. The order would remain in force for the period specified in the notice or until revoked by the Minister.

A person to whom an order has been issued would not have a right to merits review of the order. The Explanatory Memorandum states that ‘this is necessary and appropriate because of the urgency of the circumstances… and the possibility of serious damage to the environment’.^{^[231]} It notes that judicial review would still be available.

Proposed subsection 474E(1) establishes a fault-based offence, with a maximum penalty of 1,000 penalty units (with a body-corporate multiplier such that the maximum penalty could be up to $1.5 million), for doing or failing to do an act or thing that results in a contravention of an environment protection order.^{^[232]} Proposed subsection 474E(2) and section 474F establish strict liability and fault-based offences respectively, with a maximum penalty of 300 penalty units (with a body-corporate multiplier), for contravening an environment protection order, and hindering or obstructing another person from complying with an environment protection order.

Increased criminal and civil penalties

The EPBC Act currently contains a range of provisions contravention of which may attract criminal penalties or a pecuniary penalty. Criminal proceedings may be instituted by the Commonwealth in accordance with the Prosecutions Policy of the Commonwealth; if the person is convicted of an offence, the court will determine an appropriate penalty which may be a term of imprisonment, a fine, or both. The Minister can apply to a Federal Court for a pecuniary penalty order and the court may impose a pecuniary penalty taking into account the matters specified in subsection 481(3).

Part 2 of Schedule 11 of the Bill proposes to increase the maximum monetary penalty amount for certain criminal offence provisions (that is, the fine) and to introduce a new civil penalty formula for certain civil penalty provisions.

In relation to these amendments, the Minister has said:

Our framework would provide flexibility in the range of penalties that can be given for the most egregious offences, safeguards against the consequences of an unlawful action being considered just a cost of doing business, and ensures financial penalties can be commensurate to the value and capacity of a body corporate.^{^[233]}

In relation to criminal penalties, provisions in Division 1 of Part 2 of Schedule 11 increase the maximum monetary penalty in certain criminal offence provisions from either 120 penalty units or 420 penalty units to 1,000 penalty units (with a body-corporate multiplier) for each of the relevant provisions relating to:

taking an action that has, will have or is likely to have a significant impact on protected matters, or the environment, in Part 3, without an appropriate exception or approval
breaching a condition of an approval granted under Part 9.

The Explanatory Memorandum states that the increase in the maximum monetary penalty ‘is considered necessary and appropriate to strongly deter non-compliance with the cornerstone environmental protections provided by Part 3 of the EPBC Act. It would also reflect community expectations in relation to environmental misconduct and the harm such misconduct can cause’.^{^[234]}

In relation to civil penalties, provisions in Division 2 of Part 2 of Schedule 11 establish a new civil penalty formula for civil penalty provisions in Part 3 (requirements for environmental approvals) or subsection 142(1) (breach of condition of an approval). The principal amendments are achieved by proposed subsection 481(2A) and section 481A. The maximum pecuniary penalty that could be imposed by a court would be:

the relevant amount specified for the provision, or
for contraventions of a civil penalty provision in Part 3 or subsection 142(1), the maximum penalty worked out in accordance with section 481A, being:

for individuals, the greater of:

5,000 penalty units; or
if the court can determine either or both of the benefit derived and detriment avoided because of the contravention:
if the court can determine both the benefit derived and detriment avoided – the sum of those amounts multiplied by 3; or
if the court can determine only the benefit derived or only the detriment avoided – that amount multiplied by 3

for body corporates, the greatest of:

50,000 penalty units; or
if the court can determine either or both of the benefit derived and detriment avoided because of the contravention:

if the court can determine both the benefit derived and detriment avoided – the sum of those amounts multiplied by 3; or
if the court can determine only the benefit derived or only the detriment avoided – that amount multiplied by 3; or

the lesser of:

10% of the annual turnover of the body corporate for the 12-month period ending at the end of the month in which the body corporate contravened, or began to contravene, the provision; or
an amount equivalent to 2.5 million penalty units.

This in effect establishes a baseline maximum civil penalty of 5,000 penalty units ($1.5 million) for individuals and 50,000 penalty units for body corporates ($15.6 million), although the maximum penalty could be substantially higher for body corporates, including up to a maximum of $782.5 million if the turnover method is used. The Explanatory Memorandum states the introduction of the civil penalty formula ‘would allow an appropriate financial penalty to be given that reflects the seriousness of the contravention and is of substance to deter and publish environmental misconduct’.^{^[235]}

Changes to ‘stop clock’ provisions

Chapter 4 of the EPBC Act sets requirements for the referral, assessment and approval of actions that have, may have or are likely to have a significant impact on protected matters or the environment generally. The Act sets out statutory timeframes for the making of 3 key decisions:

whether the action is a controlled action, and the relevant controlling provisions (subsection 75(1))
the approach for assessment (ranging from assessment on referral information to a public inquiry) (subsection 87(1))
whether to approve the action, with or without conditions (subsection 133(1)).^{^[236]}

The statutory timeframe for the first two decisions is 20 days from receipt of the referral, and the decisions are generally made on the same day. The statutory timeframe for the third decision varies from 20 to 40 business days counted from the day of receipt of a relevant recommendation report depending on the assessment method, although the Minister may also specify a longer timeframe.^{^[237]}

At each of these stages, provision is made for the Minister to request additional information from the proponent to enable the Minister to make an informed decision.^{^[238]} If a request for additional information is made, ‘the time between the request being made and the time the information is provided to the decision-maker is not counted for the purpose of the time period for making the particular decision’.^{^[239]} These are referred to as ‘stop clock’ provisions and are common in regulatory frameworks.^{^[240]}

Schedule 12 proposes to make amendments to:

require the Minister to provide a written notice stating the reasons for the request for additional information and the effect of provisions relating to working out time periods
allow the proponent, within 5 days of receiving a notice, to notify the Minister that they do not want the ‘stop clock’ provision to apply.

As for Schedule 11, the amendments would commence on the day after the Act receives Royal Assent.

The Explanatory Memorandum describes this as a proponent’s ‘power to refuse’, but explains:

The amendments would not allow a proponent or person proposing to take an action to refuse a request for information. If the proponent did not respond to a request for information in a timely manner the amendments do not affect the Minister’s ability to obtain the information through alternative means.^{^[241]}

The length of time taken for assessments and approval has been frequently raised by business and industry stakeholders as a significant cost to business.^{^[242]} However, the Samuel Review stated that ‘lengthy assessment and approval processes are not all the result of a slow Commonwealth regulator. On average, the process is with the proponent for more than 70% of the total assessment time’.^{^[243]} Approvals can also be delayed by state and territory assessment and approval processes. The department’s administration of the EPBC Act referral, assessments and approval process has repeatedly been found to be ineffective and inefficient, with additional funding provided in 2019–20 ‘to reduce unnecessary delays’ and followed by further investment under the Albanese Government (see Financial Implications).^{^[244]}

The Minister described the amendments as giving ‘proponents a greater say over statutory timeframes’ and increasing transparency.^{^[245]} However, the Minister has a statutory obligation to make an informed decision about the impacts of a project on protected matters, and whether unavoidable impacts are appropriately mitigated, based on the information before them, applying the precautionary principle, and there are no legal consequences for failing to make a decision within a required statutory timeframe.^{^[246]} Therefore, allowing the proponent a ‘power to refuse’ is unlikely in itself to result in quicker decisions. Assessment and approval timeframes may however be reduced by the reforms aimed at increasing the availability of quality information, or components of the stage 3 reforms, such as regional planning and accreditations (which will facilitate approval of actions by the states and territories). Rather, there is a risk that the department will see an increase in the volume of freedom of information requests for correspondence between the Minister and proponents, and requests for statements of reasons for decisions.^{^[247]}

Concluding comments

This suite of 3 Nature Positive Bills implements stage 2 of the government’s nature positive reforms. Like the Coalition Government before it, the Albanese Government has not fully adopted the recommendations of the Samuel Review nor chosen to implement the reforms in the order of priority proposed by Professor Samuel to improve the standard of, and outcomes achieved by, decision making under Australia’s national environmental law.

The EPA Bill establishes Environment Protection Australia which will be led by a Chief Executive Officer who is given functions under 9 environmental laws. These functions are given either directly through amendments to relevant provisions or, in the case of key decisions relating to the approval of actions in Chapter 4 of the EPBC Act, indirectly through a power of delegation. In the absence of further reform, it is unclear what degree of independence the CEO may have in respect of the delegated powers, given that the Minister or Secretary may decide to make any of those decisions themselves. The Transitional Provisions Bill provides the Minister – and should the EPA Bill pass, the CEO – with enhanced compliance and enforcement powers. However, as some experts have noted, and is evident from the outcomes of the government’s recent Environmental Offsets Audit, there also needs to be a fundamental shift in the compliance and enforcement culture of Australia’s federal environmental regulators to more closely reflect community expectations.[248]

The EIA Bill formally establishes the role of Head of Environment Information Australia to improve the availability and quality of data and information on Australia’s natural environment. The government has adopted the premise of nature positive, but the drafting of the Bill allows the HEIA to choose a baseline for nature positive and the Minister to define (and change) the national environmental goals (including nature positive) that will be monitored, evaluated and reported on over time.

Significant aspects of the Nature Positive Plan which offer the greatest opportunity to address business and industry concerns and improve environmental outcomes under the EPBC Act – including the establishment of National Environmental Standards, reform of the referral and assessment process for controlled actions under the EPBC Act, revision and consolidation of accreditation arrangements under the EPBC Act, and regional planning initiatives – will likely be implemented in stage 3 of the government’s reforms. However, the timing of these reforms is unclear – and increasingly critical in light of the next federal election due in or before May 2025.[249] Also of critical importance is the need to provide the long-term investment required to halt the decline in, and restore, Australia’s unique ecosystems – the very ecosystems that provide the services upon which the economy and wellbeing of Australia’s people depend.[250]

Acknowledgements: the author thanks Dr Martin Smith for his assistance in preparing columns 3 and 4 of Table1. The author also thanks DCCEEW for the opportunity to attend stakeholder consultation workshops between October 2023 and March 2024.

Appendix

Table 1 Overview of environmental laws for which the CEO will assume responsibilities

Act	Overview of Act	Functions and powers staying with Minister	Functions and powers transferring to CEO
Environment Protection (Sea Dumping) Act 1981[251] Delegated instruments: Environment Protection (Sea Dumping) Regulations 1983	The Act regulates the loading and dumping of waste at sea and the creation of artificial reefs in Australian waters. The Act: prohibits the dumping or incineration of controlled material into Australian waters or any part of the sea from an Australian vessel or Australian aircraft provides for the grant of permits allowing permitted substances, and artificial reefs, to be disposed of in Australian waters. The Act implements Australia’s obligations under the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters (London Protocol).	Jurisdictional and treaty matters Declarations limiting the operation of the Act Delegation of all or any of powers, other than delegation Note: some powers are shared between the Minister and CEO (for example, restoration of the environment).	Permitting functions (assessment, grant, conditions, suspension, variation, revocation) Compliance (appointing inspectors, issuing evidentiary certificates)
Hazardous Waste (Regulation of Exports and Imports) Act 1989 Related Acts: Hazardous Waste (Regulation of Exports and Imports) Levy Act 2017 Key delegated instruments: Hazardous Waste (Regulation of Exports and Imports) (Fees) Regulations 1990 Hazardous Waste (Regulation of Exports and Imports) Regulations 1996	The Act establishes a regulatory framework for the export, import and transit of hazardous waste, to ensure that human being and the environment are protected from the harmful effects of the waste. The Act implements Australia’s obligations under the: Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal Convention to Ban the Importation into Forum Island Counties of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region.	Declaring agreements satisfying the Basel Convention Publishing declarations relating to Article 11 arrangements in the Gazette Arrangements directed towards management of hazardous waste Issuing evidentiary certificates Delegation of any and all functions and powers to Secretary and departmental officers Disclosure of information functions Annual reporting	Declaring certain substances or waste as hazardous waste, or notifiable substance, for the purposes of exports and transits to foreign countries Permitting functions (assessment, grant (or refuse), conditions, variation, suspension, revocation) Issuing orders requiring hazardous waste to dealt with in a particular manner, and to remedy and mitigate damage Compliance and enforcement functions and powers Publishing information relating to applications, permits and determinations on the EPA’s website
Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 Delegated instruments: Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995	The Act establishes a regulatory framework to control the manufacture, import, export, use and disposal of substances that delete ozone in the stratosphere and contribute to climate change. It applies to specific ozone depleting substances and synthetic greenhouse gases. The Act implements Australia’s obligations under the: Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer United Nations Framework Convention on Climate Change and the Kyoto Protocol (as amended by the Doha Amendment).	Terminate licences to ensure treaty obligations are met Determine HCFC and HFC quota periods and publish notifications Delegation of all or any powers or functions to Secretary or departmental officers (other than s 19A) Annual reporting Disclosure of information functions	Licensing functions (assessment, grant (or refuse), renewal, transfer variation, suspension and cancellation) relating to scheduled substances and products Allocate quotas for HCFC and HFC import and manufacture Compliance and enforcement powers, including appointing inspectors Dealing with and disposing of forfeited products Recover levies
Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995 Delegated instruments: Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Regulations 2023	The Act allows for the Minister to set levies on the import of specified scheduled ozone depleting substances and synthetic greenhouse gases by holders of certain licences.	Matters relevant to the making of regulations	Determine exemptions from the import levy
Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Act 1995 Delegated instruments: Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Regulations 2023	The Act allows for the Minister to set levies on the domestic manufacture of synthetic greenhouse gases, hydrochlorofluorocarbons (HCFCs) and methyl bromide by holders of controlled substances licences.	Matters relevant to the making of regulations	Determine exemptions from the levy
Product Emissions Standards Act 2017 Related Acts: Product Emissions Standards (Customs) Charges Act 2017 Product Emissions Standards (Excise) Changes Act 2017 Delegated instruments: Product Emissions Standards Rules 2017	The Act establishes a regulatory framework to address the adverse impacts of air pollution on human and environmental health. It does this by requiring prescribed ‘emissions-controlled products’ to meet Australian standards or a recognised foreign emissions standard.	Disclose information to the CEO and other entities relevant to the performance of functions or duties, or exercise of powers Delegation of all or any powers and functions to Secretary or departmental officers (other than s 51) Cause a review of the Act Make rules, as legislative instruments	Certifying and exempting emissions-controlled products Compliance and enforcement functions and powers, including appointing inspectors Publishing information relating to certified products and exemptions
Recycling and Waste Reduction Act 2020 Related Acts: Recycling and Waste Reduction Charges (Customs) Act 2020 Recycling and Waste Reduction Charges (Excise) Act 2020 Recycling and Waste Reduction Charges (General) Act 2020 Delegated instruments: Recycling and Waste Reduction (Product Stewardship-Accreditation of Voluntary Arrangements) Rules 2020 Recycling and Waste Reduction (Fees) Rules 2020	The Act establishes a regulatory framework to more effectively manage the environmental and human health and safety impacts of products and waste material. It regulates the export of waste glass, plastic, types and paper, and provides for the establishment of voluntary, co-regulatory and mandatory product stewardship arrangements. There are: 1 mandatory product stewardship scheme (mercury-added products) 2 co-regulatory product stewardship schemes (televisions and computers, plastics and packaging) 7 accredited voluntary schemes 4 waste export regulations (waste glass, waste paper and cardboard, waste plastic, and waste tyres).	Grant, vary and revoke waste export exemptions, including publishing information on department’s website about exemptions and preparing quarterly reports on exemptions Publish an annual priority list of products that may be subject to regulation Administering accredited voluntary arrangements, including publishing information about accredited voluntary arrangements and tabling information about operation of accredited voluntary arrangements Enter into arrangements with States and Territories to help give effect to the Act Annual report on operation of the Act Review of the operation of the Act (due in 2026) Delegate all or any of functions and powers to Secretary or departmental officials Make rules, as legislative instruments	Licensing functions (assessment, grant (or refuse), renewal, conditioning, variation, suspension, revocation) Publish information about waste export licences, quarterly reports about export licences, information about co-regulatory arrangements Monitoring, compliance and enforcement of waste export requirements of the Act Approve, review and cancel co-regulatory arrangements Compliance and enforcement under co-regulatory arrangements Compliance and enforcement for regulated waste material and product stewardship arrangements
Underwater Cultural Heritage Act 2018 Delegated instruments: Underwater Cultural Heritage Rules 2018	The Act provides for the protection of underwater cultural heritage sites in situ and individual artefacts associated with these sites. The regulatory framework established by the Act is aligned with the requirements of the Convention on the Protection of the Underwater Cultural Heritage, however, Australia is yet to ratify the Convention.[252]	Assessment, permitting and administration Provide evidentiary certificate Disclosing information to the CEO or other prescribed party in certain circumstances Delegate any of powers to Secretary, departmental officials or ‘any other person that the Minister considers has appropriate qualifications or expertise’ (other than making rules) Make rules, as legislative instrument	Compliance and enforcement, including appointing inspectors, and making decisions on dealing with forfeited vessels, equipment, or articles

Source: Parliamentary Library compilation using a range of sources, including DCCEEW, Consultation on National Environmental Laws 26–28 March 2024, (Canberra: DCCEEW, 2024), 14–19 [of pdf]; Explanatory Memorandum, Nature Positive (Environmental Law Amendments and Transitional Provisions) Bill 2024; Nature Positive (Environmental Law Amendments and Transitional Provisions) Bill 2024.

Table 2 Governance model of other Commonwealth environment-related regulators

Regulator	Governance model	Functions and powers	Ministerial oversight
National Offshore Petroleum, Safety and Environmental Management Authority (NOPSEMA) Responsible to the Commonwealth Minister for Resources	Established under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (OPGGS Act) as a body corporate (Part 6.9, s 645, 652) Led by a Chief Executive Officer (CEO), who is appointed by the responsible Commonwealth Minister (s 665), and must request Board’s advice on strategic matters (s 667) Overseen by a NOPSEMA Board, which comprises a Chair and 5–7 members who are appointed by the responsible Commonwealth Minister (s 653, 656)	Regulates health and safety, structural (well) integrity and environmental management for offshore petroleum and greenhouse gas storage activities in Commonwealth waters, and in coastal waters where regulatory powers and functions have been conferred (s 646, 646A, 648, 650) Provides advice, reports and recommendations to the responsible Commonwealth Minister and responsible state and territory ministers (s 646) In accordance with a strategic assessment under Part 10 of the EPBC Act, accepts offshore project proposals and environment plans for a specified class of actions	Can give written policy principles to NOPSEMA, which must be tabled in Parliament, and with which NOPSEMA must comply (s 647) Can direct CEO in preparation of a corporate plan (s 679) Can require NOPSEMA to prepare reports or give information (s 691) Can give written directions about performance of functions and exercise of powers, but not in relation to regulated operations at a particular facility (but can direct an investigation) (s 692) 5-yearly reviews to be tabled in Parliament (s 695) Has issued CEO a statement of expectations and received a corresponding statement of intent
Offshore Infrastructure Regulator (OIR) Responsible to the Commonwealth Minister for Energy	Established under the Offshore Electricity Infrastructure Act 2021 (Chapter 5, Part 2, s 175) but is NOPSEMA Led by a CEO, who is the CEO of NOPSEMA (s 176)	Regulates work health and safety, infrastructure integrity, and environmental management for offshore electricity infrastructure activities in Commonwealth waters (s 177) May provide services under contract to states or territories, or foreign governments (s 183)	Can require Regulator to prepare reports or provide information (s 181) Can give Regulator written directions about performance of functions, but these can be of a general nature only (s 182) Corporate plan and annual report to deal separately with OIR matters (OPGGS Act, s 677A, 690)
Murray-Darling Basin Authority (MDBA) Responsible to the Commonwealth Minister for Water	Established as a body corporate under the Water Act 2007 (Part 9, s 171) MDBA consists of a Chief Executive, Chair and 6 members (2 of which are Indigenous persons) (s 177) Members are appointed by the Governor-General and must have relevant expertise (s 178)	Plan for, measure and monitor sustainable use of Basin’s water resources and conditions of water-dependent ecosystems, make recommendations to Commonwealth and Basin States, advise Water Minister on accreditation of state water resource plans, operate River Murray system, provide water rights to facilitate water trading (s 172) Special powers provided in Part 10	Can give directions, consistent with the objects of the Act and specified limitations, about performance of MDBA’s functions, and the MDBA must comply with those directions (s 175) Corporate plan must be approved by the Murray-Darling Basin Ministerial Council (s 213A)
Inspector-General of Water Compliance (IG WC)	Established as a statutory appointment under the Water Act (s 215B) Appointed by the Governor-General and must have relevant expertise (s 215J)	Compliance and enforcement (Parts 10AA, 10AB) Can issue guidelines and standards (s 215V, 215VA) Can appoint advisory panels (s 215T)	Can give directions, consistent with the objects of the Act about performance of the Inspector’s functions, subject to limitations (s 215D)

References

[1].   Item 3 of Schedule 1 of the Sea Dumping Amendment Act inserts subsection 19(7B) which will allow the Minister to grant a permit allowing for the export of carbon dioxide streams for sequestration in a sub-seabed geological formation. That item does not commence until Australia has deposited a declaration on provisional application of the 2009 amendment to Article 6 of the 1996 Protocol to the Convention on Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 (London Protocol).

[2].   Item 35 of Schedule 1 of the Sea Dumping Amendment Act insets subsection 19(7C) which will allow the Minister to grant a permit for the placement of wastes into Australian waters for a marine geoengineering activity. That item does not commence until amendments to the London Protocol relating to marine geoengineering enter into force for Australia. Based on the requirements of the London Protocol, it is unclear when that item will commence (if at all).

[3].   Department of Climate Change, Energy, the Environment and Water (DCCEEW), Nature Positive Plan: Better for the Environment, Better for Business, (Canberra: DCCEEW, December 2022).

[4].   Brendan Wintle, Jack Pascoe, Peter Burnett, James Trezise and Sarah Brugler, ‘Australia’s Proposed “Nature Positive” Laws: 10 Essential Elements for Conserving and Recovering Our Unique Environments and Biodiversity’, Australian Environment Review 38, no. 4 (April 2024): 62–66, at 62. Endemism refers to species found in a single defined geographic location.

[5].   Helen Murphy and Stephen van Leeuwen, Australia State of the Environment 2021: Biodiversity, independent report to the Australian Government Minister for the Environment, (Canberra: Commonwealth of Australia, 2021), 16.

[6].   Ian Cresswell, Terri Janke and Emma Johnston, Australia State of the Environment 2021: Overview, independent report to the Australian Government Minister for the Environment, (Canberra: Commonwealth of Australia, 2021), 10. A delay in the publication of academic research means that a substantial volume of research conducted in the years immediately prior to 2021 may not have been formally published and may therefore have not been available for inclusion in the SoE Report.

[7].   John Woinarski, Stephen Garnett, Sarah Legge and David Lindenmayer, ‘The Contribution of Policy, Law, Management, Research, and Advocacy Failings to the Recent Extinctions of Three Australian Vertebrate Species’, Conservation Biology 31, no. 1 (5 October 2016): 13–23 at 13.

[8].   Woinarski et al, ‘The Contribution of Policy, Law, Management, Research, and Advocacy Failings to the Recent Extinctions’; Graham Fulton, ‘The Bramble Cay Melomys: the First Mammalian Extinction Due to Human-Induced Climate Change’, Pacific Conservation Biology 23, no. 1 (20 February 2017): 1–3.

[9].   Dana Bergstrom, et al, ‘Combating Ecosystem Collapse from the Tropics to the Antarctic’, Global Change Biology 27, no. 9 (25 February 2021): 1692–1703.

[10]. EPBC Act, section 3 and Part 13.

[11]. Parliamentary Library analysis of ‘Listings since commencement of EPBC Act’ (data extracted 22 May 2024), available at ‘Species Profile and Threats Database’, DCCEEW. Australian Conservation Foundation (ACF), Extinction Wrapped 2023, (Carlton, Victoria: ACF, 2024), 5.

[12]. Michelle Ward, et al, ‘Lots of Loss with Little Scrutiny: The Attrition of Habitat Critical for Threatened Species in Australia’, Conservation Science and Practice 1, no. 9 (2019): 11.

[13]. Murphy and van Leeuwen, Australia State of the Environment 2021: Biodiversity, 92.

[14]. Michelle Ward, et al, ‘A National-Scale Dataset for Threats Impacting Australia’s Imperiled Flora and Fauna’, Ecology and Evolution 11, no. 7 (25 June 2021): 11749–11761.

[15]. Wintle, et al, ‘Australia’s Proposed “Nature Positive” Laws’: 63.

[16]. Janna Dielenberg et al, ‘Australia’s Biodiversity Crisis and the Need for a Biodiversity Council’, Ecological Management and Restoration 24, no. 2–3 (2023): 69–74 at 71.

[17]. Dielenberg et al, ‘Australia’s Biodiversity Crisis’: 71.

[18]. EPBC Act, section 522A.

[19]. Allan Hawke, The Australian Environment Act, report of the independent review of the Environment Protection and Biodiversity Conservation Act 1999, (Canberra: Commonwealth of Australia, October 2009).

[20]. Peter Burnett, ‘Reviewing Our National Environmental Law as if it Mattered’, Australian Science 40, no. 4 (2019): 46.

[21]. Graeme Samuel, Independent Review of the EPBC Act 1999: Final Report, (Canberra: Department of Agriculture, Water and the Environment, October 2020), ii.

[22]. Samuel, Independent Review of the EPBC Act 1999: Final Report, ii.

[23]. Graeme Samuel, Evidence to Senate Environment and Communications References Committee, Inquiry into Australia’s Extinction Crisis, 17 April 2024.

[24]. Samuel, Independent Review of the EPBC Act 1999: Final Report, ii; see also, Chapter 4.

[25]. Samuel, Independent Review of the EPBC Act 1999: Final Report, 10.

[26]. Samuel, Independent Review of the EPBC Act 1999: Final Report, 2–5, 12–13, recommendations 2 and 3; 14, 118–120, recommendation 23.

[27]. Samuel, Independent Review of the EPBC Act 1999: Final Report, 21.

[28]. Samuel, Independent Review of the EPBC Act 1999: Final Report, 21.

[29]. Samuel, Independent Review of the EPBC Act 1999: Final Report, 147, recommendations 29 and 30.

[30]. Samuel, Independent Review of the EPBC Act 1999: Final Report, 148–150.

[31]. Tanya Plibersek (Minister for the Environment and Water), ‘Government Launches Environmental Offsets Crackdown’, media release, 29 June 2023.

[32]. DCCEEW, Environmental Offsets Audit, (Canberra: DCCEEW, May 2024), 4; see also: Ben Cubby, ‘Developers breaching environmental offsets’, Sydney Morning Herald, 20 May 2024.

[33]. Samuel, Independent Review of the EPBC Act 1999: Final Report, 22, Chapter 10.

[34]. Samuel, Independent Review of the EPBC Act 1999: Final Report, 22.

[35]. Samuel, Independent Review of the EPBC Act 1999: Final Report, 156.

[36]. Samuel, Independent Review of the EPBC Act 1999: Final Report, 156.

[37]. Samuel, Independent Review of the EPBC Act 1999: Final Report, 174 (recommendations 31 and 32).

[38]. Samuel, Independent Review of the EPBC Act 1999: Final Report, 175.

[39]. Samuel, Independent Review of the EPBC Act 1999: Final Report, 175, 181 (recommendations 33 and 34).

[40]. Samuel, Independent Review of the EPBC Act 1999: Final Report, 175, 187, 190 (recommendations 35, 36 and 37).

[41]. Bob Hawke (Prime Minister), Speech at the Opening of Atmospheric Research Building, CSIRO Division of Atmospheric Research, Aspendale Victoria, 19 March 1990, 7.

[42]. Department of the Arts, Sport, the Environment, Tourism and Territories, Annual Report 1989–90, (Canberra: Australian Government Publishing Service, 1990), 216; Ros Kelly (Minister for the Arts, Sport, the Environment, Tourism and Territories), ‘Kelly Announces the Establishment of the Commonwealth EPA’, media release, 20 August 1991; Hugh Lamberton, ‘Steps Taken to Creation of Ecology Agency’, Canberra Times, 22 May 1990.

[43]. Australian Government, Budget Statements 1991–92, Budget Paper no. 1: 1991–92, (Canberra: Australian Government Publishing Service, August 1991), 3–136.

[44]. Ros Kelly, ‘Kelly Announces the Establishment of the Commonwealth EPA’.

[45]. Department of the Arts, Sport, the Environment and Territories, Annual Report 1991–92, (Canberra: Australian Government Publishing Service, 1992), 7.

[46]. Justice Nicola Pain, ‘Reflections on a National EPA’, presentation to the Environmental Law in Review conference, University of Sydney Law school, 14 February 2023, 2.

[47]. Ian McPhail, ‘The Role of CEPA and NEPA: Towards a National Approach to Environmental Protection in Australia’, Australian Environmental Law News, no. 2 (June 1992): 66–68 at 67; Marco Bini, ‘National Environment Protection Council Bill 1994’, Bills Digest, 102, 1994, (Canberra: Department of the Parliamentary Library, 1994), 4.

[48]. Robert Hill (Minister for the Environment), Investing in Our Natural Heritage, (Canberra: Australian Government Publishing Service, 20 August 1996), 22.

[49]. Department of Sport and Territories, ‘Anthea Tinney appointed as Head of Environment Australia’s Environment Protection Group’, media release, 29 January 1997.

[50]. Intergovernmental Agreement on the Environment, 1 May 1992. The responsibilities and roles of the Commonwealth and states are set out in clauses 2.2 and 2.3, while Schedule 4 concerns National Environment Protection Measures and the National Environment Protection Authority.

[51]. Intergovernmental Agreement on the Environment, (February 1992), Schedule 4, clause 2.

[52]. National Environment Protection Council, Annual Report 2018–19, (Canberra: Commonwealth of Australia, 2021), 2–3.

[53]. Tanya Plibersek (Minister for the Environment and Water), ‘Labor’s Nature Positive Plan: Better for the Environment, Better for Business’, media release, 8 December 2022; DCCEEW, Nature Positive Plan.

[54]. Tanya Plibersek, ‘Labor’s Nature Positive Plan: Better for the Environment, Better for Business’.

[55]. Bill Shorten, Tony Burke and Mark Butler, ‘Labor’s $1 Billion Plan to Protect Our Environment’, media release, 4 May 2019; Lisa Cox, ‘Labor to set up independent environmental protection agency and restore “trust and confidence”’, Guardian, 20 May 2022.

[56]. DCCEEW, Nature Positive Plan, 28–29.

[57]. DCCEEW, Nature Positive Plan, 29.

[58]. DCCEEW, Nature Positive Plan, 4.

[59]. DCCEEW, Nature Positive Plan, 5, 30.

[60]. DCCEEW, Nature Positive Plan, 4.

[61]. DCCEEW, Nature Positive Plan, 30.

[62]. DCCEEW, Nature Positive Plan, 4, 45.

[63]. DCCEEW, Nature Positive Plan, 5, 32.

[64]. Martine Maron et al, ‘“Nature Positive” Must Incorporate, Not Undermine, the Mitigation Hierarchy’, Nature Ecology and Evolution, 8 (2024): 14–17.

[65]. Harvey Locke et al, A Nature-Positive World: The Global Goal for Nature, (April 2021), 2; Post 2020 Pavilion Partnership, Call to Action for an Equitable, Carbon-Neutral, Nature-Positive World, Submission to the UN General Assembly Summit on Biodiversity, September 2020.

[66]. Harvey Locke et al, A Nature-Positive World: The Global Goal for Nature, 2–3.

[67]. Nature Positive Initiative, The Definition of Nature Positive, (Nature Positive Initiative, 27 November 2023), 1.

[68]. Nature Positive Initiative, The Definition of Nature Positive, 1.

[69]. E.J. Milne-Gulland, ‘Don’t Dilute the Term Nature Positive’, Nature Ecology & Evolution, 6 (2022): 1243–1244; Sophus zu Ermgassen, et al, ‘Are corporate biodiversity commitments consistent with delivering “nature-positive” definitions, company progress and challenges’, Journal of Cleaner Production, 379 (2022): 134798 at 2; Martine Maron et al, ‘“Nature Positive” Must Incorporate, Not Undermine, the Mitigation Hierarchy’.

[70]. Megan C Evans, Submission to the Senate Environment and Communications References Committee, Inquiry into Australia’s Extinction Crisis, 9 April 2024, 4; Martine Maron et al, ‘“Nature Positive” Must Incorporate, Not Undermine, the Mitigation Hierarchy’.

[71]. Environment Justice Australia (EJA), Submission to the Senate Environment and Communications References Committee, Inquiry into Australia’s Extinction Crisis, 5; Places You Love Alliance (PYLA), Submission to the Senate Environment and Communications References Committee, Inquiry into Australia’s Extinction Crisis (Attachment 1), 14 November 2023, 16–17; Wentworth Group of Concerned Scientists (WGCS), Submission to the Senate Environment and Communications References Committee, Inquiry into Australia’s Extinction Crisis, 4–5.

[72]. E.J. Milne-Gulland, ‘Don’t Dilute the Term Nature Positive’.

[73]. Tanya Plibersek, ‘Environment and Business to Benefit from Nature Positive Plan’, media release, 16 April 2024.

[74]. Tanya Plibersek, ‘Opinion: Enviro law hotchpotch has been bad for nature and industry’, West Australian, 17 April 2024.

[75]. DCCEEW, Consultation for Stage 3 – Nature Positive Law Reform, 28 May 2024.

[76]. Dean Knudson (Deputy Secretary, DCCEEW), Evidence to Senate Environment and Communications References Committee, Inquiry into Australia’s Extinction Crisis, 17 April 2024, 56.

[77]. Dean Knudson, Evidence to Senate Environment and Communications References Committee, 67.

[78]. Tanya Plibersek, Second Reading Speech: Nature Positive (Environment Protection Australia) Bill 2024, House of Representatives, Debates, (proof), 29 May 2024, 14.

[79]. Convention on Biological Diversity (CBD), ATS [1993] 32 (entered into force for Australia 29 December 1993). The other conventions and treaties include: Convention for the Protection of the World Cultural and Natural Heritage (World Heritage Convention), ATS [1975] 47 (entered into force for Australia 17 December 1975); Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention), ATS [1975] 48 (entered into force for Australia 21 December 1975); Convention on the Conservation of Migratory Species of Wild Animals, ATS [1991] 32 (entered into force for Australia 1 September 1991); Agreement between the Government of Australia and the Government of Japan for the Protection of Migratory Birds in Danger of Extinction and their Environment (JAMBA), ATS [1981] 6 (entered into force 30 April 1981); Agreement between the Government of Australia and the Government of the People’s Republic of China for the Protection of Migratory Birds and their Environment (CAMBA), ATS [1988] 22 (entered into force 1 September 1988; Agreement Between the Government of Australia and the Government of the Republic of Korea on the Protection of Migratory Birds (ROKAMBA), ATS [2007] 24 (entered into force 13 July 2007).

[80]. Secretariat of the Convention on Biological Diversity, Global Biodiversity Outlook 5: Summary for Policy Makers, (Montreal: Convention on Biological Diversity, 2020), 1.

[81]. Scott Morrison (Prime Minister) and Sussan Ley (Minister for the Environment), ‘Australia joins international alliance to conserve planet’s biodiversity’, media release, 14 June 2021; Tanya Plibersek (Minister for the Environment and Water), ‘Australia endorses international Ocean Conservation Pledge’, media release, 17 November 2022; DCCEEW, Threatened Species Action Plan: Towards Zero Extinctions 2022–32, (Canberra: DCCEEW, 2022), objective 4. Forty-five per cent of Australia’s marine area is already included in protected areas, however, only roughly 3.5% is fully protected: ‘Collaborative Australian Protected Areas Database (CAPAD) 2022’, DCCEEW, Parliamentary Library calculation using data from the ‘Marine CAPAD 2022 National summary’ spreadsheet ‘IUCN Category tab’.

[82]. Chris Bowen (Minister for Climate Change and Energy), Tanya Plibersek (Minister for the Environment and Water) and Murray Watt (Minister for Agriculture, Fisheries and Forestry), ‘Australia joins forests partnership to drive climate-action’, media release, 8 November 2022; Chris Bowen (Minister for Climate Change and Energy) and Tanya Plibersek (Minister for the Environment and Water), ‘Australia joins international Mangrove Alliance for climate’, media release, 11 November 2022.

[83]. Tanya Plibersek (Minister for the Environment and Water), ‘Threatened Species Action Plan: Towards Zero Extinctions’, media release, 4 October 2022; DCCEEW, Threatened Species Action Plan: Towards Zero Extinctions 2022–32, objective 3.

[84]. Tanya Plibersek (Minister for the Environment and Water), ‘Australia joins global efforts to end plastic pollution’, media release, 16 November 2022.

[85]. DCCEEW, Nature Positive Plan, 14 and 29. See also: Declaration of the United Nations Conference on the Human Environment, principle 20 (p. 5), in Report of the United Nations Conference on the Human Environment, Stockholm, 5–16 June 1972, A/CONF.48/14 and Corr.1; Rio Declaration on Environment and Development, principle 10, in Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, A/CONF.151.26 (Vol 1).

[86]. Anthony Albanese (Prime Minister), ‘Australia to Join Leaders Pledge for Nature: speech, New York’, 21 September 2022; DCCEEW, Nature Positive Plan, 10.

[87]. Tanya Plibersek, Ministerial Statement: Australia’s International Environment Leadership, House of Representatives, Debates, 15 November 2023, 8175–8178; Tanya Plibersek (Minister for the Environment and Water) and Penny Sharpe (NSE Minister for the Environment, Energy, Climate Change and Energy), ‘Sydney to Host World’s First Global Nature Positive Summit’, media release, 27 August 2023.

[88]. Tanya Plibersek (Minister for the Environment and Water), ‘Delivering Our Strong New Nature Positive Laws’, media release, 12 October 2023. A list of stakeholders (as at 23 October 2023) invited to attend the consultations was tabled during 2023–24 Supplementary Budget Estimates for the Senate Environment and Communications Committee.

[89]. Senate Environment and Communications Legislation Committee, Estimates, Official Committee Hansard, 23 October 2023, 87.

[90]. Senate Environment and Communications Legislation Committee, Official Committee Hansard, 88.

[91]. Ronald Mizen and Jacob Greber, ‘Brawl looms on environmental law overhaul’, Australian Financial Review, 31 October 2023; Jonathan Duniam, ‘100 Days Since Plibersek’s Promised Environmental Laws Overhaul and No Finish Date in Sight’, media release, 10 April 2024; Rosie Lewis, ‘Enviro Activists Told to “Take a Chill Pill”’, The Australian, 18 April 2024; Senate Environment and Communications References Committee inquiry into Australia’s Extinction Crisis, Official Committee Hansard, (proof), 17 April 2024, 3, 20, 27–28.

[92]. Adam Morton and Lisa Cox, ‘Delayed Environmental Laws Spark Calls for Urgent Government Action on Water and Fracking’, Guardian, 17 October 2023.

[93]. Tanya Plibersek (Minister for the Environment and Water), ‘Environment and Business to Benefit from Nature Positive Plan’, media release, 16 April 2024, 4.

[94]. Senate Environment and Communications References Committee, Australia’s Extinction Crisis: Interim Report, (Canberra: The Senate, May 2024), ix.

[95]. See for example, Senator Bob Brown’s Convention on Climate Change (Implementation) Bill 1999; Senator Sarah Hanson Young’s Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2020, followed by the Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2022 [No. 2]; Senator Sarah Hanson-Young’s Environment Protection and Biodiversity Conservation Amendment (Save the Koala) Bill 2021.

[96]. Sarah Hanson-Young, ‘Govt’s enviro law reforms lack urgency and climate action’, media release, 8 December 2022.

[97]. Sarah Hanson-Young, ‘Labor Breaks Promise to Deliver Real Environmental Protection’, media release, 16 April 2024.

[98]. Hanson-Young, ‘Labor Breaks Promise to Deliver Real Environmental Protection’.

[99]. David Pocock, ‘Nature Positive Plan Needs Genuine Investment to Succeed’, media release, 8 December 2022, 1.

[100]. Pocock, ‘Nature Positive Plan Needs Genuine Investment to Succeed’, 2.

[101]. David Pocock, ‘Nature Paying the Price of Piecemeal Environmental Reform’, media release, 16 April 2024, 1.

[102]. Pocock, ‘Nature Paying the Price of Piecemeal Environmental Reform’, 2.

[103]. Kate Chaney et al, ‘Crossbench request EPBC Reforms to be Completed this Parliamentary Term’, media release, 16 April 2024, 1.

[104]. Kate Chaney et al, ‘Crossbench request’, 1–2.

[105]. Peter Dutton, ‘Address to the Minerals Week Launch, Canberra‘, 6 September 2023, 4.

[106]. Peter Dutton, ‘Address to the Australian Energy Producers Conference and Exhibition, Perth’, 23 May 2024.

[107]. Dutton, ‘Address to the Australian Energy Producers Conference and Exhibition, Perth’.

[108]. Jonathan Duniam, ‘Opinion: Overly Onerous Environmental Law Reforms Will Force Industry to Send Operations Offshore’, The Nightly, 15 March 2024.

[109]. Duniam, ‘Opinion: Overly Onerous Environmental Law Reforms’.

[110]. Jonathan Duniam, ‘100 Days Since Plibersek’s Promised Environmental Laws Overhaul and No Finish Date in Sight’.

[111]. Biodiversity Council, ‘The Federal Government has Announced that it Will Split Reforms to the Environment Protection and Biodiversity Conservation Act’, media release, 16 April 2024; Euan Ritchie, Megan Evans and Yung En Chee, ‘Australia’s Long-Sought Stronger Environmental Laws Just Got Indefinitely Deferred. It’s Back to Business as Usual’, The Conversation, 17 April 2024.

[112]. Biodiversity Council, ‘The Federal Government has Announced that it Will Split Reforms’.

[113]. Biodiversity Council, Delivering on Nature Positive: 10 Essential Elements of National Environmental Law Reform, (Melbourne: Biodiversity Council, 2023); Brendan Wintle, Jack Pascoe, Peter Burnett, James Trezise and Sarah Brugler, ‘Australia’s Proposed “Nature Positive” Laws: 10 Essential Elements for Conserving and Recovering Our Unique Environments and Biodiversity’, Australian Environment Review 38, no. 4 (April 2024): 62–66.

[114]. Peter Burnett, ‘It’s Time to Strike an Environmental Grand Bargain Between Businesses, Government and Conservationists – and Stop Doing Things the Hard Way’, The Conversation, 30 April 2024.

[115]. EJA, Submission to the Senate Environment and Communications References Committee, Inquiry into Australia’s Extinction Crisis, 9 April 2024, 4; Places You Love Alliance (PYLA), Submission to the Senate Environment and Communications References Committee, Inquiry into Australia’s Extinction Crisis (Attachment 1), 14 November 2023, 11–12; PYLA, Submission to the Senate Environment and Communications References Committee, Inquiry into Australia’s Extinction Crisis (Attachment 2), 1 February 2024, 5.

[116]. EJA, Submission to the Inquiry into Australia’s Extinction Crisis, 4.

[117]. EJA, Submission to the Inquiry into Australia’s Extinction Crisis, 4; PYLA, Submission to the Inquiry into Australia’s Extinction Crisis (Attachment 1), 13–14; PYLA, Submission to the Inquiry into Australia’s Extinction Crisis (Attachment 2), 16; WGCS, Submission to the Senate Environment and Communications References Committee, Inquiry into Australia’s Extinction Crisis, April 2024, 4–5.

[118]. Climate Council of Australia, ‘The Key Climate Outcomes we Need in New Nature Laws’, media release, 17 April 2024; Climate Council of Australia, Submission to the Senate Environment and Communications References Committee, Inquiry into Australia’s Extinction Crisis, April 2024; Lock the Gate Alliance, ‘New Federal EPA is Window Dressing on John Howard-Era Environmental Laws’, media release, 29 May 2024.

[119]. Climate Council of Australia, ‘Letter to the Federal Government to Close the Climate Gap on Our Nature Laws’, media release, 1 May 2024.

[120]. Lock the Gate Alliance, ‘New Federal EPA is Window Dressing’.

[121]. Australia Institute, ‘Australia’s Environmental Laws Must Stop New Fossil Fuel Projects’, media release, 17 April 2024.

[122]. See generally submissions to the Samuel Review, and Environment and Communications References Committee, Australia’s Extinction Crisis: Interim Report, (Canberra: The Senate, May 2024).

[123]. World Wildlife Fund Australia (WWF-Australia), ‘Australian EPA is a Potential “Game Changer”, but Comprehensive Package of Reforms are Needed to Prevent Extinctions’, media release, 16 April 2024; Megan Kessler, Nature Laws Explainer – EPBC Reforms Stage 2, Humane Society International (HSI) (blog), 27 May 2024; Australian Conservation Foundation (ACF), ‘Independence of New EPA is Critical: ACF’, media release, 29 May 2024; Australian Marine Conservation Society, ‘Promised Nature Law Reform Urgently Needed so New National EPA Not Stuck With Failed Laws’, media release, 29 May 2024; Wilderness Society, EJA and Conservation Council of WA, ‘“Not good enough”: EPA Bill tabled in Parliament prompts calls for integrity and urgent reform to halt extinction’, media release, 29 May 2024.

[124]. WWF-Australia, ‘Australian EPA is a Potential “Game Changer”’; WWF-Australia, ‘EPA is welcome but won’t solve Australia’s extinction crisis’, media release, 29 May 2024.

[125]. ACF, ‘Independence of New EPA is Critical: ACF’; Megan Kessler, Nature Laws Explainer – EPBC Reforms Stage 2.

[126]. ACF, ‘Independence of New EPA is Critical: ACF’.

[127]. HSI, ‘Australia’s Nature Positive Future Hangs in the Balance’, media release, 29 May 2024.

[128]. Megan Kessler, Nature Laws Explainer – EPBC Reforms Stage 2.

[129]. Wilderness Society, ‘Reforms to the EPBC Act Must Enshrine a Fair Say for the Community’, media release, 16 October 2023.

[130]. Wilderness Society, EJA and Conservation Council of WA, ‘“Not good enough”: EPA Bill tabled in Parliament’.

[131]. Wendy Craik, Review of Interactions Between the EPBC Act and the Agriculture Sector, a final report prepared for the Department of the Environment and Energy, (Acton: Aither, September 2018), 2 [of pdf].

[132]. Adrian Rauso, ‘Nature Positive Plan Sparks Fears for Farmers and Concerns on Nation’s Food Supply’, The Nightly, 19 March 2024.

[133]. Farmers for Climate Action, Submission to DCCEEW’s Nature Positive Reform Consultation, 27 March 2024.

[134]. Chamber of Minerals and Energy of Western Australia, ‘Positive Signs for a Reformed Nature Positive’, media release, 16 April 2024.

[135]. Remy Varga, ‘Mining giant BHP warned Albanese Government months ago “Nature Positive” legislation would create big issues’, The Nightly, 13 March 2024; Colin Packham, ‘LNG in call for consultation’, Herald Sun, 22 May 2024. See also: Emily Gibson, ‘Offshore Petroleum and Greenhouse Gas Storage Legislation Amendment (Safety and Other Measures) Bill 2024’, Bills Digest, 56, 2023–24, (Canberra: Parliamentary Library, 2024).

[136]. Minerals Council of Australia (MCA), ‘EPBC Reforms Must Get the Balance Right’, media release, 16 April 2024; Association of Mining and Exploration Companies (AMEC), Submission to DCCEEW’s Nature Positive Reform Consultation, 30 March 2024, 9.

[137]. MCA, ‘EPBC Reforms Must Get the Balance Right’; AMEC, Submission to DCCEEW’s Nature Positive Reform Consultation, 10.

[138]. Business Council of Australia (BCA), ‘Environmental Law Reform Needs to Improve Outcomes and Not Risk Future Investment’, media release, 16 April 2024.

[139]. BCA, ‘Business Concerned by Nature Positive Legislation’, media release, 29 May 2024.

[140]. See for example, Environment Ministers’ Meeting, Communique, (Adelaide: Environment Ministers’ Meeting, Adelaide, 10 November 2023), 2–3; Environment Ministers’ Meeting, Communique, (Sydney: Environment Ministers’ Meeting, Sydney, 9 June 2023).

[141]. Environment Ministers’ Meeting, Communique, 10 November 2023, 3; Tanya Plibersek, Transcript of Press Conference: Labor’s Nature Positive Plan: Better for the Environment, Better for Business, Brisbane, 8 December 2022; Tanya Plibersek (Minister for the Environment and Water) and Anthony Roberts (NSW Minister for Lands and Homes), ‘Regional Plans to Transform Environmental Protection’, media release, 22 December 2022.

[142]. Sarah Ison, ‘Backdown on Plibersek’s “Green Cop” Laws’, The Australian, 17 April 2024; Josh Zimmerman, ‘Nature Positive Plan: Anthony Albanese won’t Commit to Releasing Full Details Before the Next Election’, The Nightly, 8 May 2024.

[143]. Australian Government, Budget Measures: Budget Paper No. 2: 2023–2024, May 2023, 77.

[144]. Australian Government, Budget Paper No. 2: 2023–24, 77.

[145]. Andrew Wilkie, ‘New EPA Chronically Underfunded’, media release, 11 May 2023.

[146]. Australian Government, Budget Measures: Budget Paper No. 2: 2024–25, May 2024, 71.

[147]. Tanya Plibersek (Minister for the Environment and Water), ‘Environment and business to benefit from Nature Positive Plan’, media release, 16 April 2024; Tanya Plibersek (Minister for the Environment and Water), ‘Advancing a Nature Positive Australia’, media release, 14 May 2024.

[148]. Australian Government, Budget Paper No. 2: 2024–25, 58 and 72.

[149]. Explanatory Memorandum, EPA Bill, 5; Explanatory Memorandum, EIA Bill, 5; Explanatory Memorandum, Transitional Provisions Bill, 7.

[150]. The Statement of Compatibility with Human Rights can be found at pages 38–43 of the Explanatory Memorandum to the EPA Bill, pages 36–42 of the Explanatory Memorandum to the EIA Bill, and pages 233–241 of the Explanatory Memorandum of the Amendments and Transitional Provisions Bill.

[151]. EPA Bill, clauses 9–11.

[152]. EPA Bill, clauses 10, 52 and 53.

[153]. EPA Bill, clause 44.

[154]. EPA Bill, clauses, 45–51.

[155]. Explanatory Memorandum, EPA Bill, 29.

[156]. EPA Bill, clause 62; see also clause 20.

[157]. Clause 18 of the EPA Bill require the CEO to establish registers of registerable decisions and other matters prescribed by the rules. Four items in the Transitional Provisions Bill repeal provisions relating to the publication of information by the Minister and the Explanatory Memorandum to that Bill (pp. 73, 87, 111, 151) explains that these matters are intended to be specified in the rules made under the EPA Act as matters that must be published in the CEO’s Registers: Schedule 3, Part 1: item 21; Schedule 3, Part 4: item 38; Schedule 6, item 56; Scheule 9, item 136.

[158]. EPA Bill, Part 4.

[159]. EPA Bill, clause 3.

[160]. See for example, EPBC Act, sections 74, 93, 95A, 98, 103, 110, 122, and 131A.

[161]. See for example, EPBC Act, sections 76, 89, 132, 486F and 486G.

[162]. EIA Bill, clause 50; although Schedule 9: item 203 of the Transitional Provisions Bill amends subsection 180(3) of the Recycling and Waste Reduction Act 2020 to include the CEO and members of staff in the class of protected persons for the purposes of that Act. Other examples of this type of provisions are provided at: section 215X of the Water Act 2007 in relation to the Inspector-General of Water Compliance and other protected persons; section 301 of the Offshore Electricity Infrastructure Act 2021 in relation to the Minister, Regulator, CEO, OEI Inspector, etc; section 768 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 in relation to the Commonwealth Minister, Joint Authority, National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA), CEO of NOPSEMA, NOPSEMA inspectors, etc.

[163]. Australian Law Reform Commission (ALRC), Traditional Rights and Freedoms – Encroachments by Commonwealth Laws: Final Report, Report 129 (Sydney: ALRC, December 2015), 438.

[164]. ALRC, Traditional Rights and Freedoms, 436–437.

[165]. EPA Bill, clause 13.

[166]. EPA Bill, clause 11.

[167]. Tanya Plibersek, Second Reading Speech: Nature Positive (Environment Protection Australia) Bill 2024, House of Representatives, Debates, (proof), 29 May 2024, 16; see also: Explanatory Memorandum, EPA Bill, 3.

[168]. Carltona Ltd v Commissioners of Works [1943] 2 All ER 560, as applied in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 1940.

[169]. EPBC Act, sections 515, 515AA and 515AB.

[170]. Explanatory Memorandum, EPA Bill, 12.

[171]. Tanya Plibersek, Second Reading Speech: Nature Positive (Environment Protection Australia) Bill 2024, 15.

[172]. Australian Government Solicitor (AGS), Delegations, Authorisations and the Carltona Principle, Legal Briefing, (Barton: AGS, June 2022), 4.

[173]. DCCEEW, Consultation on National Environmental Laws Canberra, 30–31 October 2023, 23 [of pdf].

[174]. Biodiversity Council, Delivering on Nature Positive, 10; EJA, How to Have Your Say on Australia’s Draft New Environment Law: Submission Guide, 22–23 (EJA, March 2024); EJA, Submission to the Senate Environment and Communications References Committee, Inquiry into Australia’s Extinction Crisis, 4; Frances Medlock and Rachel Walmsley, ‘“Nature Positive” Within Reach – 2024 the Year for Long-Awaited National Environmental Law Reforms’, Environmental Defenders Office (blog), 20 February 2024; WGSC, Submission to the Senate Environment and Communications References Committee, Inquiry into Australia’s Extinction Crisis, 5; Wintle et al, ‘Australia’s Proposed “Nature Positive” Laws’, 65; MCA, ‘EPBC Reforms Must Get the Balance Right’; AMEC, Submission to DCCEEW’s Nature Positive Reform Consultation, 30 March 2024, 9.

[175]. Organization for Economic Cooperation and Development (OECD), The Governance of Regulators, OECD Best Practice Principles for Regulatory Policy, (Paris: OECD, 2014), 68.

[176]. DCCEEW, Consultation for Stage 3 – Nature Positive Law Reform, 1.

[177]. EPA Bill, clause 54. This is consistent with section 24 of the PGPA Act.

[178]. Other Acts provide greater detail in regard to the appointment of advisory groups or committees; see for example: EPBC Act, section 505C; Nature Repair Act 2023, subsection 198(2); Carbon Credits (Carbon Farming Initiative) Act 2011, subsection 257(2).

[179]. EPA Bill, clauses 55–56.

[180]. Explanatory Memorandum, EPA Bill, 32.

[181]. Transitional Provisions Bill, Schedule 2, items 159–162.

[182]. The Threatened Species Scientific Committee is established by section 502 of the EPBC Act, while the Australian Heritage Council is established under the Australian Heritage Council Act 2003.

[183]. For a summary of the governance model of state and territory environment protection authorities, see: National Environmental Law Association (NELA), NELA Issues Paper for Commonwealth Environment Minister – National Independent EPA, (July 2023), Appendix. At the time of writing, there is not an EPA in Queensland.

[184]. OECD, The Governance of Regulators, 68.

[185]. In addition to the earlier sources, see: Environmental Defenders Office (EDO), Implementing Effective Independent Environmental Protection Agencies in Australia: Best Practice Environmental Governance for Environmental Justice, (Sydney: EDO, January 2022), 35.

[186]. Australian Panel of Experts on Environmental Law (APEEL), The foundations of environmental law: goals, objects, principles and norms, Technical Paper 2, (Melbourne: APEEL, 2017), 69 (contained with compilation).

[187]. APEEL, The foundations of environmental law: goals, objects, principles and norms, 69.

[188]. EDO, Implementing Effective Independent Environmental Protection Agencies, 35.

[189]. NELA, Issues Paper for Commonwealth Environment Minister National Independent EPA, (July 2023), 3.

[190]. Justice Nicola Pain, Reflections on a National EPA, presentation to the Environmental Law in Review Conference, University of Sydney Law School, 14 February 2023, 5; see also: Justice Nicola Pain, ‘Conceptualising a Commonwealth Environment Protection Authority’, Australian Environment Review 36, no. 4 (December 2021), 78–82.

[191]. DCCEEW, Nature Positive Plan, 29.

[192]. Other examples of statutory officers within the environment portfolio include the Regulator under the Water Efficiency Labelling and Standards Act 2005 and the Supervising Scientist under the Environment Protection (Alligator Rivers Region) Act 1978.

[193]. Explanatory Memorandum, EIA Bill, 3.

[194]. EIA Bill, clause 11.

[195]. Tanya Plibersek, Second Reading Speech: Nature Positive (Environment Protection Australia) Bill 2024, House of Representatives, Debates, (proof), 29 May 2024, 15.

[196]. EIA Bill, clause 12.

[197]. EIA Bill, Part 4.

[198]. Explanatory Memorandum, EIA Bill, 3.

[199]. DCCEEW, Nature Positive Plan, 29.

[200]. DCCEEW, Consultation on National Environmental Laws 26–28 March 2024, 45 [of pdf].

[201]. Transitional Provisions Bill, Schedule 13, Part 1: item 1.

[202]. DCCEEW, Nature Positive Plan, 1.

[203]. Megan C. Evans, Submission to the Senate Environment and Communications References Committee, Inquiry into Australia’s Extinction Crisis, 9 April 2024, 4; Adam Morton, ‘Labor has adopted its own “nature positive” approach to the environment. But is it just a “snazzy slogan”?’, Guardian, 5 June 2024.

[204]. Biodiversity Council, Delivering on Nature Positive, 3.

[205]. EPBC Act, section 516B. Subsection 516B(2) allows the EPBC Regulations to prescribe matters to be addressed in the report, however, no such matters have been prescribed.

[206]. A consequential amendment (Schedule 13, Part 2: item 7) in the Transitional Provisions Bill repeals section 516B of the EPBC Act.

[207]. Transitional Provisions Bill, Schedule 13, Part 1: item 2.

[208]. EIA Bill, clause 18.

[209]. Tracey Ferrier, ‘Ley to decide on report’s future’, Canberra Times, 9 April 2022; Tanya Plibersek, Address to the National Press Club: 2021 State of the Environment Report, 19 July 2022, 2.

[210]. Tanya Plibersek, Second Reading Speech: Environment Information Australia Bill 2024, House of Representatives, Debates, (proof), 29 May 2024, 16.

[211]. Sussan Ley (then Minister for the Environment), ‘State of the Environment Report Co-Chiefs Appointed’, media release, 13 August 2020; Emma Johnston, Ian Cresswell and Terri Jenke, ‘This is Australia’s Most Important Report on the Environment’s Deteriorating Health. We Present its Grim Findings’, The Conversation, 19 July 2022.

[212]. EIA Bill, subclauses 18(2) and 18(3). See also: Transitional Provisions Bill, Schedule 13, Part 1: item 2.

[213]. Brendan Wintle et al, ‘Spending to Save: What Will it Cost to Halt Australia’s Extinction Crisis?’, Conservation Letters 12, no. 6 (2019): e12682; Bonnie Mapping, Adrian Ward, Lesley Hughes, James E.M. Watson, Peter Cosier and Hugh P. Possingham, ‘The Costs and Benefits of Restoring a Continent’s Terrestrial Ecosystems’, Journal of Applied Ecology 59, no. 2 (2021): 408–419; Invasive Species Council, Bush Heritage Australia, Birdlife Australia, the Australian Land Conservation Alliance and HSI, Averting Extinctions: The Case for Strengthening Australia’s Threat Abatement System, (Invasive Species Council, 2022).

[214]. Explanatory Memorandum, EIA Bill, 14.

[215]. Relevant provisions in Part 13 establish criminal offences for killing, injuring, taking or trading a threatened species or ecological community, a migratory species (other than a cetacean) or a marine species, in a Commonwealth area, a cetacean in or beyond the Australian Whale Sanctuary, and a notification requirement in relation to those actions. In each case, exceptions are provided for such actions, including when a relevant permit was in place. The Bill transfers all relevant functions to the CEO.

[216]. Transitional Provisions Bill, Schedule 2: items 83–89.

[217]. Transitional Provisions Bill, Schedule 2: items 127–128 (applying to the Federal Court for an injunction); Schedule 2: items 129–130 (applying to the Federal Court for a remediation order); item 143 (applying to the Federal Court for a civil penalty order).

[218]. Samuel, Independent Review of the EPBC Act 1999: Final Report, 147, 150–153.

[219]. Samuel, Independent Review of the EPBC Act 1999: Final Report, 147.

[220]. Tanya Plibersek, Second Reading Speech: Nature Positive (Environmental Law Amendments and Transitional Provisions Bill) 2024, House of Representatives, Debates, 29 May 2024, 17.

[221]. Environmental authorities are defined as meaning an approval under Part 9 or a permit issued under Chapter 5: Schedule 11, Part 1: item 5.

[222]. Schedule 11, Part 1: items 9–11; Schedule 11, Part 2: item 49.

[223]. Schedule 2: items 109–116 (directed environmental audits and compliance audits); Schedule 2: items 117–126 (environment protection orders).

[224]. An environmental authority is defined in subsection 458(4) as an approval under Part 9 (that is, an approval of a controlled action) and a permit issued under Chapter 5 (relating to the killing, injuring, taking or trading a threatened species or ecological community, a migratory species (other than a cetacean), a cetacean, or a marine species, or knowingly damaging critical habitat).

[225]. An environmental order would be defined as an environment protection order, a conservation order, a remediation determination or a remediation order: Schedule 11, Part 1: item 6.

           An environmental exemption would be defined as an exemption granted under section 158 (generally referred to as the national interest exemption to an approval under Chapter 4) and an exemption granted under section 303A (an exemption in the national interest under Part 13): Schedule 11, Part 1: item 6.

[226] . EPBC Act, section 146D. Explanatory Memorandum, Transitional Provisions Bill 2024, 173.

[227]. A marine park order means a vessel monitoring direction, an emergency direction, an enforceable direction, and a remediation order under the Great Barrier Reef Marine Park Act 1975 (GBRMP Act), while a marine park permission means a permission granted under regulations made under the GBRMP Act: Schedule 11, Part 1: item 8.

[228]. Explanatory Memorandum, Transitional Provisions Bill 2024, 177–178.

[229]. Schedule 11, Part 1: item 2, proposed section 474A.

[230]. Explanatory Memorandum, Transitional Provisions Bill 2024, 186.

[231]. Explanatory Memorandum, Transitional Provisions Bill 2024, 189.

[232]. The current value of a penalty unit is $313: Crimes (Amount of Penalty Unit) Instrument 2023. This is proposed to increase to $330 from 1 July 2024: Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2024.

[233]. Tanya Plibersek, Second Reading Speech: Nature Positive (Environmental Law Amendments and Transitional Provisions Bill) 2024, 17.

[234]. Explanatory Memorandum, Transitional Provisions Bill 2024, 199–202.

[235]. Explanatory Memorandum, Transitional Provisions Bill, 217.

[236]. Note: the Minister can delegate their functions and powers relating to the making of these decisions: EPBC Act, section 515.

[237]. EPBC Act, subsections 75(5), 88(1) and 130(1B), and subsection 130(4).

[238]. EPBC Act, sections 76, 89 and 132.

[239]. Explanatory Memorandum, Transitional Provisions Bill, 219; EPBC Act, subsections 75(6), 88(4) and 130(5). The Minister and proponent may also agree to stop the clock for a specified period: subsection 88(5). The clock may also be stopped if the Minister is required to obtain advice from the Independent Expert Scientific Committee on Unconventional Gas and Large Coal Mining Development: EPBC Act, subsection 130(4A).

[240]. See for example, section 258 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 and section 11A of the Safety, Rehabilitation and Compensation Regulations 2019.

[241]. Explanatory Memorandum, Transitional Provisions Bill, 219.

[242]. Samuel, Independent Review of the EPBC Act 1999: Final Report, 84–85.

[243]. Samuel, Independent Review of the EPBC Act 1999: Final Report, 85.

[244]. See for example, Australian National Audit Office (ANAO), Referrals, Assessments and Approvals on Actions under the Environment Protection and Biodiversity Conservation Act 1999: Department of Agriculture, Water and the Environment, Audit report, 47, 2019–20, (Canberra: ANAO, 2020), 16–18; Sophie Power, ‘Environmental Approvals’, Budget Review 2020–21, Research paper, 2020–21, (Canberra: Parliamentary Library, 2020).

[245]. Tanya Plibersek, Second Reading Speech: Nature Positive (Environmental Law Amendments and Transitional Provisions) Bill 2024, House of Representatives, Debates, (proof), 29 May 2024, 18.

[246]. EPBC Act, subsection 156(3) and section 518.

[247]. Department of the Environment and Energy (DEE), Environment Protection and Biodiversity Conservation Act 1999 (Cth): Policy Statement: Statement of Reasons, (Canberra: DEE, 2019). See also: EPBC Act, Division 3 of Part 7 (Reconsideration of decisions); section 487 (extended standing); Administrative Decisions (Judicial Review) Act 1977, subsection 13(1).

[248]. Justice Nicola Pain, ‘Conceptualising a Commonwealth Environment Protection Authority’, 81.

[249]. Damon Muller, So When is the Next Federal Election? A Quick Guide, Research paper series, 2022–23, (Canberra: Parliamentary Library, 2022).

[250]. See footnote 213.

[251]. The Environment Protection (Sea Dumping) Amendment (Using New Technologies to Fight Climate Change) Act 2023 received Royal Assent on 27 November 2023. Key amendments are yet to commence but, if they do, will allow the Minister to grant permits for the export of carbon dioxide streams for sequestration into a sub-seabed geological formation and for the placement of wastes or other matter for marine geoengineering activities.

[252]. Joint Standing Committee on Treaties, Australia-Iceland Double Taxation; Underwater Cultural Heritage, Report 207, 2023, March 2023, 29.

Glossary

CEO (of the EPA)	Chief Executive Officer of Environment Protection Australia
DCCEEW	Department of Climate Change, Energy, the Environment and Water
Director	Director of National Parks
EIA	Environment Information Australia
EPA	Environment Protection Australia
EPA Act	Nature Positive (Environment Protection Australia) Act 2024 (if enacted)
EPBC Act	Environment Protection and Biodiversity Conservation Act 1999
EPBC Regulations	Environment Protection and Biodiversity Conservation Regulations 2000
GBF	Kunming-Montreal Global Biodiversity Framework
Hazardous Waste Act	Hazardous Waste (Regulation of Exports and Imports) Act 1989
HEIA	Head of Environment Information Australia
MNES	Matter of national environmental significance (protected matters)
Minister	Minister administering the environment portfolio
NES	National Environmental Standard
NPP	Nature Positive Plan
PGPA Act	Public Governance, Performance and Accountability Act 2013
Regulatory Powers Act	Regulatory Powers (Standard Provisions) Act 2014
Sea Dumping Act	Environment Protection (Sea Dumping) Act 1981
Sea Dumping Amendment Act	Environment Protection (Sea Dumping) Amendment (Using New Technologies to Fight Climate Change) Act 2023
Secretary	Secretary of the department administering the environment portfolio

Terms or phrases defined in the Bills or other Acts are italicised in this Digest. References to the Minister should be taken to include a delegate of the Minister, where, in the relevant circumstance, the Minister has the power to delegate any and all of their relevant functions and powers to a delegate in accordance with sections 515 and 515AA of the EPBC Act.

Links

The links to the Bills, their Explanatory Memoranda and second reading speeches can be found on the home pages for the Nature Positive (Environment Protection Australia) Bill 2024, Nature Positive (Environment Information Australia) Bill 2024 and the Nature Positive (Environmental Law Amendments and Transitional Provisions) Bill 2024, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at June 2024.

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