Chapter 1Introduction
Introduction
1.1This is the third interim report that the Senate Environment and Communications References Committee (the committee) has presented as part of its inquiry into Australia’s extinction crisis, which commenced in the 45th Parliament. This report considers recent evidence received by the committee about the Australian Government’s process to reform the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). This process follows longstanding calls for reform, including from this committee in its first interim report of April 2019.
1.2On 28 March 2024, the committee resolved to receive submissions and hold a public hearing to examine the latest developments in the ongoing reform process. More information about the conduct of this inquiry to date is outlined below.
1.3This report considers the key themes raised in evidence received in response to this call for submissions and at the public hearing, which was held on 17April2024.
Conduct of the inquiry
1.4This inquiry was initially referred on 27 June 2018, during the 45th Parliament, under the inquiry name ‘Australia’s faunal extinction crisis’. It was subsequently re‑referred in the 46th and 47th Parliaments.
45th Parliament
1.5During the 45th Parliament, the committee received 423 submissions and held six public hearings. A detailed interim report was tabled in April 2019. This report focused on the effectiveness of the EPBC Act as a legislative framework for protecting the Australian environment. Importantly, it found that Australia’s rate of faunal extinction had continued to increase since the introduction of the EPBC Act two decades earlier. It made two recommendations:
that new environmental legislation be developed to replace the EPBC Act; and
that an independent environment protection agency be established with sufficient powers and funding to oversee compliance with Australia’s environmental laws.
46th Parliament
1.6During the 46th Parliament, the committee received 62 submissions and held six public hearings. A second interim report, tabled in December2019, focused on threats faced by faunal species dependent on native grasslands. As a case study, it considered potential breaches of the EPBC Act by Jam Land Pty Ltd in the alleged illegal clearing of critically endangered native grassland on the Southern Monaro Plains of New South Wales. The committee’s three recommendations in that report related to matters raised in the case study.
47th Parliament
1.7This inquiry was re-referred by the Senate at the commencement of the 47thParliament under the amended title ‘Australia’s extinction crisis’ following a recommendation of the committee.
1.8The inquiry’s updated terms of reference task the committee with considering:
(a)the ongoing decline in the population and conservation status of Australia’s nearly threatened fauna and flora species;
(b)the wider ecological impact of faunal and flora extinction;
(c)the international and domestic obligations of the Commonwealth Government in conserving threatened species;
(d)the adequacy of Commonwealth environment laws, including but not limited to the Environment Protection and Biodiversity Conservation Act 1999, in providing sufficient protections for threatened species and against key threatening processes;
(e)the adequacy and effectiveness of protections for critical habitat for threatened fauna under the Environment Protection and Biodiversity Conservation Act 1999;
(f)the adequacy of the management and extent of the National Reserve System, stewardship arrangements, covenants and connectivity through wildlife corridors in conserving threatened fauna;
(g)the use of traditional knowledge and management for threatened species recovery and other outcomes as well as opportunities to expand the use of traditional knowledge and management for conservation;
(h)the adequacy of existing funding streams for implementing threatened species recovery plans and preventing threatened fauna loss in general;
(i)the adequacy of existing monitoring practices in relation to the threatened species assessment and adaptive management responses;
(j)the adequacy of existing assessment processes for identifying threatened species conservation status;
(k)the adequacy of existing compliance mechanisms for enforcing Commonwealth environment law;
(l)final report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (the Samuel Review);
(m)the Australia State of the Environment 2021 report; and
(n)any related matters.
1.9The committee’s initial reporting date of 28 June 2023 was extended by the Senate to 6 December 2023 and further extended to 28June2024.
1.10A call for submissions was made at the commencement of the 47th Parliament. The committee advertised the inquiry on its webpage and wrote to various organisations and individuals to invite submissions by 31 August 2022. In response, 68 submissions were received, which are published on the inquiry webpage.
1.11On 28 March 2024, the committee called for further submissions from targeted submitters on the progression of the Australian Government’s reforms to the EPBC Act. The closing date for this round of submissions was 9April2024. A further 23 submissions and supplementary submissions were received in response to this second call for submissions, which are listed at Appendix 1, and published on the inquiry webpage.
1.12A public hearing was held in Canberra on 17 April 2024. A list of witnesses that gave evidence at the hearing is available at Appendix 2.
1.13Evidence received by the committee can be found on its website. This includes the Hansard transcript of evidence from the hearing, tabled documents, public submissions and answers to questions on notice.
Structure of the report
1.14This report comprises the following chapters:
Chapter 1 provides background information on the inquiry and the EPBC reform process.
Chapter 2 discusses key issues raised in the submissions received in response to the call for submissions on 28 March 2024 and the public hearing on 17 April 2024, and provides the committee’s views and recommendations.
Note on references
1.15In this report, references to the Committee Hansard are to the proof (that is, uncorrected) transcript. Page numbers may vary between the proof and the official transcript.
Acknowledgements
1.16The committee thanks the organisations and individuals that made submissions to this inquiry and those that appeared at the committee’s public hearing.
Background to the reforms
The EPBC Act
1.17The EPBC Act is the Commonwealth’s key environmental legislation relating to the protection of threatened species of flora and fauna, as well as ecological communities and heritage sites. The EPBC Act came into force on 16 July 2000 and, under the current Administrative Arrangements Order, is administered by the Department of Climate Change, Energy, the Environment and Water (DCCEEW).
1.18The objects of the EPBC Act are:
(a)to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance; and
(b)to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources; and
(c)to promote the conservation of biodiversity; and
(ca) to provide for the protection and conservation of heritage; and
(d)to promote a co-operative approach to the protection and management of the environment involving governments, the community, land holders and indigenous peoples; and
(e)to assist in the co-operative implementation of Australia’s international environmental responsibilities; and
(f)to recognise the role of indigenous people in the conservation and ecologically sustainable use of Australia’s biodiversity; and
(g)to promote the use of indigenous peoples’ knowledge of biodiversity with the involvement of, and in co-operation with, the owners of the knowledge.
Independent review of the EPBC Act
1.19Section 522A of the EPBC Act requires ten-yearly independent reviews of the operation of the EPBC Act and the extent to which its objects have been achieved. The second and most recent review was led by ProfessorGraemeSamuelAC in 2019-20 (the Samuel Review). Informed by expert advice and feedback from a wide range of stakeholders, the Samuel Review presented to the former government an interim report in June 2020 and a final report in October 2020 containing 38recommendations.
1.20Professor Samuel’s final report explained that ‘Australia’s natural environment and iconic places are in an overall state of decline and are under increasing threat’. His report described the EPBC Act as ‘out dated and [requiring] fundamental reform’. It stated that the Act:
…does not enable the Commonwealth to effectively fulfil 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.
The resounding message that I heard throughout the Review is that Australians do not trust that the EPBC Act is delivering for the environment, for business or for the community.
1.21Professor Samuel proposed broadscale reform to Australia’s environment protection framework towards outcomes-focused law, centred around National Environmental Standards, and supported by independent oversight and audit processes. Professor Samuel also proposed a mandated, rigorous compliance and enforcement regime, and a shift in attitude to listen and learn from Indigenous Australians and enable them to effectively participate in decision making.
1.22Professor Samuel recommended reform in three tranches. Tranche 1 included implementation of the National Environmental Standards and the establishment of oversight arrangements. Tranche 2 included comprehensive amendments to the EPBC Act to support the application of National Environmental Standards and national and regional planning. Tranche 3 included reforms to the management of Commonwealth reserves and settings for the Director of National Parks and joint-management.
Government response to the Samuel review—the Nature Positive Plan
1.23The Albanese Government released its response to the Samuel Review in late 2022. Titled the Nature Positive Plan: better for the environment, better for business (NaturePositive Plan), the Government’s response addresses the recommendations from the Samuel Review and considers new information and opportunities, including the findings from the State of the Environment 2021 report.
1.24The proposed reform agenda set out in the Nature Positive Plan is described as ‘the most comprehensive remaking of national environmental law since the EPBC Act was first introduced’. The key aspects of reform outlined in the Nature Positive Plan include:
the introduction of National Environmental Standards, which would ‘set out the environmental outcomes that [the] laws are seeking to achieve [and]…will underpin…environmental law reforms’. The initial standards for development as identified under the plan include:
Matters of National Environmental Significance;
First Nations engagement and participation in decision-making;
community engagement and consultation;
regional planning; and
environmental offsets;
facilitating the accreditation of states and territories to undertake assessments on behalf of the Commonwealth for ‘single-touch decision‑making’;
the creation of regional plans to ‘pre-identify areas for protection, restoration and sustainable development’;
reform to environmental offsets and the creation of conservation payments;
the establishment of an independent environment protection agency to be a ‘tough “cop on the beat”’. This agency would be responsible for compliance and enforcement under the new Act, and would be an independent statutory entity, with a statutorily appointed CEO; and
the formation of a Data Division within DCCEEW to ‘provide clear authoritative sources of high-quality environmental information’.
1.25The Nature Positive Plan identified next steps as follows:
A package of new national environmental legislation will be prepared in the first six months of 2023 to implement these reforms. During this period, there will be extensive consultation with stakeholders around the detail of the legislation. Draft legislation will be released to enable further consultation and detailed feedback. The legislation will be released as an exposure draft prior to being introduced into the Parliament before the end of 2023.
1.26Two reforms within the Nature Positive Plan, the establishment of the Nature Repair scheme and expanding the water trigger to include all forms of unconventional gas, have already been implemented.
Progression of proposed reforms
1.27The reform agenda to date has involved selective stakeholder consultation on draft legislation and National Environmental Standards.
1.28In October 2023, DCCEEW commenced stakeholder consultations to incorporate a wide range of feedback on the draft EPBC legislation. Experts from over 30 peak body groups, including environment, business, and First Nations representatives, were invited to examine exposure drafts of the legislation. The exposure draft legislation was not released for public consultation. Four stakeholder consultations took place across October and December 2023, and February and March 2024. Policy papers have been publicly released a month after each of these sessions.
1.29DCCEEW also hosted three public webinars between November 2023 and April2024. The department told the committee that approximately 2,000 participants attended two webinars held in November 2023. The consultation process has extended into 2024 with DCCEEW accepting public comment about the reforms through a ‘Have Your Say’ platform, accessed through the Nature Positive Reform website. The department has received approximately 2,500 submissions to date.
1.30Appearing before the Environment and Communications Legislation Committee during 2023-24 Supplementary Budget Estimates hearings in October 2023, DCCEEW explained that the Government intended to have the EPBC reform legislation ready for introduction into parliament as early as possible in 2024.
April 2024 announcement
1.31On 16 April 2024, the Minister for the Environment and Water, the HonTanyaPlibersek MP and DCCEEW backtracked from a commitment to a comprehensive package of legislation, instead reframing the agenda as a staged approach to the progression of reforms to the EPBC Act, defined as:
Stage 1 involved establishing the Nature Repair scheme and expanding the water trigger. As noted above, this has been completed.
Stage 2 involves the creation of Environment Protection Australia (EPA) and Environment Information Australia (EIA). Relevant legislation is said to be introduced ‘in the coming weeks’.
Stage 3 involves the completion of the environmental law reforms ‘as outlined in the Nature Positive Plan’. The Minister’s announcement states that consultation on these laws continues, and a ‘comprehensive exposure draft of the new laws [will be] released for public consultation, prior to their introduction to Parliament’.
Reform priorities
EPA and EIA
1.32Noting that legislation is yet to be released, the Minister and DCCEEW have released some detail on the proposed EPA and EIA.
EPA
1.33The EPA would be an independent national environment protection agency which would ‘be resourced and empowered to ensure compliance with the new Act’. According to a media release, it would be responsible for:
making environmental assessments
deciding project approvals and conditions
issuing permits and licences
educating industry, business and the community to help them navigate our environment laws
speeding up development decisions, including project assessments.
1.34In addition to the existing compliance and enforcement powers, the EPA’s regulatory tool kit would be expanded to include the ability to:
provide better guidance and education to make sure businesses are clear about the rules, so they can do the right thing
issue Environment Protection Orders – or ‘stop-work’ orders – to anyone in contravention, or likely contravention, of the EPBC Act
use expanded powers to audit businesses to ensure they are compliant with EPBC environment approval conditions.
1.35Penalties under the EPBC Act would also increase. For extremely serious intentional breaches of national environmental law, courts would be able to impose financial penalties of up to $780 million and criminal breaches could attract a punishment of seven years imprisonment.
1.36Initially, the EPA would be set up within DCCEEW, with a view to it becoming an independent statutory authority from 1 July 2025, headed by an independent statutory officer. The Minister stated that such an arrangement would allow for a global search for a person to be appointed to that position.
EIA
1.37A second agency, the EIA, would seek to meet the need for better environmental information that underpins Professor Samuel’s data, information and systems recommendations. According to the Albanese Government, the EIA would:
provide government and the general public with authoritative, high‑quality information and environmental data via a public website;
develop an online database to help give business quicker access to data to help make federal environmental approvals smoother – this will help avoid the need for scientific studies to be unnecessarily repeated;
be required, by law, to publish State of Environment reports more frequently – every two years, instead of five…; and
publicly report on progress towards environmental goals such as protecting 30 per cent of Australia’s land and seas by 2030.
1.38The EIA would be established as a division within DCCEEW to improve environmental data and information. However, under the proposed reforms, the EIA would be led by a statutory office holder with independent functions.
Remaining elements of the Nature Positive Plan reforms
1.39“Stage 3” reforms would include the remaining, substantial reforms identified in the Nature Positive Plan, such as the National Environmental Standards, regional planning, restoration action and contributions, and First Nations engagement.