Dissenting report from the Australian Labor Party

1.1The Australian Labor Party notes that the Australian Greens political party, the Liberals and the Nationals have colluded to endorse a committee report which prioritises political point scoring over policy.

Labor is cleaning up the Liberals’ mess

1.2The Albanese Labor Government was elected on 21 May 2022 and inherited an environmental portfolio in disarray after a decade of neglect under the Liberals and Nationals.

1.3On her appointment as Minister for the Environment and Water, the Hon Tanya Plibersek MP released the 2021 State of the Environment Report, which the former Liberal Minister for the Environment, the Hon Sussan Ley MP, received before Christmas and refused to publish ahead of the 2022 election.

1.4The State of the Environment Report detailed just how much damage a decade of Liberal and National Party neglect did to our environment.It found that the Australian environment is in very bad shape and getting worse.

1.5It found that:

Australia has lost more mammal species to extinction than any other continent.[1]

for the first time, Australia has more foreign plant species than native.[2]

habitat the size of Tasmania has been cleared.[3]

plastics are choking our oceans—up to 80,000 pieces of plastics per square kilometre.[4]

the flow in most Murray-Darling rivers had reached record low levels.[5]

1.6The committee report, endorsed by the Greens political party and the Coalition outlines the lengthy process underpinning Professor Graeme Samuel AC’s Independent Review of the EPBC Act.

1.7Professor Samuel undertook his independent review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) throughout 2019‑2020. Professor Samuel’s final report included 38recommendations which were handed down to the Morrison Government in October 2020.

1.8Professor Samuel also noted that the project of nature law reform was vast and required a staged and sustained effort from government to be achieved:

The EPBC Act requires fundamental reform, and a sensible and staged pathway of change is needed to achieve this. Changes should be made immediately to deliver the best possible outcomes from dated law. This should be followed by a concerted effort to fundamentally re-write and modernise the Act and its implementation.

A sustained commitment to change is required from all stakeholders. Legislative reform should not be a once-in-a-decade opportunity, but rather part of a sensible process of continuous improvement.[6]

1.9Despite these recommendations, the former Coalition Government took no action throughout their term. On coming to Government, Labor inherited a policy vacuum and an under-resourced public service after the Coalition cut funding to the environment portfolio by 40 per cent.

Process to date

1.10All senators and submitters throughout this inquiry acknowledged the scale of the drafting process to rewrite Australia’s environmental laws.

1.11Professor Samuel, in his evidence to the committee said that:

I did outline three stages of reform, and, to the best of my knowledge, those stages are taking place in an orderly process. The most complex area of reform was the redraft of the act; I call it the redraft. Frankly, the thousand pages of legislation and the 500 pages of regulation need to be torn up and thrown into the bonfire because they were, as I've described them more recently, gobbledegook…that's the most complex issue.[7]

1.12Given the size of this task, the Minister instructed the Department of Climate Change, Energy, the Environment and Water (DCCEEW) to consult on the broad policy areas in the legislation from October 2023. Mr Dean Knudson, Deputy Secretary of DCCEEW, outlined this consultation process:

In terms of consultation, we've gone through four rounds of consultation. There are a couple of elements, for example, that we need to still finish initial rounds on. That would include the restoration contributions program that we're setting up as well as the First Nations engagement standard. That's the one standard we have not consulted on. So we know we have to do those two on a first pass. The other thing that I've said many times, including at estimates, is that the big challenge we have after that is—we'll have gone through policy papers. I think there are 272 pages on our website of those policy papers, on each of the elements of the various bills. We then need to take stock of all the feedback that we have gotten. We have gotten, literally, thousands of pages of feedback. A number are really substantive pieces from individual peak bodies. We also have a 'have your say' website and we've had 2,500 submissions there. We have to consolidate all of that feedback and then figure out what the amendments are that we need to do on those first pass documents.[8]

1.13Even when questioning the senior officials from DCCEEW, Liberal Senator Duniam stressed that he did not ‘[want] to diminish the complexity of the task’. He went on further to say, ‘I can't blame you if you haven't been able to stick to those time frames. It's not your fault; it's a very complex process [emphasis added].’[9]

1.14When discussing the nature of the advice provided back to Government following the consultation process, Mr Knudson made the following points:

…when we've gotten into the complexity of the consultations, the extent of the feedback and the conflicting views within that feedback, that has, quite frankly, been quite noticeable. We've had literally hundreds of hours with stakeholders, whether it's the peak bodies on the business side or the environment side, or individuals et cetera.[10]

1.15Several organisations noted positive elements of this consultation process.

1.16Dr Kate Andrews from NRM Regions Australia noted:

I think there has been goodwill behind the process and a genuine intent to engage and listen to people. I, like James, do not think it is the ideal process, but I'm not sure what is, for the very reasons that I've talked about, with the complexity of what we're trying to do—the fact that this is generational step change with the legislation and the fact that we are trying to do more with this legislation with regard to the nature positive piece, not just the protection piece, and the other threatening processes that are at play. To me it is an enormous challenge.[11]

1.17She went on to say:

I do like the immediacy. The fact that you have people in the room when you're going through something so you can go, 'I don't understand this,' or, 'Actually I have an issue with this,' and you can go and tap someone on the shoulder and they are there to actually answer that question or take that on board—I have found that to be a really positive thing.[12]

1.18Mr Brendan Sydes from the Australian Conservation Foundation also noted positive aspects of the consultation process:

There have been good opportunities, actually, to discuss things with senior departmental officials and to see material and provide feedback. Some of that at some level has been adopted.[13]

1.19Following incorrect representations from Opposition senators, Mr Sydes also corrected the record to clarify that, in some aspects ‘…yes. There has been movement on some issues as a result of submissions that have been made and discussions that have been had’.[14]

1.20Labor senators note the conviction of environmental groups, however, the inconsistencies in organisations’ evidence to the inquiry was stark. Many environmental groups, through their evidence, argued that the Government should introduce legislation as a matter of urgency. At the same time, they stressed their organisations’ views that the documents that they have been consulted on were insufficient.[15] This inconsistency was reinforced by senior officials from DCCEEW when describing both the breadth and substance of the feedback they had received through the consultation process.

1.21For example, Mr James Tregurtha, Division Head of the Nature Positive Taskforce at DCCEEW said:

We've received 67. Many of those submissions, though, run to tens of pages. There were 67 submissions—11 after the October session, 20 after the December session, 27 after the February session, and nine after the March session. But, as a caveat to the nine, they're still coming in. I got another one yesterday. I think it's important to note as well that many of those submissions refer back to the previous three sessions and material that was canvassed across those sessions, because, as Mr Knudson has made clear, other than the legislative inserts, all of the other material presented at those sessions has been loaded onto our website. Indeed, we are also receiving submissions now from other entities who weren't part of the consultation, who have access to those materials on our website, about those materials on our website.[16]

1.22He went on further to say:

We sort them into the various different bits of comments, and then, as MrKnudson has said, where there are simple fixes—some of the comments we get back are frankly editorial, in the sense of 'It would be better if this was fixed' and are relatively simple to make, but in many cases they are quite complex and many of them contradict each other.So then it's a matter of staff going through and comparing what we have been provided with and distilling from that a set of issues that the department, as I said earlier, would need to provide policy advice on and discuss with the minister and her office in terms of handling and ultimately seeking agreement to on positions going forward. This process is still underway now [emphasis added].[17]

1.23The committee was presented with a clear paradox. Namely that the reforms were essential and urgent but also that reform process was necessarily lengthy, given the complexity and extensive consultation required (which was often contradictory).

1.24Mr Brendan Sydes from the Australian Conservation Foundation highlighted the paradox with his statement:

We need to get these reforms done. They need to be done well but they also need to be done with urgency and progressed with urgency.[18]

1.25When questioned about the contradictory nature of these arguments, Ms Woods acknowledged that she ‘can see why that would be confusing’.[19]

1.26At the same time, groups also voiced their support for a staged process.

1.27Dr Kate Andrews from NRM Regions Australia argued that:

Ensuring that the EPA [Environment Protection Australia] and the EIA [Environment Information Australia] are stood up, robust and resourced, so they can support the legislation when the legislation comes in actually seems quite logical to me. I know there's a lot of debate around the timing of the legislation, but, to be very blunt, do any of us want to be responsible for a legacy that provides inadequate legislation that doesn't do the job so we're in more of a mess than we are now in 10 years time? Putting aside timelines, putting aside politics, putting aside all of those things, if we actually want to not just protect but restore our environment over the next while, what is it that we need to do that and how does that have to look? For me, that question is more important, at the moment, than the timing of this.[20]

1.28Mrs Alexia Wellbelove from the Australian Marine Conservation Society also acknowledged that her organisation recognised that ‘[the law reform] is large and complex and may require a staged approach’.[21]

1.29Labor senators further note the inconsistencies in the evidence provided by the environmental organisations by both calling on the Government to introduce legislation as soon as possible and simultaneously noting the difficulties of passing contested legislation through the Senate.

1.30Mr Sam Szoke-Burke from the Wilderness Society optimistically asserted that the Parliament would readily pass this type of complex legislation.[22] Whereas DrKirsty Howey from the Environment Centre Northern Territory spoke of the breadth of substance and controversy that any environmental reforms will attract should they be introduced into the Parliament:

It’s enormously complex, and it's no mean feat to try and get this through parliament. I understand that. My view is that this reform will be contested. It is controversial. It will take some time to get through the Senate.[23]

1.31Passing any environment legislation through the Senate with its current composition is challenging. This has been the experience with nearly all environment and climate change legislation introduced into the 47th Parliament.

1.32Labor senators note that the Liberals have little credibility in criticising the Labor Government’s record on the environment given their inaction while in government themselves. Meanwhile, the Greens are also audacious in their criticism in the face of the extensive work the Labor Government has undertaken since coming into government to improve the environmental laws of this country.

Labor is getting on with the job

1.33In April, Minister Plibersek announced the second stage of the law reform process. The changes will better protect the environment while supporting sensible development. They will deliver stronger environment powers, faster environment approvals, and more environment information and transparency.[24]

1.34The Minister committed to shortly introduce legislation to establish Australia’s first national independent Environment Protection Agency with strong new powers and penalties to better protect nature. The Minister also promised more accountability and transparency with a new body called Environment Information Australia, which will give businesses easier access to the latest environmental data, release State of the Environment reports every two years, and report on progress on national environmental goals. The Government also committed to faster environmental approval decisions on projects, thanks to a $100 million investment, including on renewables and critical minerals.[25]

1.35Labor senators note that many organisations welcomed this next stage through the committee process and through independent releases. This gives further weight to the reality that the Greens and the Coalition are using the EPBC law reforms as a political football rather than actually working to help the environment.

1.36Mr Brendan Sydes from the Australian Conservation Foundation said:

The EPA is a good thing. We have advocated strongly for an EPA for many years. The announcement of Environment Information Australia is good too. I think that's an underappreciated innovation.[26]

1.37This point was supported by Ms Rachel Walmsley from the Environment Defenders Office whose organisation, she said ‘certainly support stronger compliance and enforcement, particularly on things like offsets and illegal clearing’.[27]

1.38Ms Danya Jacobs from Environmental Justice Australia further noted that she could see ‘a real value in stronger enforcement of our national environment laws related to deforestation and land clearing in this country—absolutely. That is critical’.[28]

1.39Dr Howey from the Environment Centre Northern Territory, agreed with the need to stand up an independent EPA:

…my organisation's position is that of course we support an EPA with stronger compliance and enforcement mechanisms. This is a core tenant of the request that we and many other environmental organisations have been making.[29]

1.40When it comes to the next stage of the Government’s reform process, the Minister has been clear that she will keep working on the remainder of our reforms so we can get them into Parliament and passed.

1.41As this inquiry process has outlined, there is still a substantial amount of disagreement. Labor senators acknowledge that we must listen to what stakeholders are telling us and it is clear that they are saying that the most important thing is to get them right. This was the approach that Minister Plibersek outlined in her first address to the National Press Club. She said, ‘the truth is that everyone will have to give a bit to achieve real, lasting, national progress’.[30]

1.42While business groups did not see the necessity to attend this inquiry’s hearings, the message from businesses is unequivocally that the current system is too slow and bureaucratic. Environment groups are saying it does not do enough to halt the destruction of nature. Labor senators agree that all groups need to work together in the spirit of cooperation to reform laws in the national interest.

1.43Minister Plibersek stated when she released the Nature Positive Plan that ‘getting to this point has required cooperation, it's required compromise, and it's required common sense’.[31] There needs to be more of that spirit as we complete this important work. If it takes a little longer for us to work through these issues together then it should be this committee’s view that it’s worth it to achieve lasting reform. This is much more extensive consultation than usually occurs—it’s worth it to get it right.

1.44It is disappointing that in the face of an extinction crisis politics prevailed over policy in this inquiry, with the Greens and Liberals teaming up to score political points—instead of working with Government to better protect nature.

Footnotes

[1]Department of Climate Change, Energy, the Environment and Water (DCCEEW), Australia State of the Environment 2021: Overview—Biodiversity, 2021 (accessed 22 May 2024).

[2]DCCEEW, Australia State of the Environment 2021: Land—Key findings, 2021 (accessed22May2024).

[3]DCCEEW, Australia State of the Environment 2021: Biodiversity—Pressures—Industry, 2021 (accessed22May 2024).

[4]DCCEEW, Australia State of the Environment 2021: Marine—Pressures—Population, 2021 (accessed22May 2024).

[5]DCCEEW, Australia State of the Environment 2021: Inland water—Environment—Natural water systems, 2021 (accessed 22 May 2024).

[6]Professor Graeme Samuel AC, Independent review of the EPBC Act,Final report, October 2020 (accessed 22 May 2024), p. iii.

[7]Professor Graeme Samuel AC, private capacity, Committee Hansard, 17 April 2024, p. 12.

[8]Mr Dean Knudson, Deputy Secretary, DCCEEW, Committee Hansard, 17 April 2024, p. 49.

[9]Senator the Hon Jonathon Duniam, Committee Hansard, 17 April 2024, p. 53.

[10]Mr Knudson, DCCEEW, Committee Hansard, 17 April 2024, p. 55.

[11]Dr Kate Andrews, Chief Executive Officer, NRM Regions Australia, Committee Hansard, 17April2024, p. 43.

[12]Dr Andrews, NRM Regions Australia, Committee Hansard, 17April2024, p. 43.

[13]Mr Brendan Sydes, National Biodiversity Policy Officer, Australian Conservation Foundation (ACF), Committee Hansard, 17 April 2024, p. 27.

[14]Mr Sydes, ACF, Committee Hansard, 17 April 2024, p. 28.

[15]See, for example, Ms Georgina Woods, Head of Research and Investigations, Lock the Gate Alliance, Committee Hansard, 17 April 2024, pp. 1-2; Mrs Alexandra Hill, National Director, Australian Youth Climate Coalition (AYCC), Committee Hansard, 17 April 2024, p. 2.

[16]Mr James Tregurtha, Division Head, Nature Positive Taskforce, DCCEEW, Committee Hansard, 17April 2024, p. 60.

[17]Mr Tregurtha, DCCEEW, Committee Hansard, 17 April 2024, p. 61.

[18]Mr Sydes, ACF, Committee Hansard, 17 April 2024, p. 24.

[19]Ms Woods, Lock the Gate Alliance, Committee Hansard, 17 April 2024, p. 2.

[20]Dr Andrews, NRM Regions Australia, Committee Hansard, 17 April 2024, p. 45.

[21]Mrs Alexia Wellbelove, Campaign Manager, Fisheries and Threatened Species, Australian Marine Conservation Society, Committee Hansard, 17 April 2024, p. 25.

[22]Mr Sam Szoke-Burke, Biodiversity Campaign and Policy Manager, Wilderness Society, CommitteeHansard, 17 April 2024, p. 30.

[23]Dr Kirsty Howey, Executive Director, Environment Centre Northern Territory (ECNT), CommitteeHansard, 17 April 2024, p. 10.

[24]The Hon Tanya Plibersek MP, Minister for the Environment and Water, ‘Environment and business to benefit from Nature Positive Plan’, Media release, 16 April 2024 (accessed 23 May 2024).

[25]The Hon Tanya Plibersek MP, ‘Environment and business to benefit from Nature Positive Plan’, Media release, 16 April 2024 (accessed 23 May 2024).

[26]Mr Sydes, ACT, Committee Hansard, 17 April 2024, p. 24.

[27]Ms Rachel Walmsley, Head of Policy and Law Reform, Environmental Defenders Office, CommitteeHansard, 17 April 2024, p. 21.

[28]Ms Danya Jacobs, Special Counsel, Ecosystems Lead, Environmental Justice Australia, CommitteeHansard, 17 April 2024, p. 21.

[29]Dr Howey, ECNT, Committee Hansard, 17 April 2024, p. 10.

[30]The Hon Tanya Plibersek MP, ‘National Press Club address’, Speech, 19 July 2022 (accessed23May2024).

[31]The Hon Tanya Plibersek MP, ‘Press conference on Labor’s Nature Positive Plan: better for the environment, better for business’, Transcript, 8 December 2022 (accessed 23 May 2024).