1.1
Towards the end of the previous Parliament, the Senate referred an inquiry into Australia's Faunal Extinction Crisis to the Environment and Communications References Committee (the committee). In April 2019, shortly before the 45th Parliament was prorogued, the committee handed down an extensive interim report which proposed that this inquiry be re-adopted in the 46th Parliament.
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Following the Federal Election, on 23 July 2019 the Senate agreed to the committee's recommendation that this inquiry be re-adopted for inquiry and report by 13 November 2019, with its terms of reference unchanged.
1.3
The inquiry's terms of reference are:
Australia's faunal extinction crisis, including:
a) the ongoing decline in the population and conservation status of Australia's nearly 500 threatened fauna species;
b) the wider ecological impact of faunal extinction;
c) the international and domestic obligations of the Commonwealth Government in conserving threatened fauna;
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 fauna 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 fauna assessment and adaptive management responses;
j) the adequacy of existing assessment processes for identifying threatened fauna conservation status;
k) the adequacy of existing compliance mechanisms for enforcing Commonwealth environment law; and
l) any related matters.
1.4
On 29 July 2019, the Senate granted the committee an extension of time to report to the last sitting day of the 2020 autumn sittings of the Senate. On 25 November 2019, the Senate granted a further extension of the inquiry until 7 September 2020.
Re-adoption of the inquiry in the 46th Parliament
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As noted, the inquiry was re-referred to the committee by the Senate on 23 July 2019. In doing this, the Senate resolved that the committee has the power to consider and use the records of the committee for the inquiry in the previous Parliament.
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This includes all 420 submissions received, the Hansard transcripts of evidence from five hearings, records of the two site visits, and other documents, papers and correspondence published as part of the inquiry. This evidence is publicly available on the committee's website.
1.7
Upon the re-referral of the inquiry, the committee also agreed to receive new submissions and additional material updates to submissions received in the 45th Parliament until 13 August 2019. At the time of writing, the committee has received 55 new or updated submissions, which are available on the committee's website.
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The committee has held two public hearings: in Sydney on 20 August 2019; and in Canberra on 23 August 2019. Hansard transcripts of these hearings are available on the committee's website.
The Interim Report of April 2019
1.9
The committee of the 45th Parliament tabled an Interim Report on 4 April 2019 (Interim Report). That report stated that it would be 'focussed on the effectiveness of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) as a legislative framework for managing the Australian environment, rather than its implementation'.
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Alongside an overview of the legislative and administrative framework provided by the EPBC Act, the Interim Report provided an overview of Australia's biodiversity, the nature and extent of the current rates of faunal extinction, and the key threats faced by our native fauna.
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The Interim Report noted the richness and importance of Australia's natural environment for our health and wellbeing, our economy, and our sense of national identity. It expressed great concern in the clear ongoing deterioration of the condition of our environment, our dramatically declining rates of biodiversity, and the inability of our environmental laws to arrest shrinking populations of many of our threatened or vulnerable faunal species.
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Evidence set out in Chapter 2 of the Interim Report comprehensively showed that Australia's trajectory of faunal extinction had increased dramatically since the EPBC Act was implemented in 2000. It highlighted some stark indicators of this decline, including that Australia was ranked second in the world for ongoing biodiversity loss, behind Indonesia, and responsible for around half of the total global extinctions over the last 200 years.
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The Interim Report also summarised the concerning conclusions of the most recent State of the Environment Report in 2016 (SOE Report) undertaken by the Department of the Environment and Energy (the department), as follows:
The latest [SoE report] commented that 'the status of biodiversity in Australia is generally considered to be poor and deteriorating'. It was noted that mammal declines in northern Australia have continued; and there has been a significant decline in some bird species. The SoE report commented that 'very limited information is available to assess the state and trends of reptiles, amphibians and invertebrates, except for a few
high-profile species'. In relation to mammal extinctions, the SoE report commented that the number of mammal extinctions 'is vastly greater than that recorded for any other country'.
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This concerning decline of Australia's biodiversity and poor environmental outcomes for faunal species has been noted internationally. For example, the Interim Report recognised recent Organisation for Economic Co-operation and Development (OECD) findings that our 'status of biodiversity is worsening', despite being a 'megadiverse' country. In this evaluation, the OECD suggested that some steps had been taken to improve conservation outcomes, but that:
…the pace and scale of progress have not been enough to improve the status and trends of ecosystems and species…Small initiatives and limited investment are insufficient to fully address a legacy of land clearing combined with growing pressure from population growth, expanding development, invasive species and climate change.
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The Interim Report set out a number of key drivers of faunal decline and extinction, including:
habitat loss, degradation and fragmentation;
invasive species including cats and foxes;
changes to fire management;
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The committee's Interim Report also noted the effects of declining threatened species, including the cascading effect of extinction on the health of ecosystems, and that species loss led to increasingly unstable and vulnerable habitats. It also outlined evidence that healthy and biodiverse ecosystems were an asset, not only for human health, but also for the economic health of many crucial industries. This includes the tourism sector, as well as the production of food, fibre and timber.
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Having set out evidence received about the extent of Australia's faunal extinction crisis and the value of maintaining a healthy and biodiverse natural environment, the Interim Report proceeded to consider the EPBC Act as Australia's key environmental legislation.
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Evidence argued that the provisions of the current EPBC Act failed to protect threatened faunal species, noting particularly:
the discretionary power of the Minister to make decisions under the Act;
the lack of mandatory timeframes and implementation for certain decisions;
the scope of the current Act, including potential new triggers for 'matters of national environmental significance (MNES) and the exemptions made for some industries;
the adequacy of key threatening processes and threat abatement plans made for threatened species, including the difficulties of addressing cumulative impacts;
a lack of mandatory monitoring of and compliance with conditions of approval of EPBC Act decisions; and
the available mechanisms for appeal and review of decisions made under the Act.
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Although the report noted many shortcomings in the Commonwealth's implementation of the EPBC Act, issues with inconsistent or insufficient funding for its implementation, and some problematic aspects of its interaction with state and territory frameworks, it left these issues for future reports of the committee.
Recent developments
1.20
This section briefly outlines some noteworthy developments that are relevant to the EPBC Act and its protections for threatened faunal species since the committee tabled the April 2019 Interim Report.
Public release of the Craik report
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In March 2018, the Government commenced an independent review of the interactions of the EPBC Act with the agriculture sector, led by Dr Wendy Craik AM (Craik Review). A report was provided to the Government on 28 September 2018, and publicly released in late June 2019.
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The introductory letter providing the report to the Hon Melissa Price MP, then-Minister for the Environment, summarised the review's findings as follows:
…farmers mostly interact with the EPBC Act in relation to the listing processes for nationally threatened species and ecological communities, one of the Matters of National Environmental Significance (MNES) under the Act, and in seeking approvals for new agricultural development which might have an impact on them. To the extent that farmers are aware of the Act, they perceive the Act to be complex and difficult to follow and therefore a barrier to development (and conservation of biodiversity). They also perceive the approach of the Department of the Environment and Energy in implementing the Act to be generally unhelpful, impractical and punitive, although some acknowledge the reduction in the Department’s resources to be a contributing factor.
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The report noted that the number of agricultural referrals of actions that may impact upon MNES protected by the EPBC Act has been 'relatively low at 2.7% of the total of 6002 referrals since the inception of the Act in 2000'.
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The Craik Review made 22 recommendations, which were aimed at 'reducing the burden of the regulatory obligations created by the EPBC Act on farmers without reducing environmental standards'.
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Recommendations 1 to 7 focussed on improving awareness and understanding of how agricultural activities interact with the EPBC Act, including: better collaboration between experts from the agricultural and environment/biodiversity sectors; and building capacity within the department, including in managing EPBC Act referrals from the agricultural sector.
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Recommendations 8 to 11 suggested amending the EPBC Act's provision for listing species or ecological communities for protection, including:
Requiring public consultation before making listing decisions;
Agricultural sector representation on the Threatened Species Scientific Committee (TSSC);
Building in a consideration of potential impacts of listing decisions on agricultural activities; and
undertaking 'risk-based ground-truthing [before formalising] conservation advices and recovery plans for listed species and ecological communities' with local practitioners and technical experts.
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Recommendations 12 to 16 considered improvements to the environmental impacts assessment process. These include: clarifying survey methods for assessing potential impacts of proposed activities; enabling easier accreditation of environmental professionals to carry out assessments; automating some simple EPBC decisions where formal EPBC Act approvals are not required; and harmonising Commonwealth and jurisdictional laws for offsets. A further recommendation was that the Minister should be allowed to revoke decisions already made where conditions are no longer relevant, have established a 'perverse outcome', are not reasonable, or could be undertaken in a 'more cost-effective manner'.
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Recommendations 17 to 22 suggested potential new strategic approaches and initiatives to enhance protection of MNES and reducing administrative requirements. This includes: improving the department's data management for information regarding referral decisions; reviewing EPBC Act environmental offsets and advice on their effectiveness; developing a common assessment method for offsets; and establishing a $1 billion 'National Biodiversity Conservation Trust' to incentivise farmers to 'protect and actively manage MNES outside of the legislative requirements'.
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The Government has stated that the Craik Review findings will inform the recently-commenced statutory review of the EPBC Act.
Statutory review of the EPBC Act
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On 29 October 2019, the Minister for the Environment, the Hon Sussan Ley MP, announced the commencement of the second statutory review of the EPBC Act, which must be undertaken every decade. This will be led by Professor Graeme Samuel AC, a former Chair of the Australian Competition and Consumer Commission (ACCC), who has led a number of reviews for Government. Professor Samuel is currently Professorial Fellow in Monash University's Business School and School of Public Health and Preventative Medicine.
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Other members of the expert panel working with Professor Samuel are:
Mr Bruce Martin, a Wik Ngathan man from the Western Cape York Peninsula with over 10 years' experience in the community development sector, and an inaugural member of the Prime Minister's Indigenous Advisory Council;
Dr Wendy Craik AM, an experienced policy adviser who has led a number of Government reviews, including the recent Independent Review into Interactions between the EPBC Act and the Agriculture Sector (2018). She is currently Chair of the Climate Change Authority;
Dr Erica Smyth AC, who has over four decades' experience in the minerals and petroleum industry, both as geologist and in corporate affairs and community consultation. She is also currently the Chair of the Advisory Board for the National Offshore Petroleum Safety and Environmental Management Authority; and
Professor Andrew Macintosh, an environmental law and policy expert at the ANU College of Law. He is also Chair of the federal Emissions Reduction Assurance Committee.
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In announcing the review, the Minister commented that it would 'tackle green tape and deliver greater certainty to business groups, farmers and environmental organisations':
This review is not about ideology. The one thing all sides of the environmental debate concede is that the complexities of the Act are leading to unnecessary delays in reaching decisions and to an increased focus on process rather than outcomes.
Delays in EPBC decisions are estimated to cost the economy around $300 million a year and frustrate both business and environmental groups.
The Act has been a world benchmark in environmental protection but needs to be adapted to changes in the environment and economy.
I’ve asked Professor Samuel to look at how we can improve efficiency and make clear and simple decisions that deliver strong, clear and focussed environmental protection.
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In announcing the review, the Minister invited 'all Australians' to participate. The Review's website states it will include 'extensive consultation with interested stakeholders including industry, Indigenous Australians and environmental groups'. The Review has also called for submissions, has opened a mailing list for interested parties, and also suggested it would allow for 'general comments' about the EPBC Act to be made 'at any time'.
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The indicative timeline for the review states that there will be a discussion paper released in November 2019, a period of 'Exploring reform options' in February 2020, before a draft report in June 2020. The review is scheduled to hand its final report to Government within 12 months, by October 2020.
The committee's general approach and future work
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Given that it is likely that the EPBC Act will remain the principal environmental legislation for Australia in the near term, future work of the committee may look to make recommendations about how the Act can be reformed, implemented more effectively, and better resourced to protect faunal species.
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To this end, the committee has sought to extend this inquiry to September 2020, to actively track the statutory review of the EPBC Act.
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The committee recognises that the Interim Report handed down by the committee in the 45th Parliament was intentionally narrowly focussed on the EPBC Act as a legislative framework. In the same manner, this report deliberately covers the challenges facing the threatened ecological communities of protected native grasslands.
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The committee assures stakeholders that it intends to hold further hearings on other important and related topics in 2020, will continue to consider submissions from stakeholders, and is committed to tabling a final report at the conclusion of its deliberations.
Scope and structure of this report
1.39
This report focusses on evidence considered by the committee relating to the threats faced by faunal species dependent on native grasslands. This provides a case study showing areas in which the EPBC Act and Commonwealth decision making, assessment and compliance processes could be improved, for better outcomes for threatened faunal species.
1.40
In doing so, it considers evidence received about the activities of the Hon Josh Frydenberg MP, formerly the Minister for the Environment, and the Hon Angus Taylor MP, the Member for Hume who is also currently Minister for Energy and Emissions Reduction. This evidence relates to an ongoing departmental compliance activity that commenced in 2016, investigating the clearing of a critically endangered ecological community on a property near Delegate, in the southern highlands of NSW, allegedly in contravention of the EPBC Act. The property is owned by Jam Land Pty Ltd, a company in which Minister Taylor has an indirect financial interest, and which is part directly owned by his brother and long-time business partner, Mr Richard Taylor.
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In concentrating on grasslands-related issues, this report is not intended to completely reflect the more broad evidence received by the committee in the 45th and 46th Parliaments on faunal extinction more generally, or legislative and implementation issues with the EPBC Act.
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The report consists of three chapters:
This chapter provides a background to the inquiry so far, its administration, and an outline of the scope and structure of this report;
Chapter 2 provides an overview of the threatened grassland ecological communities of Australia and the challenges they face. In particular, it considers the the Natural Temperate Grasslands of South Eastern Highlands (NTG-SEH) as an example. This chapter also considers the interaction of Australia's environmental protection framework with the agricultural sector.
Chapter 3 considers the conduct of Ministers regarding a potential breach of EPBC Act conditions on property containing EPBC Act protected grasslands.
Acknowledgement
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The committee would like to acknowledge all the individuals and organisations that have informed the committee's work in this inquiry.