Chapter 1 - Introduction

Chapter 1Introduction

1.1On 27 June 2024, the Senate referred the Nature Positive (Environment Protection Australia) Bill 2024 (the EPA bill); the Nature Positive (Environment Information Australia) Bill 2024 (the EIA bill); and the Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024 (theAmendmentbill) (collectively the bills) to the Environment and Communications Legislation Committee (the committee) for inquiry and report by 8 August 2024.[1]

1.2On 12 August 2024, the Senate granted an extension of time to report until 19August2024.[2] On 19 August 2024, a further extension was granted to 9September 2024.[3]

1.3This current package of bills represents the ‘second stage’ of the Australian Government's Nature Positive law reforms. It proposes to establish the governance arrangements for implementing the broader Nature Positive reforms by:

creating a new statutory agency known as Environment Protection Australia (EPA) to be led by a Chief Executive Officer (CEO);

establishing a statutory Senior Executive Service (SES) position of Head of Environment Information Australia (HEIA) within the Department of Climate Change, Energy, the Environment and Water (DCCEEW); and

amending nine environmental laws to provide the CEO with a range of powers and functions under those laws.

1.4These environmental laws include proposed amendments to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to increase criminal and civil penalties, introduce new compliance and enforcement powers, and amend 'stop the clock' provisions. The key proposed amendments to these environmental laws are outlined later in Chapter 2.

1.5The Explanatory Memorandum (EM) to the EPA bill outlines that these environmental law reforms will address the causes of environmental decline by creating a Nature Positive Australia:

The intention is to create a Nature Positive Australia in which nature is being repaired and is regenerating rather than continuing to decline.[2]

Scope and structure of the report

1.6This report comprises five chapters:

Chapter 1 provides background to the bills, including their purpose, and the conduct of the inquiry. It provides contextual information relevant to these bills, including background to the Nature Positive reforms. The chapter also discusses the general feedback received on the bills including views about the broader package of Nature Positive reforms.

Chapter 2 outlines the key provisions of the bills.

Chapter 3 discusses submitter views on the establishment of the EPA and related amendments in the Amendment bill.

Chapter 4 outlines the views expressed about Environment Information Australia (EIA) and the HEIA.

Chapter 5 provides an overview of other key issues raised during the inquiry. These include the new compliance and enforcement powers, proposed amendments to the ‘stop the clock’ provisions as well as suggested amendments with respect to powers to make National Environmental Standards.

1.7Chapters 3 to 5 of this report conclude with the committee’s view and recommendations.

Purpose of the bills

1.8In her second reading speech for the EPA bill, the Minister for the Environment and Water, the Hon. Tanya Plibersek MP (the Minister), outlined:

We're now moving quickly to establish an environment protection agency and Environment Information Australia. These are crucial elements of our plans to create a nature positive Australia, and we want to get them in place as soon as possible—so they can begin their important work…

Combined with significant additional funding, this stage of the reforms will deliver stronger environmental powers, faster environmental approvals, more environment information, and greater transparency. These are big steps forward, for the environment and for business, and it's all new under this government.[4]

1.9According to the EPA bill EM, the establishment of 'Australia's first national, independent environmental protection agency with strong new powers and penalties' would 'better protect and restore Australia's unique environment'.[5]

1.10Similarly, according to the EIA bill EM, the creation of a new statutory position of the HEIA would 'improve the availability and accessibility of high quality, national, environmental data and information, and ensure that there is independent reporting and accountability for the state of the environment and our effectiveness in protecting and restoring it'.[6]

1.11Proposed amendments to the EPBC Act and eight other Acts would support the establishment of these new statutory bodies, confer compliance powers on the EPA, introduce new protection and audit powers, and provide for the Minister and Secretary to delegate powers to the CEO of the EPA.[7]

Background to the Nature Positive reforms

The EPBC Act and its second independent review

1.12The EPBC Act passed the Australian Parliament in 1999 and commenced inJuly2000. It aims to protect and conserve Australia's environment, biodiversity and heritage, and promote ecologically sustainable development through the conservation and sustainable use of natural resources.[8]

1.13The EPBC Act requires an independent review at least every ten years.[9] The second independent review of the EPBC Act, led by Professor Graeme Samuel (the Samuel Review), commenced in October 2019. A final report providing 38recommendations for reform was provided to the Minister for the Environment in October 2020 and publicly released in January 2021.[10]

1.14The Samuel Review's overall assessment of Australia's primary environmental legislation found that the EPBC Act and its operation requires fundamental reform:

Australia’s natural environment and iconic places are in an overall state of decline and are under increasing threat. They are not sufficiently resilient to withstand current, emerging or future threats, including climate change.

The EPBC Act is out dated and requires fundamental reform. It 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.[11]

1.15While the final report recommended immediate implementation of some proposed reforms, including ‘new, legally enforceable National Environmental Standards’, it also outlined the need for a staged pathway for change:

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.[12]

1.16The relevant findings from the Samuel Review regarding stronger independent compliance and enforcement and improved data, information and systems are explored in Chapter 3 and Chapter 4 respectively.

The Nature Positive Plan—the Australian Government's response to the SamuelReview

1.17The Australian Government released its response to the Samuel Review in December 2022. The response, known as the Nature Positive Plan: better for the environment, better for business (Nature Positive Plan), addresses the recommendations from the Samuel Review and considers the findings from the State of the Environment 2021 report.

1.18In announcing the Australian Government’s response, the Minister outlined that reforms to the EPBC Act would build on three basic principles of ‘clear national standards of environmental protection, improving and speeding up decisions, and building trust and integrity’.[13]

1.19These key reforms include:

Better environment and heritage outcomes: to be delivered through new National Environmental Standards including for Matters of National Environmental Significance (MNES), improved conservation planning, partnerships with First Nations, and improved coverage of climate, water and nuclear actions;[14]

Better, faster decision-making and clear priorities: through streamlining of assessment and approval processes, accreditation of state and territory and other agency approvals based on National Environmental Standards, regional planning, new environmental offset arrangements, a nature repair market, and streamlining of assessment and approval processes;[15] and

Improved accountability and trust: through the establishment of an independent Environment Protection Agency, improved collection and dissemination of environmental data, introduction of environmental economic accounts, and transformed management arrangements for Commonwealth National Parks.[16]

A staged approach to implementing the Nature Positive reforms

1.20On 16 April 2024, the Minister announced progress on the package of reforms to the EPBC Act. The first stage of completed reform included the passage of legislation establishing the Nature Repair Market creating a framework for a 'legislated, national, voluntary biodiversity market'[17] as well as expanding the water trigger in the EPBC Act to apply to unconventional gas projects.[18]

1.21The second stage of the Australian Government's Nature Positive Plan, which is currently before the Parliament, comprises:

Australia's first national EPA with strong new powers and penalties to better protect nature;

more accountability and transparency with EIA, 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;

faster environmental approval decisions on projects, including a $100million investment to speed up environmental approval decisions, including for renewables and critical minerals projects.[19]

1.22The third stage of the reforms is expected to 'complete the environmental law reforms' outlined in the Nature Positive Plan. It is expected to canvass broader reform elements including:

the establishment of National Environmental Standards including a standard for MNES;

the assessment and approvals system under the EPBC Act, including the scope of discretion in EPA decision-making;

a standard for First Nations engagement and participation in decisionmaking;

restoration actions and restoration contributions reform;

the application of National Environmental Standards to regional forest agreements;

exemptions (prior authorisation and continuing use); and

climate change, including the interaction between environment and climate laws.[20]

1.23While no specific details have been provided on the timeframe for the introduction of the third stage of legislative reforms, the Australian Government has indicated its commitment to further consultation 'to make sure the detailed policy settings are right' prior to releasing the draft legislation for public consultation.[21]

1.24The following section explores submitters’ views about the intent of these bills, as well as perspectives about the broader package of Nature Positive reforms, including timing, the staged approach to implementation and consultation processes.

Support for the intent of the package of bills

1.25Submissions received from many environmental organisations, community groups, scientific bodies and legal experts supported measures that would strengthen compliance and enforcement of environmental laws and improve environmental data and information to enable greater transparency in decisionmaking.

1.26For example, the Environmental Defenders Office submitted:

…establishing an effective, independent and fit-for-purpose federal EPA [Environmental Protection Agency] would be a significant reform that would see the country's first national environmental regulator established; and EIA [Environment Information Australia] will be an important and useful new institution that will have a critical role in measuring our progress towards 'nature positive'.[22]

1.27Similar views were expressed by WWF-Australia, Greenpeace Australia Pacific, Humane Society International, Australian Land Conservation Alliance and the Wentworth Group of Concerned Scientists who echoed support for the establishment of a strong EPA and EIA.[23]

1.28The Australian Conservation Foundation said:

We want the committee to be very clear that we want the EPA [Environment Protection Australia] formed in this term with some amendments we're suggesting, which would set it up for success. The reason is the enforcement and compliance of the current act, as woeful as it is, would help protect nature now.[24]

1.29Business and industry groups also largely welcomed measures that would improve access to environmental data and information and inform better environmental decision-making.

1.30Various specific concerns that were raised throughout the inquiry are detailed in later sections of this report.

1.31Despite some of these concerns, various submitters supported the passage of these bills as an incremental and important step towards implementing the Nature Positive reforms.

1.32For example, the Australian Conservation and Biodiversity Foundation outlined:

One of the things the ACBF [Australian Conservation and Biodiversity Foundation] hasn't explicitly said today is whether or not we support the existing bills. We do. They're not perfect, but I'm all for the EIA [Environment Information Australia] because, as the Samuel review said, the very basis of policy-making has to be some sort of construct of there being a single source of truth, and there has never been a single source of truth in terms of environmental policy in this country…

Some of these reforms, including the ones in front of us, even if they are not everything that we wanted, will help.[25]

1.33In a similar vein, Professor Graeme Samuel AC expressed his support for these bills:

In my view, the three bills currently before parliament are very, very important…It's terribly important that we have strong enforcement and compliance. You'll see there's a whole chapter in my report about the failure of compliance and enforcement, both at Commonwealth and at state and territory level. So the recommendation was that there be a complete change of culture and approach at Commonwealth level and then, through the accreditation process, that would flow through to states and territories. The EPA will do that in a significant way…[26]

1.34Professor Samuel further set out his views on the operation of the EIA:

The EIA [Environment Information Australia] is another fundamental element of the recommendations in the review. It enables data to be accumulated and put into a safe repository, and data is terribly important for regulators to be able to assess whether or not proposals and proponents are telling the truth and providing the right information and, indeed, for proponents to be able to access data so as to know what they should be complying with.[27]

Calls for broader and immediate reform of the EPBC Act

1.35Many submitters contended that while the introduction of new statutory authorities such as the EPA and EIA are important steps forward, they hold significant concerns about the EPA being left to administer largely unchanged environmental legislation, which, as noted above, the Samuel Review acknowledged is ‘out dated and requires fundamental reform’.[28]

1.36For example, the Australian Conservation Foundation, while acknowledging the establishment of the EPA and the EIA as 'important institutional reforms' outlined that 'these reforms will not of themselves fix our broken national system of nature protection, but they are critical elements of the reform package'.[29]

1.37Similarly, the Environmental Defenders Office argued that in the absence of broad reforms, ‘these newly established institutions will only be responsible for enforcement and monitoring of our environment in line with fundamentally broken nature laws’.[30]

1.38The Australian Land Conservation Alliance provided evidence outlining:

The creation of both the EPA [Environment Protection Australia] and the EIA [Environment Information Australia] is an important part of this holistic reform. Without a definitive commitment to the next stage of reforms, though, the EPA and the EIA will only be supporting the delivery of old laws that have been proving ineffective. To that end, environmental standards that were a centrepiece of the Samuel review are central to that broader reform.[31]

1.39Various submitters recommended a series of additional amendments to the EPBC Act and second stage package of bills, and for some to be introduced immediately. These included calls for:

immediate amendments to the EPBC Act that create the legislative power for the Minister to make National Environmental Standards, including the power to make, review and amend standards as disallowable legislative instruments;[32]

changes to enable the EPA to undertake an independent assessment of the effectiveness of remaining Regional Forest Agreements in the protection of MNES;[33]

the introduction of a ‘climate trigger’ by creating a new MNES to explicitly deal with new projects which have a significant impact on the climate;[34]

linking reforms including the Safeguard Mechanism and the Climate Change Act 2022 within the EPBC Act, so that actions cannot be approved if they are likely to breach emissions targets and thresholds;[35]

strengthening existing provisions to ensure that ‘unacceptable impacts’ are defined in the EPBC Act and to prevent the approval of projects that will have or likely to have unacceptable impacts on relevant MNES;[36]

restricting the use of biodiversity offsets, including new provisions that impose restrictions on any conditions that relate to environmental offsets;[37]

explicitly requiring the CEO of the EPA to establish and maintain a register of offsets and post-approval documents;[38] and

removing exemptions to ensure all native forest logging is assessed for its harm to threatened species.[39]

1.40Submitters’ views relating to the introduction of a new standards making power for National Environmental Standards as part of these bills is set out in Chapter5.

Views on the timing and staged approach to the Nature Positive reforms

1.41Submitters also provided wide-ranging views on the implementation of the Nature Positive reforms, including the staged approach, timing and the consultation processes to date.

Timing and staging of reforms

1.42Several submitters raised concerns about delays in implementing the full Nature Positive reform agenda and questioned whether a staged approach was effective in delivering the environmental reforms needed.

1.43Broadly, environmental and conservation groups argued that delaying and splitting the full reform package into different stages undermines the Australian Government’s commitment to deliver comprehensive national environmental law reform.

1.44For example, Doctors for the Environment Australia emphasised that the staged approach to reform ‘fails to respond to the seriousness of the situation’, urging the Australian Government to respond with ‘much greater rapidity’.[40]

1.45Similarly, the Wentworth Group of Concerned Scientists submitted that the Australian Government should be immediately focused on reforms that directly improve outcomes for MNES and address the biodiversity and extinction crises, adding that these reforms should be ‘progressed together with the EPA and EIA bills as part of tranche 2 of the reforms’.[41]

1.46Several submitters also expressed concern over the lack of certainty regarding the timeline for implementing the full suite of EPBC Act reforms, urging the Australian Government to announce a timeline for the introduction of the third and final stage of the reforms.[42]

1.47The Smart Energy Council, for example, highlighted that the absence of a clear timeline could delay benefits for the renewables sector, an outcome that would be ‘inconsistent with Australia’s renewable and emission targets.’[43]

1.48Moreover, there was a lack of confidence among many submitters that any Stage3 reforms would be operational until at least 2026, adding to concerns over delays to environmental protection across the country.[44]

1.49The Australian Climate and Biodiversity Foundation highlighted the lack of momentum since the finalisation of the Samuel Review:

From my calculation, there is almost no way I can imagine stage 3…of the reforms either getting into this place [Parliament] or getting out the other side of this place this side of a federal election. So, let's just add another 12, 18 or 24 months to when we might see the substantive reforms that Professor Samuel and stakeholders were able to land on in the independent review. Why is that relevant? It's because…by the time we get to that point we'll be more than halfway through the time period specified under the existing EPBC [Environment Protection and Biodiversity Conservation Act] to commence the next 10-year review of the effectiveness of the national environmental laws. So, our reform moment is disappearing before our very eyes.[45]

1.50Some submitters also emphasised that a staged approach to the full reform agenda has allowed climate harms to remain unchecked across many industries. The Australia Conservation Foundation, for instance, pointed to a ‘climate blind spot’ in Australia’s national environmental laws, which will continue to harm the environment in the absence of a comprehensive approach to reform.[46]

1.51Some inquiry participants, however, expressed support for the staged approach to the reforms given its size and complexity. For example, the Clean Energy Council said:

I think that the staging of these reforms makes sense. These are big reforms; it is important to get them right. Inevitably, they will happen in a sequential way. The fact that these bills are really just creating the EPA [Environment Protection Australia] but recognising that there is still a lot more detail to come seems like a reasonable process.[47]

1.52At the same time, industry organisations highlighted the benefits of a staged approach to the reforms, supporting consultation and practical testing of reforms in order to avoid unintended consequences. The Minerals Council of Australia, for instance, argued that the scale of change outlined in the Nature Positive Plan warrants ‘thorough and considered consultation and road-testing of the practical workability of the proposed reforms.’[48]

1.53Similarly, the Urban Development Institute of Australia contended:

We basically support the process the government is undertaking, and we also support there being a staged approach, because what we want is for these things to be right. Quick is not great if quick is wrong.[49]

1.54Likewise, the Business Council of Australia agreed with the Australian Government’s decision to delay the third stage of reforms until further consultation has been undertaken, arguing that this reflected a commitment to taking the time to work with stakeholders to get these complex reforms right.[50]

1.55The National Farmers’ Federation similarly argued for time to ‘road-test’ the legislation, ensure it is workable and avoid unintended consequences:

But, at the very least, we should have enough time to actually understand what the implications are, and I think that's what we're all seeking, which is recognition and acceptance of the gravity of this legislation. But let's give ourselves enough time and chance to make sure we understand what the impacts are.[51]

1.56In a similar vein, the Western Australian Government expressed support for a staged approach to the reforms, emphasising ‘it is essential that the details are fully developed and tested before they are finalised.’[52]

Approach to consultation

1.57The Australian Government’s consultation process with stakeholders on the Nature Positive reforms was also a key area of interest during the inquiry.

1.58Stakeholders from the mining industry uniformly called for a consultation process that allows affected industries to test key reform elements and report back on their workability. For example, the Chamber of Minerals and Energy of Western Australia argued that meaningful consultation must consider how reforms across all stages can be practically implemented.[53]

1.59In a similar vein, Whitehaven Coal stressed that, given the scale and complexity of the proposed reforms, it is important that these reforms are not rushed, and consultation is carried out transparently ‘to avoid unintended consequences.’[54]

1.60Concerns were also raised about the perceived lack of targeted consultation with key industries affected by the Stage 2 reforms. Refrigerants Australia, a peak organisation representing the supply chain of refrigerants, submitted that there was no consultation with its industry regarding the proposed regulatory changes introduced by Stage 2.

1.61This view was echoed by the Association of Mining and Exploration Companies, which argued that industry stakeholders across the mining sector have expressed frustration with a lack of consultation regarding the structure and purpose of the proposed EPA. The Association of Mining and Exploration Companies further noted:

…that consultation with key stakeholders should be continuous and should start as early as possible. It should continue through all stages of the policy development cycle, including when detailed design features are being finalised.[55]

1.62Moreover, volunteer community groups such as the Tasmanian Climate Collective contended that the current consultation process places an unfair burden on community groups to provide expert, evidence-based advice and information. Instead, the Tasmanian Climate Collective called for the Australian Government to require expert input from independent scientific institutions into its consultation practices.[56]

1.63Further, submitters contended that an ‘opaque consultation process’ has made informed decision-making a challenge for affected stakeholders. Mining company Fortescue observed that:

During more than 18 months of consultation with the Australian Government on its environmental reforms, key details of the new legislation have not been released, and the elements that the Government has discussed have been issued in a piecemeal manner. This has resulted in Fortescue and other industry members being unable to understand the full implications of the reforms for our business, and whether our future projects, decarbonisation efforts and expansions will be approvable under the new legislation.[57]

1.64On the other hand, various submitters acknowledged the Australian Government’s commitment to ongoing and widespread consultation. For example, in its feedback to the government’s consultation session on environmental law reform, the Clean Energy Investor Group (CEIG) expressed support for the Government’s approach to consultation, adding that:

CEIG supports this sequential approach of presenting the draft documents first, followed by the release of the associated draft legislation in the subsequent session. CEIG also welcomes the ability for stakeholders to be consulted via the lockup process, ahead of broader and more formal public consultation.[58]

1.65The National Farmers’ Federation highlighted the constructive engagement with government:

I think most of us from industry association land have been engaged in the consultation process for some time in a constructive and positive way. There are some things that we have some huge concerns about, but we understand that this legislation needs to be progressed.[59]

1.66The Places You Love Alliance, a collective of more than 70 environmental organisations across Australia, noted its opportunity to engage extensively with the Australian Government on the Nature Positive reforms.[60]

1.67Similarly, renewable energy company Iberdrola Australia emphasised that the process of finalising National Environmental Standards ‘requires further detailed consultation with key stakeholders…on a timeline prior to the next election’.[61]

1.68In relation to National Environmental Standards, the Australian Climate and Biodiversity Foundation outlined that since the Samuel Review:

There has been an enormous amount of work done on the standards. Almost all the people that have appeared before you over the last 12 hours…have been involved in those processes, whether it was during the previous term of government or the process in the early part of last year, which involved stakeholders from all the industry groups, experts, conservation groups, everyone under the sun. Then there were the infamous closed consultation sessions that rolled out through late 2023 and into early 2024. There have been a lot of conversations and there have been a lot of words looked at.[62]

1.69DCCEEW provided evidence about the extent of engagement with stakeholders on the reform package, outlining the policy consistency between the substance of the bills and the consultation to date:

The legislation that we put forward is utterly consistent with what we have consulted on with the groups. There is not a single individual who's been involved in our consultations who has not seen the absolute essence of what was proposed for the EPA [Environment Protection Australia] and what was proposed for EIA [Environment Information Australia]. What has changed is that we extracted those and proceeded with those as stage 2 of the reforms back in April.[63]

1.70DCCEEW also outlined its approach to the Stage 3 consultations and the consideration of stakeholder feedback noting:

We've heard…a raft of views, often diametrically opposed, on what is, in effect, almost all about stage 3 elements of the reforms. We are now compiling that with revised positions on which we will go out for consultation. That's what that release in April [2024] talked about with those six items. That is where we're at right now. It's finishing off what those revised propositions are for policy settings. Then we will go out and do consultation.[64]

1.71Several submitters and participants to the inquiry expressed a commitment to work with the Government and engage constructively with the ongoing consultation process for the Stage 3 of reforms.[65]

Complexity of reforms

1.72While there were calls for immediate reform of the EPBC Act, submitters also acknowledged the challenges and complexities associated with reforming the EPBC Act.

1.73Professor Graeme Samuel AC, reflecting on the third stage of the Nature Positive reforms, emphasised:

My understanding—without wanting to betray any confidences in terms of comments that might have been made to me by the minister or the minister's office—is that the minister has publicly said that what is left to be done, stage 3, is very complex. Believe me, I know it's complex. I tried to do some of the drafting myself, and I gave up. I just thought it was too hard. It's a thousand pages of complex legislation.[66]

1.74The Business Council of Australia highlighted that due to the complexity and need for comprehensive reform, a staged approach to the reforms is appropriate.[67]

1.75Similarly, the Western Australian Government ‘welcomed the Australian Government’s announcement that it will split the Nature Positive Plan reform into three stages’, recognising its legislative complexity and potential consequences of getting the reform wrong.[68]

1.76These concerns were also reflected by industry, for example Whitehaven Coal, highlighting that the ‘scale and potential impact of environmental reforms is both complex and significant’.[69]

1.77The remainder of this chapter outlines further details on these bills and the conduct of the inquiry.

Financial impact statement

1.78As part of the 2023-24 Budget, the Government provided $121.0 million and $51.5 million over four years, from 2023-24 to 2026-27, to establish the EPA and EIA respectively. This includes $4.5 million per annum in ongoing funding to the EIA.[70] As outlined earlier, the Government also announced $100 million to speed up environmental approval decisions.[71]

1.79Further costs of implementation, including partial cost recovery, are subject to future decisions of the Australian Government.

Human rights compatibility

1.80The respective EMs to the EPA bill, EIA bill and Amendment bill outline that these bills are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.[72] Where the bills limit human rights, those limitations are stated to be ‘reasonable, necessary and proportionate to achieve the legitimate aims’ of that bill.[73]

1.81At the time of writing, the Parliamentary Joint Committee on Human Rights made no comment on the bills.

Scrutiny of Bills Committee consideration

1.82The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills committee) reviewed the bills noting that various provisions may raise scrutiny concerns.[74]

1.83These include concerns about:

certain instruments made under the EPA bill, specifically those that provide that the CEO of EPA may establish an advisory group are not legislative instruments yet ‘this is a vital part of this legislative scheme’;[75]

the lack of clarity around what circumstances would necessitate the HEIA to rely on the immunity from civil liability provided in the EIA bill;[76] and

whether independent review of the Minister’s decision to not revoke an Environment Protection Order under the Amendment Bill can be made available.[77]

1.84At the time of writing, the response from the Minister to the Scrutiny of Bills committee has not been published.

Conduct of the inquiry

1.85In accordance with its usual practice, the committee advertised the inquiry on its website, and wrote to relevant organisations inviting submissions by 15July2024.

1.86The committee published 209 submissions from organisations and individuals, which are listed in Appendix 1 and available on the committee's website. In addition, the committee received around 180 submissions and over 3670 proforma emails from individuals received through various campaigns. A representative sample of these are published on the committee’s website as additional information to this inquiry.

1.87A public hearing was held on 26 July 2024 in Canberra. A list of witnesses who gave evidence at the hearing is available in Appendix 2.

1.88In considering the evidence raised about these bills, the committee also took into account the evidence received as part of the Senate Environment and Communication References Committee's inquiry into Australia's extinction crisis.

1.89This includes the views expressed at the 17 April 2024 public hearing in Canberra that examined, among other things, the progress of the Australian Government's reforms to the EPBC Act and the ongoing consultation process on draft legislation.

Acknowledgements

1.90The committee thanks the organisations and individuals that made written submissions and appeared at the public hearing.

Footnotes

[1]Journals of the Senate, No. 115, 27 June 2024, pp. 3530−3531.

[2]Journals of the Senate, No. 120, 12 August 2024, p. 3691.

[3]Journals of the Senate, No. 124, 19 August 2024, p. 3766.

[2]Explanatory Memorandum, Nature Positive (Environment Protection Australia) Bill 2024, p. 2.

[4]The Hon Tanya Plibersek MP, Minister for the Environment and Water, House of Representatives Hansard, 29 May 2024, p. 13.

[5]Nature Positive (Environment Protection Australia) Bill 2024 (EIA Bill), Explanatory Memorandum, p. 2.

[6]EIA bill, Explanatory Memorandum, p. 2.

[7]Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024 (Amendment bill), Explanatory Memorandum, pp. 2−3.

[8]Department of Climate Change, Energy, the Environment and Water (DCCEEW), About the EPBC Act (accessed 23 July 2024).

[9]Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), s.522A.

[10]DCCEEW, SecondIndependent Review of the EPBC Act (accessed 8 July 2024).

[11]Professor Graeme Samuel AC, Independent Review of the EPBC Act – Final Report, October 2020, p. ii.

[12]Professor Graeme Samuel AC, Independent Review of the EPBC Act – Final Report, October 2020, p. iii.

[13]The Hon Tanya Plibersek MP, Minister for the Environment and Water, ‘Labor’s Nature Positive Plan: better for the environment, better for business’, Media Release, 8 December 2022 (accessed26June 2024).

[14]DCCEEW, Nature Positive Plan, December 2022, pp. 1–2.

[15]DCCEEW, Nature Positive Plan, pp. 3–4.

[16]DCCEEW, Nature Positive Plan, pp. 4–5.

[17]DCCEEW, Nature Repair Market (accessed 2 July 2024).

[18]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 (accessed26June2024).

[19]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 (accessed26June2024).

[22]Environmental Defenders Office, Submission 25, p. 5.

[23]See, for example, WWF-Australia, Submission 8, p. 2; Greenpeace Australia Pacific, Submission 22, p.1; Humane Society International, Submission 32, p. 5; Dr Judy Gunn, Chief Executive Officer, Australian Land Conservation Alliance, Proof Committee Hansard, 26 July 2024, p. 61; Ms Debbie Medaris, Acting Director, Wentworth Group of Concerned Scientists, Proof Committee Hansard, 26July 2024, p. 2.

[24]Ms Kelly O’Shanassy, Chief Executive Officer, Australian Conservation Foundation, Proof Committee Hansard, 26 July 2024, p. 25.

[25]Mr Lyndon Schneiders, Executive Director, Australian Climate and Biodiversity Foundation, ProofCommittee Hansard, 26 July 2024, p. 65.

[26]Professor Graeme Samuel AC, Private capacity, Proof Committee Hansard, 26 July 2024, p. 69.

[27]Professor Graeme Samuel AC, Private capacity, Proof Committee Hansard, 26 July 2024, p. 69.

[28]Professor Graeme Samuel AC, Independent Review of the EPBC Act – Final Report, October 2020, p. ii.

[29]Australian Conservation Foundation, Submission 27, p 3.

[30]Environmental Defenders Office, Submission 25, p. 11.

[31]Dr Gunn, Australian Land Conservation Alliance, ProofCommitteeHansard, 26 July 2024, p. 61.

[32]See, for example, Australian Climate and Biodiversity Foundation, Submission 47, p. 2; Environmental Defenders Office, Submission 25, p. 24.

[33]See, for example, Australian Climate and Biodiversity Foundation, Submission 47, p. 2.

[34]See, for example, Environmental Defenders Office, Submission 25, p. 25; Peoples Climate Assembly, Submission 43, p. 2; Biodiversity Council, Submission 49, p. 11; Australian Marine Conservation Society, Submission 31, p. 3.

[35]See, for example, Environmental Defenders Office, Submission 25, p. 25; Doctors for the Environment Australia, Submission 56, p. 2; Environmental Justice Australia, Submission 51, p. 14.

[36]See, for example, Environmental Defenders Office, Submission 25, p. 25; Environmental Justice Australia, Submission 51, p. 15; Wentworth Group of Concerned Scientists, Submission 55, pp.10−11.

[37]See, for example, Environmental Defenders Office, Submission 25, p. 27; Conservation Council of Western Australia, Submission 100, p. 5.

[38]See, for example, Environmental Defenders Office, Submission 25, p. 27.

[39]See, for example, Environmental Justice Australia, Submission 51, p. 12; Conservation Council of Western Australia, Submission 100, p. 5.

[40]Doctors for the Environment Australia, Submission 56, p. 4.

[41]Wentworth Group of Concerned Scientists, Submission 55, p. 3.

[42]See, for example, Australian Marine Conservation Society, Submission 31, pp. 3-4; BirdLife Australia, Submission 57, p. 1; The Wilderness Society, Submission 70, p. 12.

[43]Smart Energy Council, Submission 11, p. 2.

[44]See, for example, submissions from the Wilderness Society, Submission 70, pp. 4−5; AustralianClimate and Biodiversity Foundation, Submission 47, p. 4.

[45]Mr Schneiders, Australian Climate and Biodiversity Foundation, ProofCommittee Hansard,26July2024, pp. 61−62.

[46]Australian Conservation Foundation, Submission 27, p. 24.

[47]Dr Nicholas Aberle, Policy Director, Energy Generation and Storage, Clean Energy Council, Proof Committee Hansard, 26 July 2024, p. 18.

[48]Minerals Council of Australia, Submission 18, p. 2.

[49]Mr Andrew Mihno, Head of Policy and Government Relations, Urban Development Institute of Australia, Proof Committee Hansard, 26 July 2024 p. 43.

[50]Business Council of Australia, Submission 24, p. 3.

[51]Mr Tony Mahar, Chief Executive Officer, National Farmers’ Federation, Proof Committee Hansard, 26July 2024, p. 58.

[52]Western Australian Government, Submission 28, p. 1.

[53]Chamber of Minerals and Energy of Western Australia, Submission 65, p. 1.

[54]Whitehaven Coal, Submission 64, p. 1.

[55]Association of Mining and Exploration Companies, Submission 9, p. 3.

[56]Tasmanian Climate Collective, Submission 81, p. 1.

[57]Fortescue, Submission 23, p. 1.

[58]Clean Energy Investor Group, Feedback to Minister Plibersek from December 2023 Consultation on Environmental Law Reforms, 28 March 2024 (accessed 19 July 2024).

[59]Mr Mahar, National Farmers; Federation, Proof Committee Hansard, 26July2024, p. 58.

[60]Places You Love Alliance, Submission 11, p. 2.

[61]Iberdrola Australia, Submission 83, p. 3.

[62]Mr Schneiders, Australian Climate and Biodiversity Foundation, ProofCommittee Hansard, 26July2024, p.63.

[63]Mr Dean Knudson, Deputy Secretary, DCCEEW, Proof Committee Hansard, 26 July 2024, p. 74.

[64]Mr Knudson, DCCEEW, Proof Committee Hansard, 26 July 2024, p. 74. The six key issues for Stage 3 consultation have been outlined as (1) Assessment and approvals system, (2) Restoration Contributions, (3)Standard for First Nations Engagement and Participation in Decision-making, (4) Regional Forest Agreements, (5) Exemptions (prior authorisation and continuing use), and (6)ClimateChange.

[65]See, for example, Smart Energy Council, Submission 111, p. 3; Australian Climate and Biodiversity Foundation, Submission 47, pp. 5‒6; Property Council of Australia, Submission 35, p. 1.

[66]Professor Samuel AC, Private capacity, Proof Committee Hansard, 26 July 2024, p. 70.

[67]Business Council of Australia, Submission 24, p. 3.

[68]Western Australian Government, Submission 28, p. 1.

[69]Whitehaven Coal, Submission 64, p. 1.

[70]Commonwealth of Australia, Budget Measures: Budget Paper No. 2 2024–25, p. 58.

[71]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 (accessed26June2024).

[72]EPA bill, Explanatory Memorandum, p. 38; EIA bill, Explanatory Memorandum, p. 42; Amendment bill, Explanatory Memorandum, p. 241.

[73]See, for example, Amendment bill, p. 241.

[74]Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee), Scrutiny Digest 8 of 2024, pp. 5−9.

[75]Scrutiny of Bills Committee, Scrutiny Digest 8 of 2024, p. 6.

[76]Scrutiny of Bills Committee, Scrutiny Digest 8 of 2024, p. 7.

[77]Scrutiny of Bills Committee, Scrutiny Digest 8 of 2024, p. 8.