Senator David Pocock's Dissenting Report
1.1The Australian Government says that Environment Protection Australia (EPA) will ‘be a tough cop on the beat’,[1] but the ‘cop’ lacks integrity, has no oversight over key issues and the laws it will enforce are broken.
1.2As a megadiverse country, Australia has extraordinary biological diversity—Our land abounds in nature's gifts, Of beauty, rich and rare. But our failed environmental laws have overseen a largely unmitigated decline in the Australian state of the environment. There are now more than 2,000 species and ecological communities listed as threatened with extinction, with a record 144animals, plants and ecological communities added to the list last year. Australia ranks second in the world for biodiversity loss and we have the highest rate of mammalian extinction on the planet.[2]
1.3In the words of Professor Graeme Samuel AC, who led the independent review into Australia’s primary environmental legislation, the existing legislation is virtually useless and has to go:
Frankly, the thousand pages of [Environmental Protection and Biodiversity Conservation Act] 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.[3]
1.4In late 2022, the Australian Government promised that it would reform our national environment laws. We were told that the reforms, including new National Environmental Standards, would be introduced into Parliament before the end of 2023.[4] It is now more than 12 months later and Australians have not even seen an exposure draft, with the bulk of reform delayed indefinitely.[5] The impact on this government’s credibility has been significant. For public confidence to be restored, the government must bring forward real reform through the Nature Positive bills and deliver an EPA with integrity.
1.5As designed, the EPA lacks independence, fails on transparency and will do little to build public confidence that the decline of the Australian environment will be slowed and reversed. Without improvements that bring integrity to the EPA, the Nature Positive bills should not be passed.
1.6The EPA should be able to consider the destructive impact of native forest logging in areas under Regional Forest Agreements (RFAs). Many threatened species and ecological communities are being pushed towards extinction by ongoing native forest logging without proper oversight. What is the point of an EPA if it cannot even consider the destructive impact of native forest logging on matters of national environmental significance? Labor has committed to removing the carve out for RFAs and should legislate a timetable immediately.[6] Without ending the exemption of RFAs from national environmental laws, the Nature Positive bills should not be passed.
1.7The rapid decline in the state of Australia’s environment has not gone unnoticed. Successive governments have not made decisions about Australia’s environment as if we are going to be here for a long time. Australians are calling on the government to change this—to act with conviction and ambition to halt and reverse the destruction of nature and the declining state of our environment. We want our children to experience a natural world that is preserved and restored.
1.8I thank the committee and the secretariat for the work done on this inquiry. I also thank my colleagues in the lower house for the work they have done highlighting potential improvements to the bills.
1.9As many submitters and witnesses pointed out, the reforms put forward in this package are incomplete and back-to-front. The proposed EPA would administer and enforce failing national environment laws, with no change in sight as the government refuses to commit to a timeline for reform.
1.10This is a radical change from the commitment made in the Nature Positive Plan to introduce legislation and reform national environmental laws before the end of 2023:
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.[7]
1.11The Australian Government’s attempt to reframe this as a staged approach belies the fact that they have not delivered on their commitment and have no plan to do so. Unlike the staged approach to reform originally proposed by Professor Samuel, which mapped out how to rapidly roll out a comprehensive reform program, the Australian Government’s approach is ad hoc and political. The most glaring omission from the Nature Positive bills is the absence of long-overdue National Environmental Standards.
1.12The creation of National Environmental Standards is the cornerstone of reforming national environment laws. Their creation was at the heart of the Samuel Review—a fact that was pointed out by many submitters.[8] The Labor Environment Action Network (LEAN) for example submitted that the National Environmental Standards were a ‘centrepiece of Samuel’s proposed reforms’.[9]
1.13The urgent need for National Environmental Standards was acknowledged by the Albanese Government nearly two years ago. In 2022, the Minister for Environment and Water, the Hon Tanya Plibersek MP, promised imminent reform stating:
…our government will develop legislation in 2023, with the intention of introducing it by the end of the sitting year next year [2023].[10]
1.14The Minister went on to say ‘our first major change will be the introduction of National Environmental Standards, in line with the chief recommendation made by the Samuel Review.’[11] The Nature Positive Plan describes the National Environmental Standards as necessary to support the shift in thinking and legislative reform to ‘promote climate and environment-friendly development and nature-based solutions to protect, restore and manage our most precious habitats, places and species.’[12]
David Pope, A new cop on the highway to hell, The Canberra Times, 24 July 2024.
1.15Many submitters called for the inclusion of a power to create National Environmental Standards, and for the Standards to be developed and introduced as soon as possible.
1.16According to the Australian Climate and Biodiversity Foundation (ACBF):
Much of the work has already been done on draft Standards and the underpinning operational changes required to implement them. Standards have been continuously supported as a key reform across the spectrum of stakeholders, and they can be given legislative and practical effect in the immediate future if amendments are made to the Stage 2 legislative package now.[13]
1.17The Australian Conservation Foundation captured the state of play during the public hearing, stating:
The national environmental standards are a cornerstone of [nature protections] because they define what nature needs. We've said a lot. We've talked a lot. We've gone around in circles. It's time for getting on with action.[14]
1.18The Australian Academy of Science called for the third stage of reforms, including the National Environmental Standards, to be progressed by the end of the year.[15]
1.19In failing to undertake reform of our national environment laws, the Australian Government has succumbed to the influence of state governments, notably the Western Australian Government, and vested interests that oppose reforms to strengthen our laws and protect the environment. The WA Government submitted to the inquiry that ‘as proposed, stage 3 reforms could cause significant delays to environmental approvals in the crucial years between now and 2030…’, and supported the delay of further reforms in favour of further collaboration and consultation.[16]
1.20Unsurprisingly, destructive industries and companies applauded the decision to delay reform indefinitely. Whitehaven Coal—who have been fined multiple times for breaching environmental law, including polluting waterways and stealing a billion litres of water in the last drought—called for environmental reforms not to be rushed. Whitehaven wanted further consultation in order to avoid unintended consequences, even though reforms are already delayed and with no timeframe in sight.[17]
1.21Australians, and the organisations that exist to protect the environment on their behalf, are frustrated at the indefinite delay. At the public hearing, the Environmental Defenders Office explained the need to have reform undertaken in a logical order:
…one of our concerns is that you can have beefed up compliance and enforcement—so you might actually find a breach and find illegal clearing—but that's after the harm has happened. That habitat has already been destroyed. What we actually need is laws that are better in the first place, that identify unacceptable impacts and have clear standards to protect that important habitat upfront…[18]
1.22LEAN argued that the standards should apply to decision making under the current Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), and be finalised before the next election.[19]
1.23The Samuel Review and the Australian Government’s own Nature Positive Plan acknowledged that national environment laws should apply to Regional Forest Agreements (RFAs). The Samuel Review identified the ‘fundamental shortcomings’ in how the RFAs work with the EPBC Act. Further, the review stated that ‘RFAs rely on the States to undertake monitoring, compliance and enforcement, with little Commonwealth oversight’.[20]
1.24Professor Samuel set out that RFAs should be required to demonstrate consistency with the National Environmental Standards to avoid the need for an EPBC Act assessment and approval, with amendments needed to both the Regional Forest Agreements Act 2002 and EPBC Act. In 2020, Professor Samuel called for the Commonwealth to ‘act now’.[21]
1.25Professor Samuel underlined his findings in a recent hearing of the Senate Environment and Communications References Committee, in which he said that ‘we ought to repeal the exemption in respect of the regional forest agreements.’ He went on to say:
…if we don't deal with this, and deal with it long before 2030, we are neglecting a fundamental element of the habitat for species, whether they be threatened or whether they're going to go onto the threatened species list. We ought to get rid of those RFAs. They should never have been introduced in the first place…[T]hey shouldn't be there. I thought they were a shocker, frankly.[22]
1.26There is overwhelming evidence that habitat loss is one of the two most destructive forces against Australia’s biodiversity. The need to address RFA exemptions is urgently needed to protect some of our most vulnerable species. BirdLife Australia submitted that:
The removal of the RFA exemption for native forest logging under the EPBCAct would make a dramatic and significant difference to these efforts, with a consequent positive benefit for threatened bird species.[23]
1.27The urgent need to remove exemptions for native forest logging should be addressed in the current stage of EPBC Act reforms. The Wilderness Society recommended urgent action to address the threat of logging to biodiversity, and submitted that native forest logging within RFAs is ‘directly linked with increased risk of extinction’.[24]
1.28Many submitters highlighted the EPBC Act’s failure to protect native forests from the forestry industry through the RFA exemption.[25] The Australian Conservation Foundation, among others, called for the repeal of RFA exemptions.[26] The Places You Love Alliance stated that while an increased focus by the EPA on deforestation and land clearing is welcome, ‘it will be undermined by the current [EPBC] Act’s carve outs for logging under Regional Forest Agreements…’. The Alliance called for these carve outs to be removed.[27]
1.29The ACBF submitted that:
The RFAs have been controversial since their creation and have been the subject of several legal challenges. The RFAs are based on science and assessments undertaken in the mid 1990’s. Notoriously, there has been no independent monitoring of the effectiveness of RFAs and commitments to regular review and monitoring have been cursory at best and laughable at worst.[28]
1.30Environmental Justice Australia submitted that:
…without change, the new EPA will enforce broken laws that have allowed an average of 545,000 hectares of forest and bushland to be destroyed each year over the past 10 years. This is the equivalent of an MCG-sized area destroyed every two minutes. The impacts on our wildlife are profound, alarming and well-documented.[29]
1.31The submission from Lighter Footprints was also scathing, noting that RFAs ‘have failed to protect Australia's forest biodiversity, evidenced by the significant declines in forest-dependent threatened species including the Leadbeater’s possum, Greater gliders, and several bird species’.[30]
1.32Submitters highlighted the impact the exemption of RFAs from national environmental laws has had on threatened species. Environmental Justice Australia stated that:
…in practice, deforestation is currently almost totally unregulated under the EPBC Act. Even when logging agencies are bulldozing breeding habitat for some of Australia’s most critically endangered animals, like swift parrots, their operations are wholly exempt from the prohibitions on conduct likely to significantly impact [Matters of National Environmental Significance] including listed threatened species). Native forest logging is also wholly exempt from requirements for assessment, approval and conditioning in the EPBC Act, leaving it without Federal scrutiny and oversight.[31]
1.33The Wilderness Society submitted that ‘four forest-dependent species affected by logging under RFAs (Leadbeater’s Possum; Swift Parrot; Western Ringtail Possum; Regent Honeyeater) were identified as being among the 20 bird and 20mammal species most likely to become extinct by 2038…’. The Wilderness Society also stated that:
In 2022, the status of the combined koala populations in Queensland, NSW and the ACT was uplisted from “vulnerable” to “endangered” under the EPBC Act. The koala is projected to be extinct in NSW by 2050, yet logging and land clearing continues in its habitat, much of it under-assessed, or not assessed at all, under the EPBC Act.[32]
1.34BirdLife Australia also submitted that:
At present, under RFAs in New South Wales and Tasmania, BirdLife regularly makes intensive, and sometimes futile, efforts in its dealings with state forestry authorities to avoid damage to critical native forest habitat for Critically Endangered bird species such as the Swift Parrot.[33]
1.35The Australian Forests Products Association, a body that represents the logging industry, accepts that laws and standards should apply, and that the EPA should have an oversight role:
The forestry industry accepts that the RFAs will be subject to the EPBC Act. RFAs were not meant to be an avoidance mechanism but rather, as described in the recent Federal Court decision, an alternative mechanism by which the objects of the EPBC Act can be achieved. As such, there is no concern with the Samuel review recommendations that the RFAs meet the proposed standard for matters of national environmental significance and be subject to thorough five-yearly reviews and oversight from the EPA.[34]
1.36The loophole that allows native forest logging in RFA regions to occur without an approval under the EPBC Act must be closed This is fundamental to preventing the destruction of native forests and the incredible native threatened species that rely on them to survive.
1.37In the 17 years following the introduction of the EPBC Act, more than 7.7 million hectares of potential habitat and communities were cleared.[35] Much of the land clearing across Australia is in breach of the EPBC Act, but avoids referral and scrutiny under our national environment laws.[36]
1.38According to Humane Society International Australia:
Communities regularly identify clearing of habitat for species listed under the EPBC Act that has not been appropriately referred. We welcome the proposed increased focus on compliance and enforcement that will come with the new EPA, but industry should be left in no doubt that land clearing impacting on Matters of National Environmental Significance (MNES) must be referred under the existing EPBC Act. Measures to make this explicit should be included in the ‘Stage 2’ reforms.[37]
1.39Places You Love Alliance submitted that and the EPBC Act’s failure to assess land clearing, particularly due to erroneous interpretations of ‘continuations of use’ provisions, was destroying valuable habitat and must be urgently addressed.[38]
1.40The clearing of threatened species habitat must be assessed under the EPBC Act. Failure to make sure that clearing receives proper assessment cannot be adequately dealt with by an EPA. Law reform is required to remove ambiguity and ensure adequate protection of threatened species habitat.
1.41The absence of any explicit consideration of climate change in our national environment laws is a fundamental flaw that must be addressed. Climate change is arguably the single greatest challenge facing the Australian environment, but remains absent from Australia’s primary environmental legislation. Real reform would ensure that this glaring omission is addressed.
1.42The Climate Council painted a grim picture of the failure to consider climate change under national environmental laws: ’like a house caught up in a wild storm without a roof, our key environmental law does not provide any direct protection from the greenhouse gas emissions that are driving dangerous climate change.’[39] This view was supported by many other submitters.[40]
1.43The Environmental Defenders Office (EDO) set out that a newly established EPA, like the EPBC Act, would have no mechanism to consider climate change and climate impacts when making approval decisions. Since the introduction of the EPBC Act, more than 740 fossil fuel projects have been approved ‒ without any requirement to consider climate change impacts. The EDO recommended that the EPA should have a mandate to facilitate the achievement of Australia’s greenhouse gas emissions targets in line with the Climate Change Act 2022 and ‘should also have clear duties to prevent and mitigate greenhouse gas pollution and take all actions necessary to reduce the impacts of climate change, which should guide decision-making and activities across all functions’.[41]
1.44There were two leading suggestions on how climate change can be incorporated into national environmental laws. Various submitters including 350 Australia and Environmental Justice Australia proposed the creation of a ‘climate trigger’.[42]
1.45The Climate Council suggested that the Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024 be amended to embed the consideration of climate change into the EPBC Act, rather than a standalone ‘climate trigger’, by:
…adding climate change impacts to the list of factors proponents must consider when determining whether an action requires approval under the EPBC Act, and that decision-makers must take into account when assessing whether approval should be given. Importantly, this requirement would be attached to each of the existing Matters of National Environmental Significance, strengthening the protections currently provided to them.[43]
1.46Proposals to insert a climate trigger and to require consideration of climate change impacts in each MNES both have merit. Regardless of the model adopted, the EPBC Act should be amended to require full assessment of impacts of the climate harm likely to be caused by projects seeking approval under the Act.
1.47At the heart of the EPBC Act is an objective to protect the environment, and especially those aspects of the environment that are matters of national environmental significance.[44] As outlined above, the EPBC Act has failed spectacularly in meeting that objective. To strengthen the EPBC Act and give it some chance of achieving its objective, a definition of ‘unacceptable impacts’ should be inserted. The change would prevent the approval of projects that would have unacceptable impacts on matters of national environmental significance. This proposal had broad support from submitters.[45]
1.48Environmental Justice Australia (EJA) called for definitions of unacceptable impacts to be added to all MNES in the EPBC Act, and a definition of ‘unacceptable climate impacts’. EJA told the committee that by defining unacceptable impacts in the EPBC Act now would assist the new EPA by clarifying the impact of decision making on the environment, and making them more consistent and directed. Further, the EPA and Minister should be prohibited from approving unacceptable impacts.[46]
1.49Submitters provided overwhelming evidence that many projects approved under the EPBC Act, and many acts of environmental destruction, have resulted in blatantly unacceptable impacts. By simply defining ‘unacceptable impacts’, Australians could have more confidence that our national environment laws will be more effective in actually protecting the environment.
1.50The EPA, as proposed in the bills, falls well short of the best practice model of an environmental regulator. To be effective, it must be independent, guided by clear objectives and subject to transparency in line with community expectations. Changes must be made to improve the integrity of the EPA to empower it to achieve better outcomes and gain public confidence.
1.51Clear objectives, duties and functions are critical to the integrity and accountability of the EPA. The proposed object in the EPA bill lacks clarity and overlooks the urgent need for environmental protection.
1.52The need for clear and detailed duties and objectives was supported by submitters.[47] The Places You Love Alliance recommended that the bills be amended to:
Implement clear objectives, duties and purpose that give the EPA stand-alone guidance on its role in protecting Australia's environment, including in relation to delivering greenhouse gas emissions targets; halting and reversing threatened species and ecological community decline; efficient, outcome-focused and transparent decision- making with strong community engagement; and robust compliance and enforcement responses.[48]
1.53The EPA’s objectives and duties must be strengthened to give Australians confidence that it will be effective and help to reverse the decline in the state of our environment.
1.54There was strong support from submitters for an independent board to be appointed and ensure greater independence of the EPA.[49] A proposed governance board should have the power to appoint the CEO, and ensure that decision making is guided by members with appropriate expertise. This change would improve outcomes and increase public confidence in the operation of the EPA.
1.55The Law Council of Australia (Law Council) highlighted issues with the proposed model, which is to have a CEO of the EPA with no board. The Law Council stated that the bill’s proposed model would concentrate complex decision making for Australia’s environmental laws within a single person, ‘increasing the risk of certain judgement factors (e.g. a particular group’s interests or issues) being unduly given greater weight than other factors’.[50]
1.56Indeed the Law Council suggested that under the ‘single-decision maker model’, the EPA would be ‘more susceptible to political or industry influence through direct approaches to the CEO, which undermines the public’s perception of and confidence in the independence of the EPA’. The appointment of the CEO by the minister may lead to public perceptions that the role is political, and the appointment process itself may not be open, transparent and merit based.[51] The Law Council urged the committee to consider a statutory, independent, skills-based board.[52]
1.57Similarly, the Australian Academy of Science (the Academy), recommended a ‘stronger governance model’ to ensure independence, accountability and integrity. The Academy called for an independent board to add a layer of separation and reduce the possibility of political interference.[53]Environmental Justice Australia highlighted the issue by pointing out that a ‘lone individual at the top, no matter their personal integrity’ would be ‘highly vulnerable to influence, lobby and ultimately poor decision-making’.[54]
1.58Mr Simon Corden, former consultant to the OECD on the governance of regulators, submitted that similarly important regulators ‘internationally, at the Commonwealth level, and in the States, are typically structured with multi-member governing bodies’. Mr Corden noted that the decisions made by the EPA will require strong protections given the powerful stakeholders involved. Mr Corden set out a number of merits of a multi-member board.[55]
1.59The ACF highlighted other jurisdictions which have considered EPA governance models, and supported a board model.[56] The Centre for Public Integrity also noted that boards exist for the equivalent agencies in NSW, Victoria, SA, Tasmania and WA, with no known reason for the Commonwealth’s decision not to use a board model. ‘Given the nature of the decisions the agency will be responsible for, a governing Board would help insulate it from the influence of vested interests and enable it to achieve the object that the bill proposes’.[57]
1.60The absence of a justification for the proposed governance model was highlighted by Environmental Justice Australia, who said ‘the government has failed to articulate any reason for its opposition to this most basic and fundamental integrity measure’, and noted that a board model has been called for by stakeholders for years. It went on to say that:
The government promised to restore trust and integrity in our environment laws, and establishing an independent EPA was central to this promise. A new agency with an unaccountable boss at the helm will fail to deliver on that promise, and will entrench public distrust in environmental governance.[58]
1.61The EPA will only be truly independent if it is governed by an independent board, empowered to appoint a CEO free from the perception of political interference. The EPA Bill must be amended to achieve this independence.
1.62Past experience has left Australians with low confidence in environmental regulators. Regulators have failed to achieve their objectives as they oversee rapid declines in the health of Australian species and ecosystems. To regain trust and build public confidence, it is essential for the operation of the EPA to be transparent and open. Many submitters and witnesses highlighted this need.[59]
1.63The EDO recommended that minimum information publication requirements be stipulated in the bills, including clear:
…requirements for the publication within reasonable timeframes of relevant information, including decisions. This should be secured by ensuring a legislative presumption in favour of publication of information and decisions…timeframes for publication of specific documents following the EPA’s receipt or finalising of them; and requiring that any decision made by the Minister relevant to the EPA is also a ‘registrable decision’ and must be published on the register.[60]
1.64No convincing arguments have been put forward in opposition to these transparencyimprovements. They are key to providing public confidence in the operation of the EPA and should be adopted as amendments.
1.65The establishment of Environment Information Australia (EIA) has the potential to greatly improve the storage and management of data and information. At the core of the proposed institution is the definition of nature positive, which should be improved.
1.66The phrase ‘nature positive’ is repeated in policy papers and talking points. This is often frustrating for observers who see it as mislabelling and misleading in many instances. It is important to get the legislated definition of nature positive right. Concerns about the proposed definition were raised by a variety of submitters.[61]
1.67Dr Megan Evans was scathing in her submission: ‘Overall, the definition of nature positive offered in subsection 6(1) of the [Nature Positive] EIA Bill is incorrect, incomplete, and entirely amenable to gaming and manipulation that incentivises poor outcomes for nature, and indeed greenwash.’[62]
1.68It is pleasing to see that the committee recognises the importance of establishing a robust definition of nature positive that will better protect Australia’s environment and prevent further losses of biodiversity. Much of the evidence in support of an improved definition is set out at paragraphs 4.35 to 4.42 in the committee’s report. The need for a change to the definition is accepted in Recommendation 1 of the committee’s report, but it is disappointing that the recommendation is to undertake further consultation. Consultation on these reforms has been lengthy and there is not time to lose.
1.69The definition of nature positive must be strengthened in line with the Global Biodiversity Framework immediately and without delay.
1.70It is a great tragedy to see yet another Australian Government failing to fix our broken national environment laws and protect the incredible ecosystems and species that make this continent what it is. It is incredibly disappointing, after all the promises that were made, to see meaningful reform kicked down the road by the Albanese Labor government. It forms part of a worrying picture of a timid government unwilling to bring forward the ambitious reforms Australians are calling for and which are necessary to secure our future on this continent.
1.71The EPA and the EIA will be responsible for enforcement and monitoring of our environment in line with fundamentally broken nature laws. As such, the Nature Positive bills fail to shift the needle on halting and reversing the declining state of our environment. The bills should not be passed in their current form.
1.72With some minor changes to the bills, however, the Parliament could bring integrity to the EPA and strengthen our broken national environmental laws. With these changes, which deal with some of the glaring failures of the EPBCAct, the package would be worthy of support. At a minimum, the exemption of RFAs from national environment laws must be removed and the integrity of the EPA must be improved through increased independence and accountability.
1.73I support Recommendation 4 of the main report, which calls for the bills to be amended to include a new National Environmental Standards making power. However, I support calls from multiple submitters and witnesses to safeguard the power to create National Environmental Standards by way of a non‑regression clause which would mean that future standards cannot weaken existing standards.[63]
1.74I further call on the Australian Government to introduce National Environmental Standards before the end of this Parliamentary term.
Recommendation 1
1.75Amend Schedule 2 of the Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024 to bring forward amendments to close the loophole exempting native forest logging from the Environment Protection and Biodiversity Conservation Act 1999.
Recommendation 2
1.76Amend Schedule 2 of the Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024 to include the following amendments to the Environment Protection and Biodiversity Conservation Act 1999:
Repeal the exemption for continuous uses of land in section 43B of the EPBC Act; and
Add new provisions to compel referral and assessment of planned deforestation greater than 20 hectares in threatened or migratory species habitat, a threatened ecological community, or in Great Barrier Reef catchments, and require the assessment and approval decisions to consider the cumulative impacts of a native vegetation clearing on each threatened species or listed MNES impacted.
Recommendation 3
1.77The Nature Positive (Environment Protection Australia) Bill 2024 should be amended to ensure the independence of the Environment Protection Australia by requiring an independent governance board. The functions of the Board should include the appointment of a Chief Executive Officer.
Recommendation 4
1.78The Nature Positive (Environment Protection Australia) Bill 2024 should be amended to establish clear objectives for the EPA in the exercise of relevant functions, powers or duties. These objectives must include: to enhance the protection and restoration of Australia’s environment, and prevent the degradation of the environment and reduce risks to human health.
Recommendation 5
1.79The Nature Positive (Environment Protection Australia) Bill 2024 should be amended to set out clear, legislated duties for the EPA. Duties must include a duty to protect the environment and human health from the harmful effects of pollution, destruction, degradation and waste, through assessment, enforcement, monitoring, reporting and standard setting.
Recommendation 6
1.80The Nature Positive (Environment Protection Australia) Bill 2024 should be amended to increase transparency and accountability by establishing a legislative presumption in favour of publication of key information and decisions, including delegation of functions and powers by the Minister to the EPA.
Recommendation 7
1.81The Nature Positive (Environment Information Australia) Bill 2024 should be amended to include a definition of nature positive in accordance with the internationally accepted definition.
Recommendation 8
1.82The Environment Protection and Biodiversity Conservation Act 1999 should be amended to create a legislated definition of ‘unacceptable impacts’ on a matter of national environmental significance and a requirement that the Minister cannot approve an action which will have unacceptable impacts.
Recommendation 9
1.83The impact of climate change on the Australian environment must be captured in national environment laws. The bills should be amended to include amendments to the Environment Protection and Biodiversity Conservation Act 1999 requiring full disclosure of all direct and indirect emissions likely to be caused by projects seeking approval under the Act, and an explicit requirement to consider the climate impacts of these projects should be included in the assessment and approval provisions of the Act.
Senator David Pocock
Participating Member
Footnotes
[1]The Hon Tanya Plibersek MP, ‘Environment Protection Australia legislation introduced to Parliament’, Media Release, 29 May 2024.
[2]Department of Climate Change, Energy, the Environment and Water (DCCEEW), State of the Environment Report 2021: Species Decline.
[3]Professor Graeme Samuel AC, Private capacity, Proof Committee Hansard, Senate Environment and Communications References Committee, 17 April 2024, p. 12.
[4]DCCEEW, Nature Positive Plan: better for the environment, better for business, December 2022.
[5]See: Katina Curtis, ‘Nature Negative: PM reveals plans to water down environmental laws’, The West Australian, 2 September 2024.
[6]DCCEEW, Nature Positive Plan: better for the environment, better for business, December 2022, p. 4.
[7]DCCEEW, Nature Positive Plan: better for the environment, better for business, December 2022, p. 5.
[8]See, for example: Australian Climate and Biodiversity Foundation (ACBF), Submission 47; Greenpeace Australia Pacific, Submission 22, p. 3.
[9]Labor Environment Action Network (LEAN), Submission 17, p. 1.
[10]The Hon Tanya Plibersek MP, ‘Labor’s Nature Positive Plan: better for the environment, better for business’, Media Release, 8 December 2022.
[11]The Hon Tanya Plibersek MP, ‘Labor’s Nature Positive Plan: better for the environment, better for business’, Media Release, 8 December 2022.
[12]DCCEEW, Nature Positive Plan: better for the environment, better for business, p. 10.
[13]Australian Climate and Biodiversity Foundation (ACBF), Submission 47, p. 2.
[14]Ms Kelly O’Shanassy, Chief Executive Officer, Australian Conservation Foundation, Proof Committee Hansard, 26 July 2024, pp. 28-29.
[15]Australian Academy of Science, Submission 108, p. 1.
[16]Western Australian Government, Submission 28, pp. 1–2.
[17]Whitehaven Coal, Submission 64, p. 1.
[18]Ms Rachel Walmsley, Head, Policy and Law Reform, Environmental Defenders Office, Proof Committee Hansard, 26 July 2024, p. 36.
[19]Labor Environment Action Network (LEAN), Submission 17, p. 1.
[20]Professor Graeme Samuel AC, Independent Review of the EPBC Act – Final Report, October 2020 p.16.
[21]Professor Graeme Samuel AC, Independent Review of the EPBC Act – Final Report, October 2020 p.16.
[22]Professor Graeme Samuel AC, Private capacity, Proof Committee Hansard, Senate Environment and Communications References Committee, 17 April 2024, p. 15.
[23]BirdLife Australia, Submission 57, p. 6.
[24]The Wilderness Society, Submission 70, p. 9.
[25]Lighter Footprints, Submission 52, p. 3.
[26]Australian Conservation Foundation, Submission 27, p. 6. See also Humane Society International Australia, Submission 32, p. 3.
[27]Places You Love Alliance, Submission 11, p. 6.
[28]ACBF, Submission 47, pp. 6−7.
[29]Environmental Justice Australia, Submission 51, p. 6.
[30]Lighter Footprints, Submission 52, p. 3.
[31]Environmental Justice Australia, Submission 51, p. 6.
[32]The Wilderness Society, Submission 70, pp. 9–10.
[33]BirdLife Australia, Submission 57, pp. 5-6.
[34]Mr Richard, Deputy Chief Executive Officer and Director of Policy, Australian Forest Products Association, Proof Committee Hansard, 26 July 2024, p. 52.
[35]Ward, M.S., Simmonds, J.S., Reside, A.E., et al. “Lots of loss with little scrutiny: The attrition of habitat critical for threatened species in Australia.” Conservation Science and Practice 1, no. 11 (2019).
[36]University of Queensland, ‘Environmental laws failing to slow deforestation’, UQ News.
[37]Humane Society International Australia, Submission 32, p. 14.
[38]Places You Love Alliance, Submission 11, p. 6.
[39]Climate Council, Submission 1, p. 2.
[40]See, for example: 350 Australia, Submission 37, p. 1; Australian Conservation Foundation, Submission27, p. 12.
[41]Environmental Defenders Office, Submission 25, p. 24.
[42]See, for example: 350 Australia, Submission 37, pp. 2–3; Environmental Justice Australia, Submission 51, p. 15.; Tasmanian Climate Collective, Submission 81, p. 2.
[43]Climate Council, Submission 1, p. 7. The Climate Council further suggested that a new definition of ‘climate change impacts’ be created, which would allow the EPBC assessment process to consider and acknowledge the benefits of projects which can reduce or mitigate climate change.
[44]Environment Protection and Biodiversity Conservation Act 1999, paragraph 3(1)(a).
[45]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; Humane Society International Australia, Submission 32, p. 3.
[46]Environmental Justice Australia, Submission 51, pp. 12–13.
[47]See, for example: EDO, Submission 25; Places You Love Alliance, Submission 11.
[48]Places You Love Alliance, Submission 11, p. 4.
[49]See, for example: Mr Simon Corden, Submission 151, pp. 1–4; Australian Conservation Foundation, Submission 27, pp. 12–13; Australian Academy of Science, Submission 108, p. 2; Biodiversity Council, Submission 49, p. 3; Law Council of Australia, Submission 105, pp. 8–10; Environmental Defenders Office (EDO), Submission 25, pp. 12–14; Wentworth Group of Concerned Scientists, Submission 55, p. 3; Centre for Public Integrity, Submission 113, p. 2; Environment Institute of Australia and New Zealand, Submission 58, p. 2; Queensland Conservation Council, Submission 80, p. 2; Parents for Climate, Submission 46, p. 2; Environmental Justice Australia, Submission 51, p. 3; Invasive Species Council, Submission 107, p. 1; Doctors for the Environment Australia, Submission 56, p. 2; Bushfire Survivors for Climate Action, Submission 61, pp. 3–4; Environmental Advocacy in Central Queensland (EnvA), Submission 16, p. 2; Environment Centre NT, Submission 91, p. 3; Humane Society International Australia, Submission 32, p. 2; Tasmanian Climate Collective, Submission 81, p.3; Clarence Climate Action, Submission 78, p. 2; Climate Change Balmain-Rozelle, Submission 48, p. 2; Yarra Climate Action Now, Submission 196, p. 3; Australian Land Conservation Alliance, Submission 104, p. 5; Business Council for Sustainable Development, Submission 114, p. 7; 350Australia, Submission 37, p. 3; The Nature Conservancy, Submission 42, p. 2.
[50]Law Council of Australia, Submission 105, p. 8.
[51]Law Council of Australia, Submission 105, p. 8.
[52]Law Council of Australia, Submission 105, p. 9.
[53]Australian Academy of Science, Submission 108, p. 2.
[54]Environmental Justice Australia, Submission 51, p. 3.
[55]Mr Simon Corden, Submission 151, pp. 1–4.
[56]Australian Conservation Foundation, Submission 27, p. 13.
[57]Centre for Public Integrity, Submission 113, p. 2.
[58]Environmental Justice Australia, Submission 51, p. 3.
[59]See, for example: WIRES, Submission 50, p. 2; Australian Academy of Science, Submission 108, p.2; Sustainability Research Institute, Submission 79, p. 3; Environment Centre NT, Submission 91, p. 3; The Nature Conservancy, Submission 42, p. 2; Ecological Society of Australia, Submission 74, p. 2.
[60]EDO, Submission 25, p. 16.
[61]Law Council of Australia, Submission 105, p. 14.
[62]Dr Megan Evans, Submission 169, p. 1.
[63]Environmental Defenders Office, Submission 25, p. 23.
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