EPBC Revisited

Australia’s environment laws have been updated, but with only minor improvements to ‘environmental protection and biodiversity conservation’

By Chris Johansen, Green Issue Co-editor

Humans can be divided into two categories. Those who acknowledge the environment we are born into and wish to integrate with it and those who see the environment as a means of exploitation for well-being gain. By far the latter predominate – as evidenced by the ongoing devastation of natural environmental everywhere on Earth. Actually, there is continuum, from environmental respect to its blatant exploitation. Sadly, there is an overwhelming majority towards the latter end of that continuum, globally and in Australia.

This is the context of the of EPBC (Environmental Protection and Biodiversity Conservation) Act legislation in Australia. The original Act was legislated in the Howard era in 1999, when big and small business interests were the priority consideration, rather than environmental concerns per se. The Graham Samuel review of the existing EPBC Act in 2020 pointed out that the Act fell well short of either protecting the environment or of allowing businesses to gain prompt environmental approvals.

The incoming Labor government in 2022 promised to revise the existing EPBC Act based on the recommendations of the Samuel review. Tanya Plibersek, as Environment Minister, was given that task. She did indeed diligently try to seek a compromise between effective environmental protection and the corporate sector who saw rigorous environmental protection as a threat to profitability.

In December 2022, the Government published its ‘Nature Positive Plan: better for the environment, better for business’ which sought to guide the Government's reform agenda of national environmental laws. Basically, it proposed establishing National Environmental Standards to guide conservation planning and recovery, an Independent Federal Environmental Protection Agency (EPA) to oversee trust and integrity, and faster decision making procedures for environmental approvals.

Notably, the Nature Positive Plan emphasized the need for consultation with and involvement of First Nations people in environmental sustainability. A belated realization that First Nations peoples in Australia had learned how to live with the environment without unduly damaging it over some 65,000 years. A stark contrast to the environmental damage inflicted over the previous 250 years of European colonization.

The Nature Positive Plan was intended to be implemented through sequential, discrete pieces of legislation. The first stage of EPBC Act reforms was completed in late 2023, with the creation of the Nature Repair Market and expanding the 'water trigger' for assessment of coal and unconventional gas developments.

The second stage was intended to be the legislation of the Federal EPA and Environment Information Australia (EIA). The EPA would assess project proposals, administer and enforce a range of federal environmental regulations and have compliance and enforcement powers. EIA would coordinate improvements to, oversee and report on Australia's environmental data and information.

Although the Greens, with balance of power in the Senate, compromised with Labor to pass Stage 1, they had trouble compromising on Stage 2. Main concerns were lack of adequate power of the EPA and failure to consider a ‘climate trigger’ which included Scope 3 emissions, in the same way that they had successfully negotiated a ‘water trigger’. But, importantly, the WA Labor Government made it patently clear that they would oppose all of the Greens’ proposals for compromise, in protection of WA’s mining industries. So, the Federal Government realized that their Stage 2 legislation would not pass the Senate in the current term. They withdrew it, and decided not to proceed with Stage 3, which sought the most extensive reforms, including the publication of National Environment Standards and amendments to environmental assessment and approval processes.

EPBC reform was thus relegated to the second term of the Labor government, with Murray Watt, as Environment Minister, in charge of the process. He did indeed consult widely with all concerned parties, but with an obvious bias towards the business sector, to assess what level of environmental protection reform would be acceptable to that sector.

He categorically ruled out inclusion of any ‘climate trigger’ as he argued that climate mitigation was covered by the ‘Safeguard Mechanism’ – which is full of flaws in being able to effectively reduce Australia’s greenhouse gas emissions.

Rather than proceeding with EPBC reform in stages Minister Watt bundled all components of reform into one piece of legislation, which he insisted would be passed by parliament within 2025. To get it through the Senate would require support from either the Coalition or the Greens.

The Environment Protection Reform Bill 2025 essentially comprises:

• Amendments to EPBC (1999) and other Acts to implement substantive reforms, such as national environmental standards, ‘unacceptable impacts’, ‘net gain’ and restoration charges in lieu of environmental offsets, reforms to the national interest exemption and a new ‘national interest proposal’, streamlining reforms to approvals and accreditation pathways, reforms of the nuclear actions trigger, improved compliance and enforcement powers, and increases in criminal penalties and civil penalties.
• The National Environmental Protection Agency Bill 2025 establishing a statutory agency to be known as the National Environmental Protection Agency (NEPA). The Chief Executive Officer (CEO) would be given functions and powers under nine environmental laws. The Minister may also delegate additional functions and powers to the CEO under the EPBC Act.
• The Environment Information Australia Bill 2025 establishes the Senior Executive Service position of Head of Environment Information Australia (EIA) within the department and sets out the Head’s functions.
• The Environment Protection and Biodiversity Conservation (Restoration Charge Imposition) Bill 2025 establishes a framework to enable the imposition of restoration charges in lieu of a proponent establishing environmental offsets.
• Three additional Bills provide for regulations to prescribe general charges, customs charges and excise charges, as necessary for cost recovery purposes.

I must admit that I have not waded through the nearly 500 pages of contorted legislative language so I rely on the assessments of various environment protection related organizations. Some of the major flaws in the proposed legislation noted were:

• As climate change is the biggest threat to Australia’s environmental values failure to include regulations concerning greenhouse gas emissions is inexcusable. Only self reporting of expected emissions, but without oversight of its integrity, is required by proponents.
• Ambiguity around National Environmental Standards, which are to be defined only after the legislation is passed. Who defines and administers them and will they be legally enforceable?
• Lack of native forest protection.
• The use of ‘offsets’. A natural ecosystem created over centuries cannot be re-created, especially in a changing climate.
• Although the concept of ‘no-go zones’ is positive, their definition and means of protection are riddled with loopholes.
• The power of the minister of the day to override environmental considerations, and the CEO of NEPA, in the ‘national interest’, e.g. for defence, critical mineral mining, etc.
• There is nothing in the current Bills that that would effectively strengthen the role of First Nations in environmental decision making under the EPBC Act. 
• Communities would be stripped of participation in environmental decisions.
• Decision-making about environmental harm would be handed to the states and territories.
• How NEPA would interact with existing state and territory EPAs is unclear.
• The fast-tracking of environmental approvals will inevitably reduce the rigour and credibility of such assessments.

The overall assessment of Greens Senator Sarah Hanson-Young was:

“The government’s proposal weakens environmental protections and makes destroying nature easier, faster and cheaper for industry. There’s no protection for native forests or the climate. The package is worse than the status quo and actually weakens environmental protection.”

However, the Greens faced a dilemma, should they continue trying to reach a compromise with Labor so that the Bill would pass through the Senate, albeit being far short of ideal. Or, stick to policy and principal and allow Labor to work out a deal with the Coalition, which would inevitably further the bias towards big business and ecological exploitation.

The Greens chose the former option, managing to get Labor to agree to more federal oversight of forestry and land clearing, and no "fast-tracking" for coal and gas projects. Thus the Bill passed the Senate in the final days of parliament at the end of November.

However, many of the above mentioned flaws in the Bill, especially the omission of climate considerations on the environment, remain open. So the stage is set for assorted environmental protests into the indefinite future, despite federal and state governments current penchant for cracking down on protesters. But, to gird ones loins for the inevitable confronting days ahead it would be worthwhile having another look at the film on how the Franklin River in Tasmania was saved.

Header photo: Men clearing bushland in South Australia circa 1935. _{The History Trust of South Australia, Creative Commons CC0 1.0}

_{[Opinions expressed are those of the author and not official policy of Greens WA]}