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HSI analysis of the interim report in the EPBC Act review and the Government’s response
By Nicola Beynon and Alexia Wellbelove
Professor Graeme Samuel’s interim review of our national environment law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), has now been published and fired a starter gun on negotiations for reform. Despite the final report not being due until the end of October, Federal Environment Minister, Sussan Ley, has signalled the Government is racing to introduce legislation to parliament as early as the August sessions. The legislation plans to devolve federal environmental decision-making responsibilities to the states and territories with some hastily drafted standards.
Those that have been following this issue know that much is at stake. Australia’s wildlife is reliant on strong environment laws for its protection, and we have significant concerns that the Government’s proposals are rushing the reform process, putting expediency of decisions ahead of improved environmental outcomes. Humane Society International has been invited to the negotiating table with select business, science and conservation groups to flesh out details for reform and we will engage constructively. However, we do it with great trepidation over the rush.
The Interim Report
First it is important to recognise what Professor Samuel has identified so far in his interim report. The interim report has done a good job of diagnosing the major problems with the EPBC Act explaining why it is ‘ineffective’ and ‘not fit to address current or future environmental challenges’. Professor Samuel says the operation of the EPBC Act needs to shift from permitting gradual decline to halting decline and restoring the environment, so that development can continue in a sustainable way. HSI concurs. Decision making under the EPBC Act has been very permissive with very few damaging proposals refused.
He rightly points out that ‘significant efforts are made to assess and list threatened species. However, once listed, not enough is done to deliver improved outcomes for them.’ HSI agrees. Ten years ago, the Act was amended to make plans to recover threatened species optional and there is no accountability on the success or failure of the plans that are developed.
Samuel gets to the nub of the ‘cumulative impact’ problem in the Act, pointing out that ‘decisions are made on a project by project basis and only when impacts on protected matters exceed a certain size. This means that cumulative impacts are not systematically considered and the overall result is net environmental decline rather than protection and conservation’. HSI has long lamented this death by a thousand cuts.
He also identifies the problem of the ‘considerable discretion in decision-making’ in the EPBC Act. HSI considers this to be the Act’s greatest downfall. It repeatedly allows short-term politics to override science-based decisions, short-changing the long term public good.
The interim report also recognizes the Act’s failure to meet the objectives of indigenous Australians or value traditional knowledge and views in decision making. It notes the lack of community trust in the Act, that is more focussed on process than environmental outcomes. Compliance and enforcement is also identified as ‘too weak’ and penalties as an inadequate deterrent.
With the problems well identified, Professor Samuel recommends ‘fundamental reform’ in the following directions:
- Devolved decision making to states and territories
- Legally enforceable National Environment Standard
- A strong independent cop to police the system, in the form of an independent regulator
- A single national source of truth to improve access to best available data
- A focus on environmental restoration resulting in habitat growing, rather than declining.
Government Response
Citing the need to recover the economy post COVID-19, Minister Ley in response to the interim report stated the following:
“The Commonwealth will commit to the following priority areas on the basis of the interim report:
- Develop Commonwealth-led national environmental standards which will underpin new bilateral agreements with State Governments.
- Commence discussions with willing states to enter agreements for single touch approvals (removing duplication by accrediting states to carry out environmental assessments and approvals on the Commonwealth’s behalf).
- Commence a national engagement process for modernising the protection of indigenous cultural heritage, commencing with a round table meeting of state indigenous and environment ministers. This will be jointly chaired by Minister Ley and the Minister for Indigenous Australians Ken Wyatt.
- Explore market-based solutions for better habitat restoration that will significantly improve environmental outcomes while providing greater certainty for business. The Minister will establish an environmental markets expert advisory group.”
The Minister said that the Government will not support the establishment of an independent regulator.
HSI Analysis
Legally enforceable national standards and a focus on environmental restoration are very much supported and HSI is pleased to be on Professor Samuel’s Consultation Group to develop these recommendations further. We will be urging that time is taken to get them right. We think it is a grave mistake for the Government to so quickly dismiss the recommendation for an independent regulator. This is a tremendously important part of the reforms, without which we have little confidence in better outcomes. HSI also has deep scepticism and mistrust of any move to devolve decision-making for matters of national environmental importance to the states and territories, an issue on which we have fought successive governments for the past eight years, so far successfully.
Our cynicism is not without foundation. Thanks to a protracted Freedom of Information battle in 2018, documents released as a result of HSI’s proceedings in the Administrative Appeals Tribunal (AAT) showed that the Australian Government identified significant areas where the NSW Policy failed to meet standards under the EPBC Act. HSI uncovered Ministerial willingness to bend Commonwealth National Standards to accommodate weaker standards from the states.
Samuel recommends National Environmental Standards to set the foundations for effective regulation. He recommends these standards should be developed by the Commonwealth and they should be binding and enforceable. He foresees standards as providing ‘a pathway’ for the government to accredit the regulatory processes of others. To be foundational, HSI says the development of standards must come before any consideration is given to devolving environmental approvals.
It is HSI’s firm view that prioritising the devolution of environmental decision-making, with premature interim standards, and without an independent regulator to ensure rigorous oversight, is premature and dangerous. It risks locking in the status quo which means more extinctions. This must not be rushed through.
A fast decision is a false economy. It risks poorly thought out legislation that will burden states and territories, as well as industry and businesses, with greater inefficiencies. It risks a legacy of environmental degradation and greater financial cost in the long term. The best way to speed up decisions is to invest in our environment. Invest in the collection of environmental data and invest in regional planning across the country to map out what our wildlife needs to survive and provide business certainty for where development can occur sustainably.
We are pleased not everyone is in such a rush. HSI has welcomed comments made recently by the NSW Environment Minister Matt Kean, who has urged the Commonwealth not to rush and voiced support for an independent regulator.
Our environment laws need to have the protection of the natural world at their forefront. Numerous studies have shown that the destruction of nature and consequent removal of wildlife causes an increase in infectious diseases. If nothing else, surely the enormous impacts from COVID-19 and the extreme bushfire season have taught us we need to vastly improve our relationship with nature and take the hard-learned lessons here in Australia and worldwide.
The current review of the EPBC Act is an unmissable opportunity for Australia to reset the frame. To turn around Australia’s extinction crisis, we need to stop the business as usual attitude to threatened species. Critical habitats for threatened species need to be ring-fenced from ongoing destruction. Much work needs to be done on the prototype standards set out in the interim report to avoid further loss of species, however even with significant work this may still be the outcome unless the EPBC Act is first amended to strengthen protection for our most threatened species and their habitats.
A quantum leap in investment is also required, but if successful will provide a significant return. Faster decisions will only be possible with far greater investment, strong national leadership and planning to ensure the irreplaceable wildlife and ecosystems on which the economy depends is given the protection it needs to avert further extinctions.
If you haven’t taken our action already, you can ask your local MP to support stronger protections for threatened species here.
Photography: Doug Gimsey
Nicola Beynon is HSI Australia’s Head of Campaigns and was one of a small team of conservationists who helped negotiate passage of the EPBC Act through Parliament in 1999 and has worked closely with the legislation ever since.
Alexia Wellbelove is HSI Australia’s Senior Campaign Manager who has worked closely with the legislation since 2009 and was a co-founder of the Places You Love alliance in 2012 following threats posed then to devolve approval powers to states and territories under the Act.
Both Nicola and Alexia have managed several court cases for HSI seeking compliance with the EPBC Act, as well as having been responsible for nominating numerous threatened species for EPBC Act listing and been members of their recovery team.
