EPBC Act - Biodiversity conservation

Up-date 6 Sep 2023

The Climate Council is calling for a pause on coal and gas project approvals, mainly as a way to put pressure on the Government to speed up the process of reviewing the EPBC Act. A moratorium or a ban won't be seen as acceptable, but a "pause" might be. The Climate Council is advocating that the process be sped up, and that the time of publishing the proposed reforms be brought forward so they are open to public scrutiny.

The Climate Council advocates that holding global warming to 1.5 should be one of the Objects of the Act, that climate should be embedded in the Act, and that potential climate impacts of a project (Scope 3 emissions included) should be a key consideration in the approval process.

It is not transparent what changes to the Act are being considered. The indications are that the Government is not working on integrating climate into the revised EPBC Act.

The Minister’s ‘Nature Positive Plan’ is publicly known but many questions remain unanswered: https://minister.dcceew.gov.au/plibersek/media-releases/media-statement-labors-nature-positive-plan-better-environment-better-business

It’s best not to use the term, “climate trigger” because:

  • Labor sees it as a Greens proposal
  • “Climate Trigger” means different things to different groups.
  • At the moment, The Environment Minister interprets the “climate trigger” to mean that a project, once it’s approved, should be referred to Minister Bowen as a candidate for restrictions on their Scope 1 emissions

It is believed that Minister Plibersek's advisers are shielding her from the strength of people's concern about climate change. Now is an important time to be letting the Minister know your concern directly, through meetings with her or letters.

See the Climate Council's talking points.


Progress report on EPBC-related legislation

The final report of the once-in-a-decade review of the Environment Protection Biodiversity Conservation (EPBC) by Professor Graeme Samuel was handed down in late January 2021. Key findings of the report are listed here.

Well before it was handed down, however, the Coalition Government rushed through legislation in the House of Reps based on a few cherry-picked recommendations in the Interim Report, but which essentially would weaken safeguards for our beloved wildlife and wild places. The Streamlining Environmental Approvals Bill aimed to mainly to simplify the approvals process for extractive industries, primarily by handing over decision making powers to the states, territories and local governments. Fortunately, the legislation was blocked in the Senate.

The Government then introduced the Standards and Assurance Bill in an effort to win over Senate support for the government’s stalled Streamlining Environmental Approvals Bill. It aims to do two core things (called Schedule 1 and Schedule 2):

  1. Establish a national framework for the making, varying, revoking and application of National Environmental Standards; and
  2. Establish an Environment Assurance Commissioner to undertake monitoring or auditing of the operation of bilateral agreements with states and territories and Commonwealth processes for making and enforcing approval decisions.

ARRCC believes the Standards and Assurance Bill is poorly drafted and has too many loopholes to deliver environmental outcomes. Strengthening the legislation is critical if we are to address Australia’s worsening extinction crisis. Again, it was  passed in the House of Reps in June 2021, and currently scheduled for consideration in the Senate.

Problems with the proposed reforms 

The proposed legislation does little to create reforms that would protect Australia’s iconic species and their habitats. Professor Samuel made thirty-eight interrelated recommendations which, if implemented adequately, would serve the purpose.

The government has ignored the recommended standards as proposed by Professor Samuel and has constructed their own “interim standards”. Problems with these:

  • These have not been publicly released nor consulted on.
  • They do not describe desired outcomes, merely prescribe process.
  • There is no review mechanism.
  • The federal Environment Minister has discretion to override the standards based on their understanding of the “public interest” which could too easily allow a development on commercial grounds.

Similarly, far from proposing Professor Samuel’s crucial recommendation to establish a well-resourced independent regulator to ensure compliance with legislation, the government has proposed Environmental Assurance Commissioner with few powers and no dedicated staff.

The government’s proposed reforms would not achieve the purpose of the EPBC Act, which is to meet the urgent, pressing need to protect habitats and threatened species.

Suggestions regarding standards

The National Environmental Standards as proposed by Professor Samuel should be instituted, standards concerning data regarding matters of national environmental significance, Indigenous engagement, community participation, biodiversity, offsetting, enforcement and compliance and the restoration of degraded but critical habitats for threatened species.

Legislation should:

  • Insist on standards being applied to specific development applications, not just broadly applied in conjunction with other environmental measures.
  • Build in a provision for non-regression, so that standards cannot be weakened.
  • Create an appropriate accreditation pathway so that National Environmental Standards are first established before agreements are entered into with states and territories.
  • Require reviews of standards by independent scientific experts, and require the Minister to respond publicly to these reviews.
  • Limit the discretionary power of the Minister to override the requirement that National Environmental Standards be applied.

Suggestions regarding assurance of standards 

Rather than one Environmental Assurance Commissioner, Australia needs a statutory, independent, well-resourced Regulatory Authority which is not part of the Department of Agriculture, Water and the Environment. This was Professor Graeme Samuel’s key recommendation. The regulator would be “responsible for monitoring compliance, enforcement, monitoring and assurance. It should be properly resourced and have available to it a full toolkit of powers.” This is the recommendation which needs to be implemented as soon as reasonably possible.

It is the moral responsibility of the federal government to heed all the recommendations of the Samuel Review. Please advocate that any framing of EPBC amendment legislation should be based on the full suite of recommendations.

Regional Forestry Agreements should come under stronger EPBC laws

Regional Forestry Agreements are agreements between the States and the Commonwealth, essentially devolving decision-making on forestry to the States and Territories. The Agreements are exempt from being required to comply with the provisions of the EPBC Act. Graeme Samuel’s Review said there are “fundamental shortcomings” in Regional Forest Agreements and he had “low confidence” they were upholding Commonwealth protections for native forests subject to logging operations.

Essentially, State Governments which stand to gain royalties from State Forestry, are in charge of ensuring that logging does not destroy the habitats of threatened species. There is a conflict of interest here. To ensure the survival of our iconic iconic species, Regional Forestry Agreements should no longer be exempt from EPBC provisions, which in turn should be strengthened.

See also:

Wilderness Society urges government to adopt recommendations from review of Conservation Act - Central Coast Community News

and Australia urged to overhaul environment laws and reverse 'decline of our iconic places' | Australian politics | The Guardian


Take action to protect our forests and biodiversity (5 Oct, 2020)

The Commonwealth Environmental Protection and Biodiversity Conservation (EPBC) Act came under its once-in-a-decade formal Review this year (2020). ARRCC and numerous ARRCC supporters made submissions to the Review, but the Coalition Government is rushing through questionable legislation to amend the EPBC Act ahead of the release of a EPBC Review final report due in late October.

The House of Representatives has passed the amendment legislation, but these have yet to be debated in the Senate. The inadequacies of the framing and implementation of the EPBC Act are in large part responsible for our declining natural environment and high extinction rates, so it is critical that legislation based on the Review reverses these trends. Instead, this legislation is very likely to make matters worse for our native forests and wildlife.

The legislation could be put to the Senate as early as the Budget sitting week (starting Oct 6) but this is more likely to happen in the week starting November 9. Please write to your Senators as soon as possible.

Talking points for letters

Please consider putting the following points in your letters or e-mails to the Senators who represent your State. Senators and their staff will consider your views more carefully, the extent to which you use your own words.

Please express concern about any weakening of environmental protections in Australia at a time when they need to be radically stronger.  

Australia has the fastest deforestation rates of any developed country. This needs to be urgently addressed because forests are key to both sequestering carbon and providing habitat for vulnerable native species.

There is far, far more to be lost than to be gained by pushing through this legislation quickly, before the final outcome of the Review is published. There are much better ways to create employment opportunities. At a minimum, legislation should reflect the key recommendations of the Interim Report, allow time to research the potential consequences of the proposed changes and be properly subject to both parliamentary and community scrutiny.

The proposed devolution of responsibility to state and territory governments:

  • Means more decision-making by state-level governments compromised by conflicts of interests - they are stakeholders in forestry and receive royalties from mining.
  • Is likely to result in further land-clearing, approvals of development and mining projects, and lead to a further acceleration of extinction rates. (These have been the outcomes of Regional Forest Agreements which have similarly abdicated environmental responsibilities to states.)
  • Will make it more difficult for Australia to meet its national obligations under international conventions such as the Convention on Biological Diversity.
  • Runs counter to the need for the harmonising between state and territory frameworks, national data collection and a coordinated response to nation-wide challenges such as feral species and water resources.

Instead, the Commonwealth Government should adopt the key recommendation of Graeme Samuel so far, the Interim Report which is to establish an independent regulator which is “responsible for monitoring compliance, enforcement, monitoring and assurance. It should be properly resourced and have available to it a full toolkit of powers.”

Please ask the Senator to block this legislation in its present form when it is presented to the Parliament. Ask them to insist on the careful framing of any EPBC amendment legislation, based on the full suite of recommendations from Graeme Samuel’s final report.

Note that cross-bench Senators’ details are:

Senator Stirling Griff (SA) [email protected] 

Senator Jacqui Lambie (Tas) [email protected]

Senator Malcolm Roberts (Qld) [email protected]

Senator Rex Patrick (SA) [email protected]

Senator Pauline Hanson (Qld) [email protected].au

Why we care as people of faith

The world’s great religions have long traditions of scripture and philosophy around the intrinsic value of the natural world. As well as being enriched by the beauty and wonder of nature, we hold that all things are interconnected and held in balance. These values form the roots of ARRCC’s commitment to care for the earth. We want all of life to flourish, now and into the future. As people of faith we believe that humanity has a special responsibility to protect nature’s balance.

For example, forests should be protected for the sake of biodiversity, the water cycle and weather systems. They help keep local environments cool and moist, which can reduce the severity of bushfires. Forests are important carbon sinks. Furthermore, the global loss of forests contributed 8 – 10% of global greenhouse gas (GHG) emissions in 2016 – 17. With the exceptional forest fires since that time, the figures are likely to be higher today.

We have already seen the extremes made worse because of a 1oC global temperature rise. Limiting warming to the guardrail of 1.5oC will require the very rapid decarbonisation of the global economy. For Australia, this means no new coal or gas mining, a shift to 100% renewable energy as soon as possible, and halt to the pace of deforestation. Every delay will cost lives and livelihoods, especially for those already in poverty.

Instead, deforestation and extractive industries have been allowed to unduly upset the balance in Australia. As well as being the largest exporter of coal and liquified natural gas (LNG) in the world, our country is a “deforestation hotspot” and ranks second (to Indonesia) for ongoing biodiversity loss.

In the name of protecting jobs, the Coalition Government is quite exclusively focused on clearing the way for developers and mining companies. Even though there are many more jobs in renewable energy, low-carbon industries, recycling and habitat restoration projects, it has progressively marginalised organisations and activists attempting to protect nature, and has been very slow to enforce environmental regulations.

As Pope Francis wrote in Laudato Si’, “Is it realistic to hope that those who are obsessed with maximizing profits will stop to reflect on the environmental damage which they will leave behind for future generations? Where profits alone count, there can be no thinking about the rhythms of nature, its phases of decay and regeneration, or the complexity of ecosystems which may be gravely upset by human intervention.” (para. 190)

ARRCC is a member of the Australian Forests and Climate Alliance (ACFA). See http://forestsandclimate.org.au/

Outcomes of Environmental Protection & Biodiversity Conservation Review

The passion and sheer number of submissions led Graeme Samuels to write in his Interim Report Executive Summary, released in June, “The overwhelming message received by the Review is that Australians care deeply about our iconic places and unique environment. Protecting and conserving them for the benefit of current and future generations is important for the nation.”

At the same time, the Interim Report reflected a bleak view of the efficacy of the Act to date to protect Australia’s treasured natural places: “The environment and our iconic places are in decline and under increasing threat. The EPBC Act does not enable the Commonwealth to effectively protect and conserve nationally important environmental matters. It is not fit for current or future environmental challenges.”

Interim Report main recommendations

  • Establish a modern, independent regulator responsible for monitoring, compliance, enforcement and assurance to be a strong cop on the beat.
  • Provide the regulator with a full suite of modern regulatory monitoring, compliance, enforcement and assurance tools and adequate funding.
  • Legally enforceable National Environmental Standards should be the foundation for effective legislation.
  • Strategic national plans should be developed for big-ticket, nationally pervasive issues such as management of feral animals or adaptation to climate change.
  • Efforts should be made to harmonise and streamline with the states and territory regulatory frameworks.
  • Reforms to the EPBC Act should focus on improving transparency of decision-making, to reduce the need to resort to court processes to discover information. Legal challenges should be limited.
  • Reforms should be co-designed with Indigenous Australians.
  • More needs to be done to positively restore the environment.
  • Environmental offsets should be much better designed. They should be the exception (not the default) after all practical options to avoid or mitigate impacts have been exhausted.

Amendment Bill

The main points in the Environmental Protection and Biodiversity Conservation (Streamlining Environmental Approvals) Bill 2020 are summarised by the Government here. The objective is a “One Stop Shop” approach so States can allow project approvals to go through more quickly. The Federal Government will no longer require the conditions of a Commonwealth “water trigger” to be met, so projects will only need to meet State Government standards.

It responds primarily to industry frustration at the complexity of multiple regulatory regimes and the time it takes to get approvals. The Government states that “The main objective of the EPBC Amendment Bill is to enable devolution of approval powers to the States and Territories and to improve the bilateral agreement process. Notably, it clarifies that an action cannot be referred under Part 7 of the EPBC Act if it is covered by an approval bilateral agreement.”

The rationale for haste given by Minister Sussan Ley is that a post-COVID Recovery will need for projects to proceed more quickly and provide employment.

Background on problems with the Bill

See the assessment of the Environmental Defender’s Office here.

This article in The Guardian reports on the views of the Climate and Health Alliance, The Law Council of Australia and the World Wildlife Fund, among others.

World Wildlife Fund research into the results of unauthorised land-clearing because of poor implementation of the Commonwealth EPBC Act.