Australia’s national environmental laws: what is the Morrison government proposing to change and why?

 Extract from The Guardian

Conservation

Coalition says the changes will help Australia’s economic response to Covid pandemic, while conservationists fear they will weaken protections.

A review of Australia’s Environment Protection and Biodiversity Conservation (EPBC) Act has found the nation’s environment is declining and iconic places and species are under growing threat.

Lisa Cox

Thu 27 Aug 2020 19.54 AEST

Last modified on Thu 27 Aug 2020 22.02 AEST

The federal government has proposed changes to Australia’s national environmental laws. What are those changes and why are they being considered?

What environmental laws are we talking about?

The Environment Protection and Biodiversity Conservation (EPBC) Act is Australia’s centralpiece of environmental legislation. The laws aim to conserve and protect the environment, including threatened species, wetlands, world heritage sites and the Great Barrier Reef marine park.

The laws are used to determine what should be listed for protection, guide the recovery of wildlife threatened with extinction, identify major threats to our environment, manage wildlife trade and decide whether development such as mining, urban expansion or agriculture clearing should proceed.

Why are we talking about them now?

Every 10 years, the act is subject to an independent statutory review. The latest review, chaired by the former competition watchdog head Graeme Samuel, is happening now. In July, Samuel handed down an interim report with findings and recommendations. His final report is not due until October but the Morrison government is pursuing changes to the laws before that report is delivered.

What did Graeme Samuel recommend?

The headline finding of the interim report was that Australia’s environment is in an unsustainable state of decline and our iconic places and species are under increasing threat from habitat destruction, climate change and invasive species. He found the act was ineffective and successive governments had failed to implement the law.

His recommendations were for an overhaul of the laws that would occur in three phases. The foundation for the reform would be a new set of national environmental standards that are legally enforceable, with an independent regulator responsible for enforcement.

Samuel recommended the commonwealth devolve its approval powers under national law to the states and territories. This means state and territory governments would take responsibility for deciding whether to approve developments that affect nationally significant species, habitat and world heritage areas.

The purpose of this would be to reduce duplication of decision-making processes at federal and state level, which can slow assessments and make the system complex for developers to navigate. Samuel said clear national standards must form the basis for any transfer of powers.

What has the government said it will do?

The Morrison government said it would introduce legislation in August to clear the way for bilateral approval agreements with the states and territories. It will negotiate agreements with state and territory governments. It has been pushing for this deregulation, arguing it will aid Australia’s economic response to the Covid-19 pandemic. The environment minister, Sussan Ley, promised a set of prototype national environmental standards would be introduced at the same time.

A consultative committee made up of environment, business, scientific and Indigenous stakeholders has been meeting with Samuel to develop the final standards. Separate committees have been working on plans for funding and changes to improve the protection of Indigenous cultural heritage.

The government has promised further legislation in coming months, but has not been specific about what that will be. It is unclear whether the government will adopt the bulk of the recommendations from either the interim or coming final report.

So what is the legislation we are talking about?

The government introduced legislation this week that will help clear the way for the establishment of bilateral approval agreements with the states. The amendments are designed to strengthen the devolution process to make it less able to be challenged under the law. It is very similar to the one-stop-shop legislation proposed by the Abbott government in 2014.

The bill Ley introduced to parliament did not include prototype national standards as promised.

The bill also proposes removing current restrictions in the act that would prevent the commonwealth from handing over its decision-making powers under the water trigger to the states.

The water trigger was an amendment introduced by the Labor government in 2013 that requires coal and coal seam gas projects that affect water resources to be assessed under national environmental laws.

What does that mean for the environment?

This is an excellent question and the short answer is it doesn’t look good at present.

Bilateral approval agreements still need to be negotiated with states and territories. But the bill, as it stands, without enforceable standards will weaken oversight of the environment. Ley says national environmental standards will be included in the bilateral agreements themselves, but legal experts warn this would not have the legal force of standards introduced as a regulatory instrument.

The government also has to outline how it will address the massive environmental failures identified in Samuel’s interim report. Australia has the world’s highest rate of mammal extinction and governments have failed to protect habitat, implement recovery plans for species facing extinction or address the biggest threats to our environment. This was the case even before the bushfire disaster of 2019-20, which put more species and ecosystems in jeopardy.

Environment groups fear the changes proposed will weaken protection and lead to a further decline of Australia’s iconic places, plants and animals.

What comes next?

The government’s bill still has to be debated by the parliament, with a date to be set.

Whether it passes the Senate could come down to the crossbench. The Greens are opposed to the bill and Labor has said the government should not pursue any changes until interim national environmental standards are made available for Australians to see.

In the Senate this week, Labor and crossbenchers Jacqui Lambie, Rex Patrick and Stirling Griff backed a Greens motion that said there should be no debate on the bill until Samuel releases his final report in October, or until interim standards are developed. Government and One Nation senators blocked that push.

It is unclear when the amendments will be brought on for debate and which way a vote would go. Expect some negotiations and pressure on Labor. Watch this space.