ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT - EXPLAINED!

Call on the Australian Government to commit to stronger protections for our wildlife and the wild places they call home.

By Quinton Clements

Head of Policy and Horizon Scanning, WWF-Australia

Right now, the future of Australia’s nature laws remains uncertain.

Australia’s Environment Protection and Biodiversity Conservation (EPBC) Act 1999 has undergone a once-in-10-year independent review, and 38 independent recommendations have been made to fix loopholes and failures that have allowed the destruction of threatened species habitat.

However, the federal government’s response to these recommendations remains contentious. Many, including WWF-Australia, are critical of the government’s proposed reform ignoring many of the independent recommendations for improvement and therefore promises a further decade of watered-down laws that will not sufficiently protect our fragile and unique wildlife and wild places.

What is the EPBC Act?

The EPBC Act is the main law that considers the protection of the country’s important environmental ecosystems against the impacts of any new developments and changes in land use (including agricultural development, urban expansions and mining).

An Independent Review of the EPBC Act was conducted by Professor Graeme Samuel and the final report was handed to the government in October 2020 and publicly released on January 28, 2021. When applied as a package, the 38 recommendations of this report present a genuine opportunity to deliver reforms that address the decline of Australia's environment.

What did the Independent Review say?

In his final report, Professor Samuel found that the natural environment is in an overall state of decline and the current environmental trajectory is unsustainable. The report found that the EPBC Act is ineffective and failed to protect matters of national environmental significance.

Professor Samuel proposes holistic reform of the Act with 38 interconnected recommendations. The centrepiece of his solution is new, legally enforceable national environmental standards, which he argues should be adopted in full and immediately implemented. He also makes clear that the standards must be supported by the introduction of an independent regulator. He recommends three new independent and federal government bodies be established to improve compliance and enforcement.

Overall, the review provides an important benchmark that can be used when dealing with the government and the Parliament on EPBC reform. To further strengthen the structural independence of compliance and enforcement, WWF-Australia strongly advocates for the introduction of a new independent Commonwealth Environment Protection Authority.

What was the government’s response to the Independent Review?

It has been more than 12 months since Samuel’s final report was released and the government has still not formally responded to each of the recommendations. The government continues to publicly state its intention to negotiate bilateral agreements with states and territories to devolve decision-making powers based on the ‘interim’ national environmental standards drawn from the existing Act. The two government Bills addressing this - EPBC Amendment (Streamlining Environmental Approvals) Bill 2020 and the EPBC Amendment (Standards and Assurance) Bill 2021 - remain before Parliament.

The Standards and Assurance Bill does not create the conditions for the development of outcomes based on national environmental standards, as recommended by the Independent Review.

The creation via this bill of ‘interim standards’ that would perhaps be reviewed within two years sets a very low bar. Negotiation of bilateral approval agreements would commence based on the poor interim standards, leading to uncertainty. It is realistic to expect that the standards enacted at the outset will be locked in via bilateral agreements for a long period of time, without any realistic pathway for their improvement.

In June 2021, the Minister for Environment Sussan Ley announced a reform pathway and time frame modelled on Professor Samuel’s proposed pathway. The catch was that the reform pathway is subject to the government’s legislation (Streamlining Environmental Approvals Bill and the Standards and Assurance Bill) passing Parliament. The government’s plan is to implement the streamlining bill with interim standards applying to any bilateral agreement and then the development of ‘final standards’ over the next two to three years.

What has WWF-Australia been doing?

As part of the Places You Love Alliance, WWF-Australia has focused on a dual approach to secure the best possible outcome in terms of the government’s response while persuading the non-government parties in the Senate to hold the line on the government’s streamlining agenda.

A key element of this was engaging the support of the crossbench to introduce legislation for our preferred model of an independent regulator. Independent MP from Tasmania, Andrew Wilkie, introduced a Bill to establish a Commonwealth Environment Protection Authority (EPA) to finally enforce Australia’s nature laws, a move welcomed by WWF-Australia and other conservation groups. An independent national environmental watchdog is critical to reversing Australia’s extinction crisis and protecting wildlife and ecosystems for future generations.

It is clear that there is broad agreement from stakeholders that reform to the EPBC Act with regard to environmental approvals is required. And that the reform process outlined by Samuel must continue and without delay. The work with the other stakeholders continues to explore an overall solution that could work for both the environment and business sectors. This parallel process with business may enable a win-win solution to be presented to the government of the day. WWF-Australia is a key player along with the Australian Conservation Foundation in negotiating a win-win solution. The stakes for the environment could not be higher.

What can you do?

• Australians can help stop our wildlife extinction crisis by sending a message to their local MP here.
• Adopt a koala and help regenerate nature.
• Help spread the word by sharing on your social media.

Will you send a message to your local politician, asking for stronger laws and stronger compliance to protect our vulnerable wildlife?