Australian Greens Dissenting Report
Environment Protection and
Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014
This Bill would facilitate the handover of Commonwealth powers to
approve damaging projects under the Environment Protection and Biodiversity Act
(EPBC Act) to State and Territory governments, local governments and other
unspecified bodies. It winds back environmental regulation in Australia by 30
years and leaves our precious plants, animals and places vulnerable to
environmental vandalism like never before.
The Australian Greens opposed this bill in the House and will oppose it
in the Senate.
Our national environmental laws
Our national environment law, the EPBC Act, was passed in 1999 by the
Howard government. The EPBC Act is designed to give Australia’s Environment
Minister the power to protect the places and animals which are so important
that they matter to all Australians: World Heritage Areas, threatened species
and ecological communities, National Heritage, Ramsar wetlands, migratory
species, the Great Barrier Reef, nuclear actions, water resources threatened by
coal or coal seam gas, and Commonwealth land and waters.
All developments that would have a significant impact on any of those "matters
of national environmental significance" currently require approval from
the Federal Environment Minister. State assessment processes are currently
accredited by the Commonwealth under agreements called "assessment
bilateral agreements" so proponents do not have to undertake two separate
environmental impact assessments, but separate approvals are still required
from the State and the Commonwealth governments.
The Australian Greens have always supported a strong role for the
Commonwealth in protecting the environment. It is in Australia’s national
interest to have robust national environmental protections to fulfil our
international obligations and to protect nationally significant matters. Most
importantly, strong national environmental laws give effect to the community’s
strongly held and often forcefully expressed desire for Commonwealth protection
for our precious places.
Sadly, our environment laws are already failing us. Australia's
environment and biodiversity are clearly in decline. The number of threatened
species has nearly tripled in the last twenty years and we are in a
biodiversity crisis. The Great Barrier Reef has lost half its coral since the
1980s, and could lose another half in the next decade. We have lost valuable
places and wildlife to the thousands of damaging developments that have already
gone ahead. These laws haven’t been able to protect parts of our environment
which need protection.
What is needed is radical strengthening of our federal environmental
laws – not a wholesale hand-off of powers down to pro-development state
Previous attempt to hand over approval powers
The Australian Greens oppose the handover of approval powers, and have
done so whichever government has proposed it.
In 2012, the Federal Labor government proposed to pursue similar
approval bilateral agreements with State and Territory governments. That
proposal was abandoned in after December 2012 after strong criticism from
environment groups, the broader community and the Greens, and sustained
warnings that environmental standards would be eroded, and that the system
would in fact become complex.
The Australian Greens introduced a Bill to remove the ability for the
Commonwealth to hand over approval powers, but it was not supported.
Nevertheless, a Senate inquiry into that Bill by this Committee found in
March 2013, that 'it is not appropriate for the states and territories
to exercise decision making powers for approvals in relation to matters of
national environmental significance.'
State governments cannot be trusted
State governments have a track record of environmental vandalism. If
State and governments had their way, the Great Barrier Reef would be scarred by
oil rigs, and the Franklin River in the Tasmanian Wilderness World Heritage
Area would be dammed.
In recent times, State governments have been the most enthusiastic
backers – or proponents – of damaging and dangerous projects which were
rejected by the Commonwealth, such as the proposal to graze cattle in the
Alpine National Park, the Mary River Dam, the Galilee mega coal mines, the
Abbot Point dredging project, and the proposed gas hub at James Price Point.
The failure of Regional Forestry Agreements to protect native forests
all over Australia further demonstrates how dangerous it is to leave environment
protection to the states.
This poor track record provided the original rationale for the EPBC Act,
so the handover of approval powers is a serious backwards step.
As the Australian Conservation Foundation submitted,
It is ACF's experience over 50 years that States and
territories frequently fail to act in the national interest in managing the
environment. The Commonwealth is best placed to consider national and cross‐border issues and make
decisions in the national interest.
Environmental standards will fall
The Government has ceaselessly repeated the assertion that environmental
standards will be maintained, but this runs squarely against the available
evidence. Under the handover of powers, State, Territory and local government
decision makers would have little inclination, capacity, or incentive to
maintain environmental standards.
The standards won't change the states' poor attitude and record on
environment protection, and they can't prevent states determined to approve
projects which will damage the environment. Compliance will be a key problem -
the states will find a way around the standards or deliberately flout them, as
we've seen when the Queensland Government refused to comply with the assessment
standards for the Alpha coal mine in Queensland.
Crucially, the federal environmental laws leave a lot of discretion
about approvals and conditions to the decision maker – currently the federal
Environment Minister – and under the planned hand-off of powers, that discretion
would be exercised by the State Ministers, who have a track record of
environmental vandalism. The standards do not constrain that discretion. As Dr
Chris McGrath submitted,
The requirements for bilateral agreements in Pt 5 of the EPBC
Act ... do not change the highly discretionary nature of any decision to approve
an action or impose conditions. This means that the identity of the
decision-maker and their values are critical factors in the decision that is
reached. Unlike, for example, applying things like building standards that are
highly prescriptive and quantiﬁable, decision-makers under the EPBC Act
are required to consider broad qualitative criteria such as "economic and
social matters" and that the decision must not be inconsistent with Australia’s
international obligations. Decisions made by a State or Territory government
under an approval bilateral will be similar. The weighing-up process inherent
in reaching such a decision means that there is no "standard" that is
enforceable in any meaningful way.
The identity of environmental decision makers matters a great deal. Although
draft approval bilateral agreements have not been published for each state, the
Queensland draft agreement proposes to accredit the Coordinator-General under
the State Development and Public Works Organisation Act 1971 (SDPWOA
Act). Under Queensland legislation, the Coordinator-General is an unelected
public servant who is not bound to consider ecologically sustainable
development in making decisions. Instead, their statutory role is to facilitate
economic development via major infrastructure and resources projects. This
mandate is utterly inconsistent with exercising approval powers under the EPBC
It remains the federal government’s job to look after the most important
and precious of Australia’s environment assets, which are of international
significance, like the World Heritage Great Barrier Reef. No standard will be
able to replace the protection that is meant to be provided by the federal Government
for our precious places and wildlife, because of our international obligations
to do so.
Authorisation processes in subordinate instruments
One truly farcical aspect of the Bill is the proposal to accredit
non-legislative instruments such as policies or guidelines to take the place of
federal environmental laws. Locating critical national environmental
protections in such non-statutory instruments makes a sham of Government's
claim that environmental standards will be maintained. Environmental Justice
Australia submitted that such instruments engender uncertainty:
Guidelines cannot be expressed to fetter a discretion under an
Act. A decision maker must "give proper, genuine and realistic
consideration to the merits of the case and be ready in a proper case to depart
from any applicable policy". So whilst a guideline or policy may purport
to direct or require a particular outcome or to require that something be done
in a particular way great care needs to be taken that that is what is in fact
required or permitted by the Act.
Environmental Justice Australia also observed that the language of the
Bill permits accredited processes under approval bilateral agreements to be set
out in an instrument which is not made under a law. That is, the standards need
not be legally binding at all.
The Explanatory Memorandum further explains that "To do
so, subparagraph 46(2A)(a) provides that an authorisation process must be set
out in or made under a law of the State or Territory or be set out in an instrument
made under such a law."
The explanatory memorandum is not strictly correct it its
description of the clause. The Bill in fact only requires that the process be
set out wholly or partly in or under a law or in an instrument. This means that
a significant part of the process being accredited may not be set out in or
under an Act or legislative instrument of the relevant State or Territory.
Allowing the state or local governments to assume responsibility for
internationally significant environmental assets and not even requiring them to
reflect the federal standards in their own laws makes an absolute mockery of
the Abbott Government’s claims that the standards will be complied with. This
bill ensures that the standards currently enshrined in the EPBC Act will be
watered down and disregarded, as they may exist in mere guidelines, plans or
State and Territory processes and regulatory capacity are inadequate
State and Territory governments lack the processes and regulatory
capacity to administer the EPBC Act and safeguard matters of national
They should not be entrusted with further responsibilities, especially
since many are going through budget cuts. There will not be the staff to
undertake additional responsibilities and protect the national environment.
Under Queensland's draft approval bilateral, it is proposed to accredit
the SDPWO Act, which has recently been amended, but not to the extent that it
meets the standard of the EPBC Act. Experts are united in their agreement that
currently no state law anywhere in the country meets the level of the EPBC Act.
Dr Chris McGrath stated that:
I just cannot see how the approval bilaterals are consistent
with the standards of accreditation that the department published a few months
ago. When you read the standards of accreditation it reads like the
Commonwealth thinks that the states are going to do exactly what the EPBC Act
requires but under their legislation. When you read the approval bilaterals and
you understand the state legislation, it is clear that there is nothing like
that from the state's perspective. They are going to take their existing laws
and pretty well just say, 'Well, we'll consider the Commonwealth matters of
national and environmental significance.' How you enforce the requirements
against the state government I find very, very difficult to foresee.
State public service cuts have degraded often already weak regulatory
capacity, leaving State government wholly unsuitable to exercise EPBC Act
responsibilities, which will include compliance monitoring and enforcement. ACF
Multiple State Auditor‐Generals'
reports have found that state governments are struggling to fulfil their
existing statutory obligations. In Victoria the Auditor General found that less
than half of the states' listed threatened species and communities had the
required management statements completed, and estimated that at the current
rate of progress it would take the Victorian Department of Sustainability and
Environment an astonishing 22 years to complete them ... The Queensland Auditor
General’s report made it clear that the Queensland Environment department "is
not fully effective in its supervision, monitoring and enforcement of
environment conditions and is exposing the state to liability and the environment
to harm unnecessarily".
A similar verdict was reached by Western Australia’s Auditor General in
Job cuts have degraded the capacity of the Queensland, New South Wales
and Victorian Environment Departments to police regulation. ACF submitted that:
...in Queensland the [E]nvironment and Heritage Protection
Department was cut 16% (220 redundancies) in 2012‐13.
In the absence of additional resources increasing both biodiversity budgets and
staff, it seems highly unlikely the states could execute delegated powers
Potential for conflicts of interest
The proposed handover of approval powers highlights an unresolvable
conflict of interest: State and Territory governments often play too active a
role in, and benefit too directly from, major resources and development
projects to exercise independent judgement.
An even more galling conflict of interest would occur where State
governments or their instrumentalities are themselves the proponents of
projects. This bill allows such actions to be covered by approval bilateral
agreements, meaning states will be ticking off on their own projects – well and
truly the fox in charge of the henhouse.
The Mary River Dam project in Queensland was one such proposal. The
proponent was a State government owned corporation. Dr Chris McGrath submitted
The Commonwealth Environment Minister at the time, Peter
Garrett, was dissatisﬁed with the Coordinator-General’s assessment and
requested independent experts to review the EIS. They found major
deﬁciencies in it. Based on this independent advice he refused the dam
due to "unacceptable impacts" on threatened species such as the Mary
River cod and Australian lungﬁsh ... Had an approval bilateral been in
place at the time when the dam was proposed, it is certain that the Queensland
Government would have approved it being built and severe impacts on the listed
threatened species would have occurred.
The existence of a conflict of interest was illustrated well by Mr
Klatovsky of the Places You Love Alliance in relation to James Price Point in
Western Australia. The relevant approval by the Western Australian environment
minister was later found to be unlawful. Mr Klatovsky stated:
It was a development where the proponent was not the gas
companies; the proponent was the Department of State Development. The Minister
for State Development was the proponent, and he also happened to be the
Premier. In this circumstance, the Premier of Western Australia was the
proponent for a $47 billion gas hut. He was on TV and in the papers every day
pushing the case for this development.
Local governments are wholly unsuitable
This Bill also allows local governments, and potentially other bodies
such as unelected expert panels to be accredited to make approval decisions
under the EPBC Act. This is a deeply alarming development. Local councils are
not financially equipped to make those decisions, and certainly lack the
necessary expertise and perspective to do so. It is also well-acknowledged that
they are vulnerable to undue influence and corruption. Local governments do a
sterling job with their existing responsibilities but are wholly unsuitable to
discharge the national interest.
Call-in power in the draft approval bilateral agreements
Much was made by the Government of the reserve 'call-in' power which has
been written into the draft approval bilateral agreements with Queensland and
New South Wales. The contradiction in assuring the public that the states are
up to the job yet retaining a federal call-in power seems lost on the
Sadly the call-in power is wholly inadequate to protect the national
environment. It sets a test for re-intervention by the Commonwealth at a much
higher bar than the current EPBC Act, and requires a level of knowledge about
the inadequacy of a state process to properly assess a proposal, and in a
limited period of time (before the approval is issued) that will be impossible
for the federal Environment Minister to meet given reductions in staff. Where
will the federal staff be to monitor the states in order to inform the federal
environment minister in a timely manner of the need for a call-in? They will
have been redeployed or sacked, according to the evidence given to me in Budget
Estimates 2014. Alternatively, the call-in can be exercised if the state
government tells the federal government that the state is falling short – and
one can hardly expect a state to own up to being environmentally inadequate.
There will be no political will for the federal Environment Minister to
call projects in, no staff to alert them in a timely manner of the need to do
so, and no realistic prospect of the high bar for a call-in being able to be
The federal government already only has a sliver of environmental powers
– they only have responsibility when there is a significant impact on a matter
of national environmental significance. Plans to retain just a sliver of that
sliver will lead to business uncertainty, and the hand-off remains an abrogation
of their responsibility to protect all nationally and internationally
significant parts of Australia’s environment. The role of the federal
government in protecting our national environment should not be open to
negotiation by big business and state governments.
Lack of evidence base to justify handing off environmental powers
The duplication argument used by the government to justify washing their
hands of all environmental responsibilities right when they are most needed is
There is no credible evidence of the need for these proposed reforms,
nor evidence that the environmental risks can be managed. Government appears to
have blindly accepted the claims of the mining industry and Business Council of
Australia about duplication and the compliance costs of environmental
protection laws without seeking a sound evidence basis for those claims. Even
the industry themselves cannot come up with concrete examples of where the
federal environmental approval phase of an assessment process, a mere 28 days,
delays a project.
Any delays in the environmental approvals process would occur during the
assessment phase (often because the developer has not provided sufficient
information), so it is at the assessment phase that reforms should be directed
– not at the approval phase which cannot deliver any significant streamlining
and will simply deliver environmental corner-cutting.
Handing over the water trigger
The proposal in this Bill to hand over the recent federal protection for
water from significant impacts by coal and coal seam gas (CSG) (the "water
trigger") is a slap in the face to all communities facing the onslaught of
coal and CSG on their land and water.
The abject failure of state governments to properly regulate the
industry and to legislate adequate protections for ground and surface water was
precisely the reason the rural Independents and Greens worked to ensure the
previous Labor Government implemented federal protection. The water trigger
came about as a result of overwhelming community concern about the lack of
appropriate protection for groundwater by the States, and the continuing
scientific concern about long term impacts on groundwater quality and quantity.
Giving away these newly acquired federal powers to act in the national
interest to protect water – and by extension, farmland, communities, the
climate and the Reef – is a kowtow to the big miners the likes of which is
sadly becoming common under this Government.
The Lock the Gate Alliance and our members are strongly
supportive of the water trigger because we understand that water resources
cross jurisdictional boundaries, and decisions about mining projects that have
irreversible impacts on water require the perspective that only a Commonwealth
trigger can provide.
The Wilderness Society simply describes the proposal as 'not only a
broken promise, but also a potential disaster'.
The Australian Greens believe that passing this Bill to facilitate the
handing over of Commonwealth environmental approval powers to States, Territories,
local government, and other as yet unspecified persons would be hugely
destructive backwards step.
The hand-off of proposal under the EPBC Act as it stands is a recipe for
environmental destruction, but this bill worsens the situation by giving away
new powers to protect water, by removing the requirement for federal standards
to be reflected in state laws and by allowing local Councils or other
accredited agencies to perform the obligations of the Commonwealth.
This bill ensures that the standards currently enshrined in the EPBC Act
will be watered down and disregarded, as they may exist in mere guidelines,
plans or policies.
When combined with the existing pro-development attitude of state
governments and the lack of political will to refuse development applications,
the atrocious environmental track record of states, the states’ role to promote
the state and not the national interest, the staff cuts in various state
environment departments, the discretion inherent in decision-making that means
it matters who makes the final decision, the existing inadequacy of state
environmental laws, and the inherent conflict of interest where state
governments are the proponents for development that they will now have the
final tick off on, the Abbott Government has confirmed itself to be the worst
federal government for the environment in Australia's history.
This bill is the biggest step backwards in environmental protection in
30 years, and the Australian Greens will fight it with every fibre of our
Recommendation: That the bill not be passed.
Environment Protection and Biodiversity Conservation Amendment (Cost
Recovery) Bill 2014
The Australian Greens support the principle that proponents should pay
for the cost of regulating their damaging conduct, but cannot support this
There is a well-recognised literature on 'regulatory capture' in which a
regulatory agency which is supposed to act in the public interest is
compromised by too-close relationships with those it is charged with regulating.
The Department of Environment, in through Senate Estimates hearings in February
2014 has displayed a startling lack of engagement with this concept, even
though it is a key risk to their effectiveness.
Given the chronic under-resourcing and consequent under-staffing of the
Department of Environment, the Australian Greens fear that dependency on fees
from proponents will further compromise the Department's ability to maintain
its independence. Without proper safeguards, the risk of regulatory capture flowing
from dependence on fees for service cannot be managed.
Recommendation: That the bill not be passed.
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