Samuel review
Australia’s principal federal environment law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), has undergone its second ten‑yearly statutory review, which was conducted by Professor Graeme Samuel.
The review’s final report stated:
The evidence received by the Review is compelling. Australia’s natural environment and iconic places are in an overall state of decline and are under increasing threat. The pressures on the environment are significant – including land-use change, habitat loss and degradation, and feral animals and invasive plant species. The impact of climate change on the environment will exacerbate pressures and contribute to further decline. In its current state, the environment is not sufficiently resilient to withstand these threats. The current environmental trajectory is unsustainable.
The final report found the EPBC Act to be ineffective and made 38 recommendations for reform. Professor Samuel stated, in the final report, that ‘Governments should avoid the temptation to cherry pick from a highly interconnected suite of recommendations.’
Three tranches of reform were proposed. The initial tranche comprised a suite of interconnected reforms including the adoption of the proposed National Environment Standards appended to the report; the development of several new standards as a matter of priority; accreditation for state agencies and new bilateral agreements; establishing an oversight and audit body; recasting statutory advisory committees; implementing a suite of compliance and enforcement powers through an independent body and accredited parties; removing inconsistencies, gaps and conflicts in the EPBC Act; and revising the offsets policy.
EPBC decision-making
Concurrently with, but separate to, the Samuel Review, the government had come under substantial criticism for its failures in administering decision-making under the EPBC Act. In June 2020, the Auditor-General found that:
most key decisions were being made outside statutory timeframes (with the proportion of referral, assessment method and approval decisions made within statutory timeframes decreasing from 60 per cent in 2014-15 to five per cent in 2018-19);
there had been a massive blowout in delays (with an average 116 day overrun of statutory timeframes for approval decisions, a 510 per cent increase from the average 19 day overrun in 2014-15); and
79 per cent of approvals were non-compliant or contained errors.
These administrative failures have real and significant adverse consequences for jobs and investment. In its report the Audit Office noted that ‘the longer a decision takes, the longer it is until the entity can commence the action. Delays can have significant costs for regulated entities, with the Productivity Commission estimating in 2013 that a one-year delay to a major offshore liquefied natural gas project could cost between $500 million and $2 billion’.
Labor Senators also observe that under-resourced decision-makers are at risk of making lower-quality decisions, leading to greater vulnerability to legal challenge. As the Audit report stated:
If the court finds that the decision is not compliant with the EPBC Act or otherwise subject to legal error, it can set the decision aside and require it to be reassessed. This result is costly for the department (which must conduct the assessment again) and the regulated entity (which loses certainty of approval and must delay any action until reassessment).
This bill
The Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 provides a regulation-making power for the government to establish interim national environmental standards. On the government’s own account it intends to introduce standards that do no more than provide for the same environmental protection obligations as are currently required by the EPBC Act.
Other jurisdictions would be able to be accredited against those standards. Accreditation would allow the other jurisdiction to make approval decisions, in place of the Commonwealth. This is commonly referred to as devolution.
The government has provided no clear commitment to resource the other jurisdictions adequately or at all following their assumption of its responsibilities in this regard. This gives rise to an obvious risk that devolution would lead to further unnecessary decision-making delays and/or risk of error, in turn creating delays for jobs and investment.
The bill also provides for the establishment of a new monitoring and audit entity. The design of the new entity has been criticised as lacking sufficient independence and the statutory powers necessary to give effect to its role.
Put another way, the effect of the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 appears to be:
conferring a power on the Minister that she intends to use to issue standards that merely duplicate the current law;
devolving EPBC decision-making to the states while not providing any measure of additional environmental protection, and without providing assurance as to resourcing; and
establishing an insufficiently independent and underpowered monitoring and audit function.
That being the case there is very little substantive difference between this bill’s effect, and the effect of the Abbott-era ‘one-stop-shop’ bill of 2014, which Labor strongly opposed.
Because the proposed standards merely duplicate the obligations that arise under the existing provisions of the EPBC Act, there is also very little substantive difference between the effect this bill would have if passed, and the effect of last year’s Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020. The 2020 bill, which remains before the Senate, was otherwise known as the Abbott 2.0 bill, because it effectively replicated the provisions of the 2014 ‘one-stop-shop’ bill. Labor opposed the 2014 bill and its 2020 incarnation.
Labor Senators’ view
Labor Senators support the introduction of strong national environmental standards, underpinned by legislation, that improve environmental protection. By the government’s own admission, the standards intended to be made pursuant to this bill, if passed, will do nothing more than duplicate existing obligations in an additional set of instruments. This seems to do little more than create unnecessarily duplicative regulation and the risk of unintended inconsistencies.
Labor has called for a genuinely independent ‘cop on the beat’ for the environment, to assist in restoring public trust in the EPBC Act and the regulatory arrangements that underpin its implementation. Australians need to be able to trust that their national government is capable of both preserving and restoring our precious natural environment, and ensuring that there are not unnecessary delays in environmental decision-making that in turn lead to delays in jobs and investment.
At the same time, Labor has insisted that the government address its own failures in decision-making under the EPBC Act. Environment department resourcing cuts have led to unnecessary delays in decision-making and a greater propensity for errors, which in turn create further delays. This is an administrative, not legislative, problem, of the government’s own making.
Professor Samuel’s view was that legislative reform to enable accredited jurisdictions to exercise decision-making powers should be part of a suite of interconnected reforms. This seems to be a sound approach. It is not the approach that the government is taking by pursuing Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021.
In light of the foregoing views, Labor Senators recommend the following:
Recommendation
Labor Senators recommend that the government withdraw this bill and instead propose, for the parliament’s consideration, an interconnected suite of reforms that:
provide for stronger environmental protections to address the overall state of decline and the state of increasing threat;
establish a tough cop on the beat to help restore trust; and
support efficient and effective decision-making under the EPBC Act in the interests of avoiding unnecessary delays to jobs and investment.
Senator Nita Green
Committee Member