Chapter 1Background and key issues

Referral of the inquiry

1.1On 10 October 2024, the Senate referred the Environment Protection and Biodiversity Conservation Amendment (Reconsideration of Decisions) Bill 2024 (the bill) to the Senate Environment and Communications Legislation Committee (the committee) for inquiry and report by 14 November 2024.[1] The committee was granted an extension of time to report to 11 December 2024.[2]

Conduct of the inquiry

1.2In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to relevant organisations inviting submissions by 18October 2024.

1.3The committee received and published 22 submissions from organisations, which are listed in Appendix 1 and available on the committee's website. The committee agreed to conduct the inquiry on the written evidence and did not hold a public hearing.

Structure of the report

1.4The report comprises one chapter, which contains information relating to:

the referral and conduct of the inquiry, and acknowledgements;

the human rights compatibility of the bill;

consideration by the Senate Standing Committee for the Scrutiny of Bills;

an overview of the bill, including its purpose, background and an overview of the bill’s provisions;

views of submitters on the bill’s provisions; and

the committee’s view and recommendation.

Acknowledgements

1.5The committee thanks the organisations who made submissions to this inquiry, especially in light of the short timeframe for this inquiry.

Human rights compatibility

1.6The Explanatory Memorandum (EM) stated that the bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.[3]

1.7The Parliamentary Joint Committee on Human Rights made no comment on the bill.[4]

Scrutiny of Bills Committee examination

1.8The Senate Standing Committee for the Scrutiny of Bills made no comment on the bill.[5]

Overview of the bill

1.9This section sets out the purpose of the bill, the reconsidered decision which led to the introduction of the bill, and an overview of the bill’s provisions.

Purpose of the bill

1.10The bill seeks to amend the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to introduce limitations on timeframes permissible for reconsideration of decisions, and on those who may seek reconsideration after a period of three years.[6]

1.11Under the EPBC Act, the Minister for the Environment and Water (the Minister) is required to decide whether an action that is the subject of a proposal referred to the Minister is a ‘controlled action’. A controlled action is one that would be prohibited without approval of the Minister, such as an action that would affect certain protected matters including matters of national environmental significance (MNES).[7]

1.12Currently, the EPBC Act provides limited powers to the Minister to reconsider a prior controlled action decision, and to potentially revoke the previous decision and substitute it with a new one. If the Minister determines that the original decision should be revoked and replaced, the action may not begin or continue until an assessment is completed and approval has been granted under the EPBC Act.[8]

1.13The bill seeks to restrict the ability to request a reconsideration of a decision, as well as the time available to make the request.[9]

1.14In his second reading speech, Senator the Hon Richard Colbeck stated that the bill seeks to ‘provide greater certainty to project proponents regarding their environmental approvals through the introduction of limitations on timeframes permissible for reconsideration of decisions’.[10]

1.15Senator Colbeck highlighted that there is currently no limit on the timeframe for requests to reconsider decisions made by the Minister.[11]

Background to the bill

1.16The bill responds to a request from the Environmental Defenders Office (EDO) on behalf of the Australian Marine Conservation Society (AMCS) and the Humane Society International Australia (HSIA) to the Minister to reconsider and revoke a controlled action decision.

1.17In October 2012, the former Minister for Sustainability, Environment, Water, Population and Communities, the Hon Tony Burke MP, (former Minister for the Environment) decided that a proposed Marine Farming Expansion in Macquarie Harbour, Tasmania, was not a ‘controlled action’ under the EPBC Act (Controlled Action Decision).[12] The determination was made on the grounds that the project would be carried out in a ‘particular manner’, and a Particular Manner Notice was attached to the decision. The Particular Manner Notice outlined a set of measures for the project’s proponents to take in order to ensure that there are no significant impacts on the Maugean Skate and Tasmanian Wilderness World Heritage Area.[13]

1.18On 23 August 2023, the EDO wrote to the Minister to request that she reconsider and revoke the Controlled Action Decision relating to the Marine Farming Expansion in Macquarie Harbour.[14] The request was made on the grounds that ‘substantial new information about the impacts’ of the controlled action was now available, ‘and/or [there was] a substantial change of circumstances that were not foreseen at the time of the first decision’.[15]

1.19In November 2023, the Minister agreed to reconsider the decision.[16] Senator Colbeck acknowledged that the reconsideration of this decision was the impetus for the introduction of the bill:

The re-opening of an environmental approval that had been in place for over a decade has significant and potentially catastrophic ramifications for every business, organisation and industry group currently operating under an environmental approval previously granted. While the immediate impact of Minister Plibersek's action is, of course, on the salmon industry, the decision to re-open this environmental approval creates uncertainty for every business in Australia dependent upon environment approvals.[17]

1.20The outcome of the Minister’s reconsideration of the Controlled Action Decision was not known at the time of writing this report.

Provisions of the bill

1.21The bill would insert a proposed new subsection into the EPBC Act which provides that the ability of state and territory ministers would be limited to requesting reconsideration of decisions on actions solely in their jurisdiction.[18]

1.22The main provision of the bill seeks to restrict the timeframe for a person other than a minister of a state or territory to request a reconsideration of a decision to 36 months starting on the day the decision was made. The EM stated that, after the 36 months has elapsed, the ability to make the request would become exclusive to the minister of a state or territory in which the action is proposed to be taken.[19]

1.23The bill would also insert new provisions to provide that the Minister is not required to inform the appropriate state or territory minister of a request for reconsideration, or invite them to comment, if the request was made by that particular minister.[20] The Minister would not be required to send a notice of the outcome of the reconsideration decision to the requesting minister of the state or territory.[21]

1.24The provisions of the bill would not apply to requests made prior to the commencement of the provisions proposed in the bill.[22]

Views on the bill

1.25The committee received submissions from a range of stakeholders which put forward support for, and opposition to, the bill.

Support for the bill

1.26Industry bodies supported the bill on the basis that the bill’s provisions would increase regulatory certainty for investors in projects which require environmental approval.

Investor certainty

1.27Industry stakeholders, including from the forestry, energy and airport infrastructure sectors, supported the bill’s provisions and stated that the bill would increase investor certainty in projects.[23] Tilt Renewables argued that most planning approvals, particularly in state government planning processes, are not open to reconsideration based on new arguments or evidence.[24]

1.28Senex Energy concurred with the bill’s stated intention to increase certainty for investors, and said that, while it expressed no view on the particular reconsideration request relating to Macquarie Harbour, it agreed that timeframes should be restricted:

…this represents an unacceptable risk for any industry and leaves the door open for opportunistic reconsideration requests made by groups seeking to frustrate and delay project development. The consequence of such actions is to add cost and risk to projects that have already been through a comprehensive and lengthy assessment process, and it does nothing to improve environmental outcomes.[25]

1.29The Clean Energy Investor Group (CEIG) argued that the bill would provide welcome predictability and efficiency of environmental approvals for renewable energy:

By setting clear timeframes for reconsidering decisions, the EPBC Amendment would enhance confidence when a project approval is received, which CEIG views as a significant benefit for clean energy investors seeking regulatory certainty. Clear rules and timelines are key to boosting investor confidence in the sector.[26]

1.30Tilt Renewables and the CEIG recommended that the bill be amended to further reduce the timeframe for requesting a reconsideration of a decision from three years to two years.[27] Similarly Santos suggested further amendments to prescribe a timeframe within which a reconsideration decision is required to be made.[28]

1.31The Australian Forest Products Association (AFPA) highlighted the significant time involved for investors in timber, with plantations taking 30 to 40 years to be realised. The AFPA maintained that:

Actions that increase the uncertainty within the regulatory environment can only reduce the availability [of] investment capital, not least in medium to long term investment. The decision to rescind an environmental approval after 11 years must send a concerning signal to the investment market.[29]

1.32The Business Council of Australia expressed support for measures to reform the existing reconsideration provisions in the EBPC Act, outlining the impact of these decisions on local communities ‘that have come to rely on the jobs and economic opportunities the project has delivered’.[30]

Opposition to the bill

1.33Other submitters expressed opposition to the bill for a range of reasons, including:

general opposition to the principle behind the bill;

the need to have a pathway for community members to raise concerns about impacts on MNES;

the need to consider long-term environmental monitoring data, and be able to request a reconsideration of a decision in light of relevant data; and

the need to move forward on large-scale environmental reform, in line with the recommendations made by Professor Graeme Samuel AC as part of his independent review of the EPBC Act (the Samuel Review).

General opposition to the bill

1.34A number of environmental organisations opposed the bill. The AMCS and HSIA stated their strong opposition to the bill, which was brought forward in response to their request to reconsider the decision relating to Macquarie Harbour. The HSIA submitted that the bill is ‘targeted at a problem that does not exist, and that it would unnecessarily and irresponsibly remove community rights in environmental decision making’.[31]

1.35The AMCS and HSIA refuted the EM’s claims that the reconsideration of the Macquarie Harbour decision would lead to uncertainty for all EPBC Act approved proponents.[32] Similarly, Environmental Justice Australia (EJA) did not agree that the reconsideration request would create a ‘dangerous precedent’, as stated by Senator Colbeck.[33]

1.36The AMCS stated that the request to reconsider the expansion of marine farming in Macquarie Harbour met all three criteria under the current provisions of the EPBC Act to trigger the reconsideration, in that: substantial new information was provided on the impact of marine farming on the Maugean Skate; the expansion created a substantial change in circumstances that was not foreseen at the time of the decision; and that the action was not in line with the conditions set out in the Particular Manner Notice.[34]

1.37Submitters, including the Conservation Council ACT Region, argued that the EPBC Act already contains appropriate safeguards to limit the ability of a person to request a reconsideration of a decision.[35]

1.38The Australia Institute Tasmania stated that the request to consider marine farming in Macquarie Harbour was ‘not a dangerous action requiring legislative change, but an example of civil society organisations using national environmental law in precisely the way it was intended’.[36]

1.39While supportive of the bill in principle, the Institute of Public Affairs (IPA) raised concerns that ‘the bill would unintentionally have the effect of closing off legal rights for landowners who are directly impacted by an approval decision’.[37]

1.40The IPA recommended that the bill be amended to ensure that a person other than a minister of a state or territory who can request a reconsideration of a decision include ‘a person directly affected by an approval decision and does not include a person whose interest in a matter is merely ideological (such as environmental organisations)’.[38]

Community members’ pathway to raise concerns over previously made decisions

1.41The Wilderness Society stated that ‘environmental community rights are crucial for good environmental governance’ and noted research which shows that communities which have a genuine and meaningful say in environmental decisions, deliver better outcomes for both nature and the community.[39]

1.42The EDO argued that there is a widespread distrust of environmental legislation in Australia, and that the bill’s proposed restrictions would only deepen that distrust:

Community participation in decision-making, including through legal review, is essential for the operation of the environmental law regime and must be maintained–and ultimately improved. The bill is a step in the wrong direction.[40]

The need to consider long-term environmental monitoring data

1.43The AMCS highlighted that the environment changes over time, and more information is obtained through long-term environmental monitoring which may be vital for the protection of a site:

…the environment is not static but dynamic, and as time passes and impacts continue to affect the recovery of threatened species or other [MNES], it is essential that there be mechanisms to allow decisions to be reconsidered, should new information come to light about the status of a particular MNES.[41]

1.44The Australian Conservation Foundation (ACF) proposed that it is ‘practical and logical that the Minister has the power to reconsider decisions in the face of substantial new information about an actions impacts’.[42]

1.45Bushfire Survivors for Climate Action did not support a limitation on time to request a reconsideration of a decision, and argued that there should be flexibility in legislation to consider unforeseen changes or significant new information.[43]

The need for broader environmental reform

1.46The AMCS was supportive of environmental reform in line with the Samuel Review.[44] Similarly, the HSIA put forward the view that the bill ‘goes directly against the recommendations from the Professor Graeme Samuel 10 year review of the EPBC Act to improve community participation in decision-making and transparency of information’.[45]

1.47The Wilderness Society also highlighted the need to be able to draw on new information or changes in circumstances. The Wilderness Society argued that the bill would ‘deepen the integrity failings of the EPBC Act rather than offering a solution’, and would conflict with the recommendations made by Professor Samuel, including avenues for the public to challenge environmental decisions.[46]

1.48Similarly, the EDO was of the view that the proposed amendments in the bill would ‘only serve to entrench identified and well-known problems with the EPBC Act’, and stated that:

In the context of ongoing reform of the Act, which aims to fix this trust deficiency, the bill represents a piecemeal amendment that does not address any problems identified in the 2020 Independent Review of the EPBC Act, carried out by Professor Graeme Samuel AC.[47]

1.49BirdLife Australia similarly stated that:

[The bill] would further erode trust in the current system, and arguably further politicises it, moving it further away from the model proposed by Samuel of a system characterised by more openness, accountability, and based on more rigorous standards-based decision-making.[48]

1.50The EJA characterised the bill as a ‘dangerous distraction of time and resources from this more essential task’.[49] The ACF echoed this view, and stated that:

It is regrettable that in this context this Committee and the Senate are being required to spend time on amendments to the EPBC Act that undermine environmental protection measures, reduce community rights, and diminish government accountability for the administration of the Act rather than devoting attention to the urgent need for comprehensive improvements to our national nature laws.[50]

Committee view

1.51The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) contains appropriate safeguards to limit the ability of a person to request the reconsideration of a decision. The Minister for the Environment and Water (the Minister) is only able to revoke and substitute a previous decision as to whether an action is a controlled action or not.

1.52Further, the reconsideration of decisions provisions in the EPBC Act prohibits the reconsideration of the decision once the Minister has granted or refused an approval of the taking of an action, or where the action has been taken.[51] The Minister must also only reconsider the decision where the Minister is satisfied that there is substantial new information that has become available, or a substantial change in circumstance that was not foreseen at the time of the approval.

1.53These safeguards strike an appropriate balance by providing industry with confidence and certainty that a decision made will not be easily reversed, while allowing decisions to be reconsidered should new and significant information relating to the decision arise.

1.54The Department of Climate Change, Energy, the Environment and Water (DCCEEW) has published a policy statement which sets out the process and grounds for the reconsideration of referred decisions made under the EPBC Act.[52]

1.55The amendments proposed in the bill relate to one section of the EPBC Act. The Australian Government is undertaking consultation on a comprehensive reform of this act, and in December 2022 released the Nature Positive Plan: better for the environment, better for business (Nature Positive Plan).

1.56The Nature Positive Plan addresses the recommendations from the independent review led by Professor Graeme Samuel AC (the Samuel Review) and considers the findings from the State of the Environment 2021 report.

1.57Reforms to the EPBC Act will be guided by three essential principles:

Delivering better environmental protection and laws that are nature positive

Speeding up decisions and making it easier for companies to do the right thing

Restoring integrity and trust to systems and environmental laws.[53]

1.58This large-scale reform is part of a longer process of consultation and discussion to improve Australia’s environmental legislation. The committee does not support piecemeal amendments which restrict public engagement with Australia’s environmental legislation.

1.59The committee recommends that the Environment Protection and Biodiversity Conservation Amendment (Reconsideration of Decisions) Bill2024 not be passed.

Senator Karen Grogan

Chair

Footnotes

[1]Journals of the Senate, No. 138, 10 October 2024, p. 4166.

[2]Journals of the Senate, No. 139, 18 November 2024, p. 4219.

[3]Environment Protection and Biodiversity Conservation Amendment (Reconsideration of Decisions) Bill 2024, Explanatory Memorandum, p. 2.

[4]Parliamentary Joint Committee on Human Rights, Scrutiny Report 10 of 2024, 20 November 2024, p.3.

[5]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 14 of 2024, 20 November 2024, p. 59.

[6]Explanatory Memorandum, p. 2. Section 78 of the EPBC Act provides for the reconsideration of decisions made under subsection 75(1) and 77A(1).

[7]The Minister may determine that the action is not a ‘controlled action’, or not a controlled action if undertaken in a particular manner. The Department of Climate Change, Energy, the Environment and Water (DCCEEW) stated that a ‘controlled action is an action that is prohibited without approval under Part 9 for the purposes of a provision of Part 3. Part 3 prohibits the taking of an action that has a significant impact on a matter protected by a provision of Part 3, known as a controlling provision’. Other protected matters include some other actions involving Commonwealth land or Commonwealth Heritage places overseas. DCCEEW, Submission 11, p.2.

[8]DCCEEW, Submission 11, pp.2–3.

[9]Explanatory Memorandum, p. 2.

[10]Senator the Hon Richard Colbeck, Senate Hansard, 8 October 2024, p. 41.

[11]Senator the Hon Richard Colbeck, Senate Hansard, 8 October 2024, p. 41. Section 78 of the EPBC Act contains provisions for the reconsideration of decisions.

[12]Australian Marine Conservation Society (AMCS), Submission 3, Attachment 1, p. 2. The former Minister decided that the action was not a controlled action under sections 75 and 77A of the EPBCAct.

[13]Australian Government, Marine Farming Expansion, Macquarie Harbour, Tasmania (EPBC2012/6406), p. 2.

[14]AMCS, Submission 3, Attachment 1, p. 1. The request related to EPBC referral no. 2012/6406. The Controlled Action Decision outcome was that the action was not a controlled action under the EPBCAct. This is discussed below.

[15]AMCS, Submission 3, Attachment 1, p. 1. The request also included that the Minister direct DCCEEW to investigate compliance with the Particular Manner Notice requirements attached to the decision, and direct DCCEEW to investigate whether the finfish farming currently undertaken in Macquarie Harbour is the same as the action.

[16]Senator the Hon Richard Colbeck, Senate Hansard, 8 October 2024, p. 41.

[17]Explanatory Memorandum, pp. 2–3.

[18]Item 5 of the bill.

[19]Explanatory Memorandum, p. 5.

[20]Item 7 of the bill.

[21]Item 8 of the bill.

[22]Item 9 of the bill.

[23]Tasmanian Forest Products Association, Submission 2, p. 1; Tilt Renewables, Submission 4, p. 1; Clean Energy Investor Group (CEIG), Submission 7, p. 1; Santos, Submission 19, p. 3; Australian Airports Association, Submission 21, p. 1; Minerals Council of Australia, Submission 22, p. 2.

[24]Tilt Renewables, Submission 4, p. 1.

[25]Senex Energy, Submission 18, p. 1.

[26]CEIG, Submission 7, p. 1.

[27]Tilt Renewables, Submission 4, p. 1; CEIG, Submission 7, pp. 1–2

[28]Santos, Submission 19, p. 2.

[29]Australian Forest Products Association (AFPA), Submission 12, p. 4.

[30]Business Council of Australia, Submission 16, p. 1.

[31]Humane Society International Australia (HSIA), Submission 5, p. 1.

[32]AMCS, Submission 3, p. 2.

[33]Senator the Hon Richard Colbeck, Senate Hansard, 8 October 2024, p. 41; Environmental Justice Australia (EJA), Submission 9, p. 2.

[34]AMCS, Submission 3, p. 2.

[35]Conservation Council ACT Region, Submission 13, p. 2; EJA, Submission 9, p. 7.

[36]The Australia Institute Tasmania, Submission 17, p. 1.

[37]Institute of Public Affairs (IPA), Submission 6, p. 2.

[38]IPA, Submission 6, p. 2.

[39]Wilderness Society, Submission 8, p. 2.

[40]EDO, Submission 14, p. 6.

[41]AMCS, Submission 3, p. 2.

[42]Australian Conservation Foundation (ACF), Submission 10, p. 2.

[43]Bushfire Survivors for Climate Action, Submission 1, p. 4.

[44]AMCS, Submission 3, p. 2.

[45]HSIA, Submission 5, p. 3.

[46]Wilderness Society, Submission 8, p. 4.

[47]EDO, Submission 14, p. 4.

[48]BirdLife Australia, Submission 15, p. 3.

[49]EJA, Submission 9, p. 3.

[50]ACF, Submission 10, p. 3.

[51]s78(3), EPBC Act.

[52]Department of Climate Change, Energy, the Environment and Water (DCCEEW), Submission 11, p.2.

[53]Australian Government, Nature Positive Plan: better for the environment, better for business, p. 7.