Federal Government rejects independent regulator recommendation in interim report into Australia’s environmental laws

July 20, 2020

Karen Sweaney

The Interim Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was released today. The long overdue report includes a number of recommendations and highlights the need for an independent regulator which the Federal Government has been quick to reject.

The Independent Reviewer, Professor Graeme Samuel establishes in his 124 -page interim report that the existing EPBC Act 1999 has become cumbersome and does not serve the interests of the environment or business and flagged legally enforceable "national standards" to stop the decline of Australia's natural environment.

Prof Samuel advised that “the Interim Report has been released part way through the Review as an opportunity to share and test thinking.

“The EPBC Act is ineffective. It does not enable the Commonwealth to protect and conserve environmental matters that are important for the nation. It is not fit to address current or future environmental challenges.

“The EPBC Act results in duplication with state and territory environment laws. The Commonwealth process for assessing and approving developments is slow, complex to navigate and costly for business. Slow and cumbersome regulation results in significant additional costs for business, with little appreciable benefit for the environment.”

Prof Samuel notes “New, legally enforceable National Environmental Standards should be the centrepiece of reform—setting clear and concise rules that deliver outcomes for the environment and enable development to continue in a sustainable way.”

Prof Samuel confirmed the health of Australia’s environment is in dire straits, and proposes many good ways to address this including calling for an independent regulator stating "an independent compliance and enforcement regulator, that is not subject to actual or implied political direction from the Government Minister, should be established.

"The regulator should be responsible for monitoring compliance, enforcement and assurance. It should be properly resourced and have available to it a full toolkit of powers."

Federal Minister of the Environment Sussan Ley has announced the Government will “prioritise the development of new national environmental standards, further streamlining approval processes with State governments and national engagement on indigenous cultural heritage.”

However, the Minister adds that while “the Commonwealth will take steps to strengthen compliance functions and ensure that all bilateral agreements with States and Territories are subject to rigorous assurance monitoring. It will not, however, support additional layers of bureaucracy such as the establishment of an independent regulator.”

Expressing his concerns on Minister Ley’s "cherry-picking" of recommendations, Honorary Associate Professor, Peter Burnett ANU College of Law, Australian National University notes in The Conversation “Environment Minister Sussan Ley immediately seized on proposed reforms that seem to suit her government’s agenda – notably, streamlining the environmental approvals process – and will start working towards them. This is before the review has been finalised, and before public comment on the draft has been received.

“This rushed response is very concerning. I was a federal environment official for 13 years, and from 2007 to 2012 was responsible for administering and reforming the Act. I know the huge undertaking involved in reform of the scale Samuel suggests. The stakes are far too high to risk squandering this once-a-decade reform opportunity for quick wins.”

And in the ABC the same concerns were highlighted “Environment Minister Sussan Ley immediately moved to rule out an "independent cop", which was policy taken to the last federal election by the Opposition.”

The ten key reform directions proposed by Prof Samuel include:

The Commonwealth should continue to focus on existing areas of responsibility with no expansion to regulate new environmental matters.
New, legally enforceable National Environmental Standards should be established to deliver ecologically sustainable development. Focused on outcomes rather than process.
Streamlining and greater efficiency through devolution in a way that provides community confidence, with National Environmental Standards as the foundation to set the outcomes needed regardless of who the decision maker is.
Strong and transparent assurance to ensure devolved decisions deliver the intended outcomes.
Australia’s Indigenous cultural heritage laws need to be reviewed and more work is needed to support better engagement with Indigenous Australians and to respectfully incorporate Traditional Knowledge of Country in how the environment is managed.
Build trust in the system through increased transparency of information and decision-making to reduce the need to resort to court processes to discover information. Legal challenges should be limited to matters of outcome, not process.
A quantum shift in the quality of information is needed, so that the right information is available at the right time for the community, proponents and decision-makers. This will deliver better decisions, and faster and lower cost assessments and approvals.
A coherent framework to monitor and evaluate the effectiveness of the EPBC Act is needed, including revamped State of the Environment reporting.
Restoration of the environment must be a focus. Available habitat needs to grow to be able to support both development and a healthy environment. Explore ways to accelerate environmental restoration such as markets and co-investing with the philanthropic and private sectors.
An independent compliance and enforcement regulator that is not subject to actual or implied political direction. It should be properly resourced and have a full toolkit of powers.

Assoc Prof Burnett also notes in The Conversation “even though Samuel proposes a two-stage process, with interim standards as the first step, these initial standards risk being too vague. And once they’re in place, states may resist moving to a stricter second stage.

“To take one example, the prototype standards in Samuel’s report say approved development projects must not have unacceptable impacts on matters of national environmental significance. He says more work is needed on the definition of “unacceptable”, adding this requires “granular and specific guidance”.

“I believe this requires standards being tailored to different ecosystems across our wide and diverse landscapes, and being specific enough to usefully guide the assessment of any given project. This is an enormous task which cannot be rushed. And if Samuel’s prototype were adopted on an interim basis, states would be free, within some limits, to decide what is “unacceptable”.”

The Wilderness Society also continues to highlight Australia’s weak environment laws and government inaction that have led to Australia becoming a world leader in extinction and deforestation.

A statement on their website notes “Right now, the Government is running a once-in-a-decade review of Australia’s failed national environment laws. This is a chance to deal with Australia’s appalling extinction record by bringing in strong new national nature laws that work and independent watchdog to enforce them.

“The Environment Protection and Biodiversity Conservation Act 1999 (the EPBC) is Australia’s national environment law. It has a very important job. The EPBC is meant to stop iconic threatened species like the Tasmanian devil, koala and Leadbeater's possum from going extinct, safeguard our natural places and ensure all governments work together to protect Australia’s environment and natural diversity of life.

“Having strong, effective environment laws is vitally important as right now Australia leads the world in mammal extinction and is second only to Indonesia for biodiversity loss. We’re seeing the increasing impacts of climate change on our communities and landscapes, including the catastrophic 2019-2020 bushfires and the recent bleaching events on the Barrier Reef.

"At the heart of the problem is this: our national environment laws are not currently working to protect the environment.”

Minister Ley advised that the Federal Government will commit to the following priority areas on the basis of the interim report:

Develop Commonwealth led national environmental standards which will underpin new bilateral agreements with State Governments.
Commence discussions with willing states to enter agreements for single touch approvals (removing duplication by accrediting states to carry out environmental assessments and approvals on the Commonwealth’s behalf).
Commence a national engagement process for modernising the protection of indigenous cultural heritage, commencing with a round table meeting of state indigenous and environment ministers. This will be jointly chaired by Minister Ley and the Minister for Indigenous Australians Ken Wyatt.
Explore market based solutions for better habitat restoration that will significantly improve environmental outcomes while providing greater certainty for business. The Minister will establish an environmental markets expert advisory group.

In line with the interim report findings, the Commonwealth will maintain its existing framework for regulating greenhouse gas and other emissions, and would not propose any expansion of the EPBC Act in this area.

Prof Samuel now intends to engage in targeted consultations with stakeholders throughout July, August and September. These consultations will focus on progressing the key reform directions proposed in the Interim Report, including refining the National Environmental Standards.

Prof Samuel intends to convene collaborative discussions with environment, indigenous, agriculture and business groups, and leading academics. These discussions will involve stakeholders who had provided substantive contributions to the Review and have indicated a willingness to collaborate to shape a reform pathway. Consultation with state and territory governments will also be undertaken.

Prof Samuel’s Final Report, including recommendations to government, is due to be delivered to Minister Ley by 31st October 2020.

All Australians are invited to have a say about the reform directions in the Interim Report. To read the Interim Report and have your say visit https://epbcactreview.environment.gov.au/.

Image top: Barrier Reef coral bleaching and image above of endangered Leadbeater Possum

About the author

Karen Sweaney

Co-founder and Editor, Australasian Leisure Management

Artist, geoscientist and specialist writer on the leisure industry, Karen Sweaney is Editor and co-founder of Australasian Leisure Management.

Based in Sydney, Australia, her specific areas of interest include the arts, entertainment, the environment, fitness, tourism and wellness.

She has degrees in Fine Arts from the University of Sydney and Geological Oceanography from UNSW.

search ausleisure

AusLeisure

Latest News