EPBC Act review update: A power shift on the horizon?

Introduction

Amid COVID-19 and some of the greatest environmental challenges Australia has experienced, including the recent bushfire season, the Federal Government introduced the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (Bill), which fell under heavy scrutiny from opposing parties and individual representatives.

The Bill followed shortly after the release of an interim report produced as part of the review (Samuel Review) of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and led by Professor Graeme Samuel (Interim Report). For earlier updates on the proposed changes, see our previous articles here and here.

As a guide to the findings underpinning the Interim Report, Professor Samuel notes in his foreword that:

“the EPBC Act does not position the Commonwealth to protect the environment and Australia’s iconic places in the national interest. The operation of the Act is dated and inefficient, and it is not fit to manage current or future environmental challenges, particularly in light of climate change.”

In this article, we look at the issues arising from the proposed Bill.

Summary of key points

The Bill was introduced on 27 August 2020 following the release of the Interim Report in June. Surprising to many was the exclusion of the National Environmental Standards (NES) framework, proposed in the Interim Report and generally welcomed by stakeholders. Independent Zali Steggall introduced proposed amendments containing the NES, amendments which were not debated before being passed by the lower house^[1] (Steggall Amendment). The Steggall Amendment can be found here.

The Bill will now be debated in the Senate during parliamentary sitting dates in October 2020, and it is expected that any revision will contain the NES.

The Interim Report

The Interim Report was released in June 2020 and set out proposals for the reformation of the EPBC Act. The author of the Interim Report, Professor Samuel noted: 

“The foundation of the (interim report) was that there is too much focus on process and not enough focus on outcomes and that should be changed entirely.”

An issue highlighted in the Interim Report is the EPBC Act lacks the ability to address complex environmental issues and environmental crises. The Interim Report suggests that serious reform is needed, including new NES to be the base of a consistent and efficient system.

In particular, some of the key recommendations include:

• the Commonwealth should continue to focus on existing areas of responsibility with no expansion to regulate new environmental matters
• new, legally enforceable NES 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 NES 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
• a coherent framework to monitor and evaluate the effectiveness of the EPBC Act is needed, including revamped State of the Environment reporting
• 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.^[2]

Professor Samuel’s Final Report, including recommendations to the government, is due to be delivered to the Minister for the Environment by 31 October 2020.

A link to the Interim Report can be found here.

The proposed Bill

On 27 August 2020, the Federal Government released the Bill. The Bill proposes that the powers under the EPBC Act be devolved to the states and territories by way of a bilateral agreement. Consequently most proposed amendments centre on changes to the bilateral agreement provisions.

While devolving powers to the states and territories was recommended in the Interim Report, it must be noted that the recommendation was that this should only take place with new NES and an independent regulator, neither of which appear in the Bill.

Bilateral agreements

The questions that arise under the new Bill is how bilateral agreements will be dealt with in practice and how states, territories and the Commonwealth will negotiate individual bilateral agreements.

What is currently proposed is that bilateral agreements will operate to allow states and territories to assess and determine the approval of projects. The Bill will also provide power to the Commonwealth to allow it to step in and make a decision where a state or territory has left an assessment, if there is a partially completed assessment, or a bilateral agreement is suspended or cancelled.

The Bill will also remove the ‘water trigger’ allowing states and territories to approve bilateral agreements which fall under this trigger. 

One difficulty bilateral agreements have in practice is that changes in states and territories processes can impact assessment and approval. The Bill has included an amendment to increase the flexibility around these processes.

Other issues in the Bill

In addition to the issues discussed above, it is relevant to note that:

• there is no proposal for a ‘climate change trigger’ in the Bill although there was discussion in the Interim Report of a broad-based approach to climate change and lowering greenhouse gas. The Steggall Amendment proposes it as a part of the NES
• Indigenous heritage and culture was highlighted as a priority in the Interim Report, however, the Bill does not propose any changes in this regard. The Steggall Amendment contains a reference to “Indigenous engagement and decision-making”
• there is no proposal for an independent regulator in the Bill.

At this point in time, media reports indicate that Labor and the Greens opposed the Bill and will oppose if the NES framework is not included, with the Environment Minister Sussan Ley foreshadowed to include the amendments.^[3]

Conclusion

The Bill presented in its current form does not reflect the recommended changes proposed in the Interim Report. The Bill will be debated in the Senate in October parliamentary sittings, with the likely inclusion of the NES, though the form and substance are not yet known.

A full copy of the Bill and Explanatory Memorandum can be found here.

We will provide further updates as the matter progresses.

Authors: Breellen Warry, Clara Klemski-Edwards & Olivia Lawrence

^[1] Cox, Lisa, ‘Australian Government gags debate to ram environmental law changes through lower house’, The Guardian (online), 3 September 2020
^[2] Media statement: Professor Graeme Samuel AC releases Interim Report, 20 July 2020
^[3] Cox, Lisa, ‘Australian Government gags debate to ram environmental law changes through lower house’, The Guardian (online), 3 September 2020

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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