Much at stake in reforms to EPBC Act

We (Murrindindi, Victoria, Australia, Earth) face a triple crisis: global warming, biodiversity loss, global economy failure. 

It is huge: how to understand? how to engage? A useful principle here is: address the micro / immediate / local issues in ways which also contribute to redressing the macro / long term / global issues.  

The EPBC Act

In this blog (here, today, in Murrindindi), our focus is on the Reform of the EPBC Act (the Commonwealth Environmental Protection and Biodiversity Conservation Act). The EPBC Act links the different jursdictions - local, state, national, and global - and it ramifies across global warming, biodiversity loss and a failing global economy.  

The reform of the EPBC Act is a critical focus for understanding and engaging. 

One of the redeeming features of the original EPBC Act was the requirement for ten yearly reviews. The first statutory review (the Hawke Review) reported in October 2009, although many of its recommendations have not been implemented. The final report of the second Independent Review of the EPBC Act  (the 'Samuel Report') was released in Jan 2021.

In December 2022 the Albanese Government released its Nature Positive Plan: better for the environment, better for business. This incorporates its response to Samuel but also sets forth its broader agenda for environmental policy. See also the overview of the 23-24 budget provisions for environmental management.

The Nature Positive Plan remains the most detailed account of the proposed reforms and should be the starting point in assessing this package.

The reform of the EPBC Act is critical for the implementation of the Nature Positive Plan. An overview of the Government's EPBC Act reform plan is provided on the DCCEEW (Department of Climate Change Energy, Environment and Water) website (here).  The key elements of the plan as presented by DCCEEW are: 

The creation of Environment Information Australia was not foreshadowed in the Nature Positive document in Dec 2022. At that stage a new Data Division within the Department was envisaged.

DCCEEW commenced consultations regarding EPBC Act reform with identified stakeholders late in 2023 and then presented two public webinars in November. However, no detail regarding the proposed reforms has yet been published. DCCEEW indicates that  the current consultation will end on 30 March 2024.   

Key issues

While the draft legislation is still to see light of day there have been a number of expert assessments published. 

In a brief piece in The Conversation (17 November 2023) five distinguished environmental scientists listed five things we need to see in our new environmental laws. These are: 

  • A climate trigger,
  • Protection of sufficient and connected habitat, 
  • Clear objectives and measurement of outcomes, 
  • Independent umpire,
  • A voice for country and for culture.

The Environmental Defenders Office (27 July 2023) published Urgency and ambition more important than ever for national nature law reform.  This analysis highlights

  • the need for conservation focused environmental standards,
  • the need for a well-resourced, empowered, independent environmental protection agency,
  • the rights of First Nations communities to engage in the reform process,
  • the importance of strong community rights and consultation standards,
  • caution regarding 'biodiversity offsets',
  • the importance of addressing both climate change and biodiversity loss, and
  • inclusion of water protection and forests.

Environmental Justice Australia has also provided an initial analysis: It's time to get our new environmental laws right  (8 Dec 2022).  EJA highlights six critical issues which must be properly addressed: 

  • National environmental standards,
  • First Nations knowledges,
  • An independent and properly resourced EPA,
  • Inclusion of climate assessment and scope 3 emissions, 
  • Community enforcement,
  • Conservation planning, and 
  • No creative accounting. 

The Climate Council has called on the Albanese Government to pause all polluting project approvals until the Parliament has dealt with upcoming reforms to the EPBC Act. The Climate Council cites in particular the Woodside Pilbara gas processing facility and 22 fossil fuel projects which are waiting in the EPBC Act pipeline for approval.

Wilderness Society and 63 other concerned organisations  (16 Oct 2023) Reforms to the EPBC Act must enshrine a fair say for the community  The 64 organisations demand that the revised EPBC Act incorporate: 

  • The right to know—to access the information that authorities hold.
  • The right to participate—to have a genuine say in decision-making.
  • The right to challenge—to seek legal remedy if decisions are made illegally or not in the public interest.
  • The cultural and self-determination rights of First Nations, including to give or withhold their free, prior and informed consent.

The Climate Council (no date), in EPBC: Everything you need to know about fixing Australia's national environmental law, focuses on the importance of environmental law encompassing greenhouse gas emissions and global warming.  

See also note (expansion of the water trigger to unconventional gas) produced by Emily Gibson of the Parliamentary Library (29 Nov 2023) on the expansion of the Water Trigger in the context of the bills produced by Dr Sophie Scamps MP (Independent) and Senator Sarah Hanson-Young (Australian Greens).   

See also RFPG's earlier posting: the Commonwealth's "Nature Repair Market" is bad policy. 

Posted 27 Nov 2023
Edited 30 Nov 23