I know that many WEPA members have been following with some hope the progress of the 2020 statutory review of Australia’s Environment Protection and Biodiversity Conservation (EPBC) Act undertaken by Professor Graeme Samuel AC (Samuel, G., 2020)^[1].

However, the Morrison Government has taken an approach that ignores the work of Professor Samuel and pushes ahead with two pieces of legislation to fast track development approvals and devolve responsibility for environmental protection to the states.

Simplifying development approvals and devolving responsibilities to the states without clear and binding environmental standards cannot deliver the consistent results required to adequately protect and conserve endangered plants, animals and ecosystems across all states and territories. Doing so without oversight and enforcement of appropriate standards is asking for trouble. We only have to look at the multiplicity of interstate issues surrounding the Murray-Darling river system to see what results from inconsistent environmental standards and a lack of enforcement of standards.

The situation has reached a delicate stalemate in the Senate with the Government prevented from pushing through its preferred reforms to the EPBC Act by the opposition parties and three crossbench senators. The bills currently before the Senate, which the Government does not have the numbers to pass, would further weaken the already crippled federal environmental protection laws.

Over the past twenty-two years of the EPBC Act’s existence, the party-political process has bedevilled the development of strong and effective environmental protection laws in Australia. During these twenty-two years, seven Prime Ministers have had responsibility for Australia’s environmental management and the EPBC Act. Following is a briefish summary of the story so far.

Right from the start, the EPBC Act had a difficult gestation. It was June 1999 and the Howard Government was doing deals with the Democrats to get their contentious Goods and Services Tax (GST) bill through parliament. Also with the support of the Democrats, the Government’s EPBC proposals were passed. In doing so, hundreds of amendments from Labor and the Greens were rejected. Resulting from this highly politically-charged process, the overall aims of the Act were quite vaguely defined. While the Act does include goals, such as ecologically sustainable development, in an attempt to appease as many of the major players as possible, it expresses them in such ambiguous language that it leaves decision-makers free to deal with them only superficially if required.

After five years of operation, in 2005 the Australia Institute undertook an evaluation (Macintosh, A. and Wilkinson, D., 2005)^[2] and found that the EPBC Act’s environmental assessment and approval (EAA) process had failed to produce any noticeable improvements in environmental outcomes. The evaluation concluded:

“In five years, the EAA provisions have been responsible for stopping only two activities out of potentially thousands and the conditions that have been imposed on developments under the regime have largely been ineffectual, unenforceable or a mirror of those already imposed under other processes…

…since the EAA regime commenced, the condition of Australia’s natural and cultural heritage has continued to decline and the EAA provisions have not made a noticeable contribution to stopping or reversing this trend.”

The first of the ten-year statutory reviews required by the EPBC Act took place in 2009, led by Dr Allan Hawke, a former head of several commonwealth departments and former Chancellor of the Australian National University. Assisted by an expert panel that engaged extensively with stakeholders, Dr Hawke laid out an integrated nine-point plan, which included seventy-one recommendations. Unfortunately, neither the plan nor the recommendations were proceeded with.

In 2010, following the release of the Hawke Report, there was significant political turmoil in Canberra, culminating in a federal election, a minority government and a change of environment minister. The new minister, Tony Burke, announced a detailed government response to the Hawke Review in 2011. However, in the ensuing period, the minority Gillard Government decided that there wasn’t an opportunity to get any of their proposed changes to the EPBC Act through and so deferred them to the next parliament.

The next parliament brought a change of government and, in 2013, the incoming Abbott Government pursued a controversial “one-stop-shop” EPBC approvals process that had the potential to not only allow states to undertake the environmental assessments for major projects, but paved the way for the states to also carry out the approvals for these projects, without adequate checks and balances. The Abbott legislation was defeated in the Senate in 2013. However, its core principles have been resurrected to form the basis of the Morrison Government’s environmental legislation currently before the Senate.

In June 2020, the Commonwealth Auditor-General released an extremely critical report (Australian National Audit Office. 2020) ^[3] on the federal Department of Agriculture, Water and the Environment’s project assessments under the EPBC Act. The report found that the Department had failed to protect endangered wildlife and manage conflicts of interest in development approvals, that seventy-nine percent of approvals were non-compliant or contained errors and that most decisions were not made within statutory timeframes.

The reality is that, in its twenty-two year history, the EPBC Act has never been properly funded, going all the way back to the beginning, when Howard Government Environment Minister Senator Robert Hill failed to secure funding for the new law. For this reason, there are lengthy delays in EPBC approval processes. As of this year, only forty-nine percent of threatened species have a current EPBC recovery plan. As a consequence of the lack of funding, several major mechanisms within the existing Act have been little used, including the provision of grants for improved environmental information gathering.

So, here we are now in 2021. The Samuel Report was tabled in Parliament on 28 January this year. Yet, before the Morrison Government has even released a formal response to the report, it is desperately trying to wash the Government’s hands of almost all Commonwealth responsibilities for environmental protection and conservation. The legislation before the Senate proposes to hand these responsibilities back to the states without negotiating adequate standards or establishing ongoing oversight. This will perpetuate the current situation where conflicting and inconsistent state-based laws make environmental protection completely ineffective.

The Samuel Report makes thirty-eight recommendations within a package of reforms to the EPBC Act. The reform package includes twenty-two priorities for immediate action, which are considered necessary to resolve the fundamental inadequacies that have led to Australia’s escalating environmental decline.

In summary, the priorities include:

• Implement legally binding national environment standards that clearly protect wildlife, critical habitat and world and national heritage areas.
• End dangerous exemptions for destructive practices like native forest logging.
• Establish an independent regulator to enforce our laws fairly and transparently to protect nature and communities, not vested interests.
• Work with First Nations people to properly protect cultural heritage and recognise and meaningfully consider traditional ecological knowledge in conservation decisions.
• Strengthen community rights, so we can all meaningfully participate in decisions about protecting our environment and take action to challenge bad or poorly made decisions.

The Samuel Report is perfectly clear about one thing – the system is broken and only the fundamental reform of our national environment laws will turn around Australia’s extinction crisis and safeguard our iconic natural and cultural heritage.

What is required is a bold and dramatic change in environmental legislation at all levels of government, as has been proposed in the Samuel Report. The Commonwealth must ensure that Australia, as a whole, takes decisive action to protect our unique ecosystems and native species. The existing confusion of federal, state and territory laws and policies that have failed to protect our wildlife and preserve our biodiversity over decades must be replaced to ensure that our natural environment is healthy into the future and resilient to sudden environmental crises like the 2019-2020 summer bushfires.

If only the Morrison Government could see things from a similar perspective. In the current political climate, without a major election commitment, it appears that, at best, all we will see from the Samuel Report is low-cost incremental change, which will spell disaster for the environment.

What then are we to do? With a federal election likely by mid-May 2022, now is the time to tell our federal members of parliament that we care deeply about our natural ecosystems and our unique plants and animals. It is our federal government’s responsibility to care as much for the natural environment as for the built environment, and as much for our native species as for the human species. We should tell our MPs that our vote depends on it.

Garth Newton
22 August 2021

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Garth Newton is a WEPA member, a former educator and is currently on the leadership team of the Wilderness Society’s Sydney North community organising team. He is also an accredited community organising trainer for the Wilderness Society’s Movement for Life program.

[1] Samuel, G., 2020. Final Report. [online] Independent Review of the EPBC Act. Available at: https://epbcactreview.environment.gov.au/resources/final-report [Accessed 22 August 2021].

^[2] Macintosh, A. and Wilkinson, D., 2005. Environment Protection and Biodiversity Conservation Act: A Five Year Assessment | The Australia Institute. [online] The Australia Institute. Available at: <https://australiainstitute.org.au/report/environment-protection-and-biodiversity-conservation-act-a-five-year-assessment/> [Accessed 22 August 2021].

[3] Australian National Audit Office. 2020. Referrals, Assessments and Approvals of Controlled Actions under the Environment Protection and Biodiversity Conservation Act 1999. [online] Available at: https://www.anao.gov.au/work/performance-audit/referrals-assessments-and-approvals-controlled-actions-under-the-epbc-act [Accessed 22 August 2021].