The Albana government is reviewing national environmental laws. He wants to make changes to protect the environment and biodiversity. Saving (EPBC) The legislation passed through parliament before the end of the year.
But should they be?
Australia's environment is deteriorating and changes are designed to reverse this trajectory. However, lawyers, experts and advocates say the legislation is full of loopholes and problems.
Much has been said about whether the government will reach an agreement with the Greens or the Coalition, but less about the more important question: will these bills help solve Australia's biodiversity crisis?
Here are five problem areas.
1. Excessive ministerial power
Australia's nature laws have been widely criticized for giving too much power to the current minister to decide whether to proceed with development and what conditions apply to ensure the protection of threatened plants, animals and ecosystems.
In my 2020 revision of the EPBC ActGraham Samuel, the former head of the competition watchdog, said the “unfettered discretion” given to ministers to interpret laws was a serious problem that had led to bad consequences for Australia's environment.
Experts and activists say there are positive elements to the new legislation. These include requirements that developments provide a “net benefit” to the environment and that projects with “unacceptable impacts” must be rejected. Projects will be assessed based on new, legally binding national environmental standards.
But they say this is undermined because the minister will still have significant powers to interpret whether those requirements have been met and whether they apply at all. That is, the legislation does not solve the problem of ministerial discretion.
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A legal briefing from Environmental Justice Australia and the Environmental Defenders Office warns that if the law is passed in its current form, it would “exacerbate” the shortcomings of the existing EPBC Act and lead to bad consequences for nature by “increasing” the scope of ministerial powers rather than limiting them.
“Unfortunately, the bills retain a high degree of discretion for the minister, potentially undermining the power the laws might have to actually protect nature,” said EDO deputy director of policy and legislative reform Rachel Walmsley.
This is done through subjective and weak language. For example, rather than requiring approval of a project only if it clearly meets national standards, the minister must decide whether they are “satisfied” that the project “does not contravene” them.
Whether the impacts of a development are unacceptable or whether the project provides a net environmental benefit is also at the discretion of the Minister. The words “The Minister is pleased” appear hundreds of times in legislation.
Concerns have also been raised about new liberation this would allow the minister to approve a project that violated the laws of nature if it was in the “national interest.”
Nicola Rivers, chief executive of the EJA, said if the government was serious about stopping extinction, the level of discretion could be set through simple amendments.
“You just need to remove the words 'Minister is satisfied' from those key provisions that [otherwise] won’t work the way they should work,” she said.
2. Lack of expertise on climate, forestry and indigenous peoples.
One of the main criticisms of the law is what it lacks.
Under existing laws, logging covered by a regional forest agreement between the federal and state governments is effectively exempt from federal law protecting endangered species.
The Albana government has promised to remedy this situation by applying new national environmental standards to the agreements. But the industry exception remains in the bills before Parliament.
Another point on which Samuel's review was scathing was the failure of successive governments to use the knowledge of Indigenous Australians to improve environmental management.
Under the guidance of a scientist Biodiversity The council says the new legislation does not significantly address the issue and does not ensure Indigenous participation in decision-making. The promised standard for engagement with indigenous peoples has also not yet been published.
Environment Minister Murray Watt has so far published only one draft standard on issues of national environmental significance, such as threatened species and World Heritage sites. He promised to prepare a second draft of the compensation standard before the bills are voted on. Others are “work in progress,” but the legislation does not specify which standards are required or by what time frame.
The failure of national environmental laws to adequately address climate change will continue under proposed laws. Developers will have to disclose the project's internal emissions. But anything substantive that would require an assessment of climate harm is “missing”, says Brendan Sides of the Australian Conservation Foundation.
3. Problematic compensation system
Environmental offsets allow developers to compensate for the damage they cause by restoring the same species' habitat or ecosystem in another location.
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This policy faces problems, including that promised compensation is sometimes never paid or is insufficient to compensate for environmental losses caused by development.
The legislation would create a government “rehabilitation contribution” fund into which developers could contribute rather than seeking and securing compensation themselves.
Legislation will also lift the ban for credits included in the federal environmental repair market.
Experts say the proposals would create problems that have led to serious environmental and integrity failures in state-level compensation schemes, a Guardian Australia investigation has found. raised several requests in New South Wales.
New South Wales Auditor General found a similar government-run fund had poor oversight and failed to adequately provide the necessary compensation intended to help the environment.
The government has said its fund could provide “landscape-scale” restorations, but experts say it would allow developers to “pay to destroy” nature without any guarantee that compensation obligations will be met.
The proposed restoration contribution fund would also relax “comparable cost” rules, which require offsets to provide environmental benefits to the same species or ecosystems impacted by development.
Professor Brendan Wintle, the Council's lead adviser to the Biodiversity Council, called it “absurd”. “You're essentially saying you can trade koalas with a land snail in Tasmania or a small plant in north Queensland.”
4. Simplified assessment reduces the number of consultations
The Bill removes the three methods for assessing projects under Australian environmental legislation and replaces them with a single, streamlined process under which projects are approved within 30 days.
The government wants to encourage developers to prepare environmental documentation in advance to reduce assessment delays – especially as Australia tries to accelerate the uptake of renewable energy.
But Kirsty Howie of the NT Environment Center said grassroots organizations were concerned it reduced transparency, “forced” public consultation and had no restrictions on the size and types of projects that could be fast-tracked. Public consultation will be limited to the short period when a project is first submitted to government to decide whether and what type of assessment it requires.
Georgina Woods of the Lock the Gate Alliance said the optimization plan could lead to “quick and dirty approval of all types of development, including mining and fracking, without any public consultation.”
5. Vague definition of unacceptable impact
One of the government's key reforms is to define “unacceptable impacts” on nature, which could prevent events from becoming too destructive.
Experts hailed it as a positive step, but fear its potential effectiveness is weakened in the current form of legislation by vague and subjective concepts such as whether development could “seriously impair the viability” of a species or ecosystem or “cause serious harm to critical habitat.”
Wintle said such language lacks clear definitions or thresholds (such as determining how much destruction of an ecosystem or a species' habitat would be considered unacceptable) and is again open to the department's discretion.
He said an objective set of tests that would clarify the definition of unacceptable exposure would be better for the environment and industry.
“Businesses won’t waste time on things that don’t have to get past the first hurdle,” he said.
