EPBC (Standards and Assurance) Bill - 22/06/2021

22 June 2021


I rise today to speak on the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021. Labor will not support the weakening of the environmental laws. We're in the middle of a biodiversity crisis, an extinction crisis, and we should be doing so much better than this. We should be strengthening environmental laws, not weakening them. As the member for Griffith, our shadow minister for the environment, said, we're very happy to work with the government on getting these changes right if they will scrap this bill and come back with something that delivers stronger protections for our precious natural environment; a better solution for businesses, who are waiting too long to get approvals through; and a tough cop on the beat to ensure that the decisions that are made have proper compliance attached to them.

We have a real opportunity with the Samuel review—the 10-year review of the EPBC Act—to actually address some of the problems with these laws, which have been shown not to deliver in the way that they should. Professor Graeme Samuel said in his final report:

Australia's natural environment and iconic places are in an overall state of decline and are under increasing threat. The pressures on the environment are significant—including land-use change, habitat loss and degradation, and feral animals and invasive plant species. The impact of climate change on the environment will exacerbate pressures and contribute to further decline. In its current state, the environment is not sufficiently resilient to withstand these threats. The current environmental trajectory is unsustainable.

Those are very important words from Professor Samuel, words which we in this place should be listening to very carefully as we decide what sorts of laws we want and what sort of role we want for the Commonwealth in ensuring that our beautiful and precious natural environment here in Australia is protected into the future.

These words are a clear and succinct indication of what's at stake. Australia's natural environment and iconic places—the Great Barrier Reef, our national parks, Kakadu, alpine areas across the Great Dividing Range, unique cool-temperature rainforests in Victoria, ancient First Nations cultural sites, our world-renowned beaches and the Twelve Apostles, to name but a few—are at risk and the legislation designed to protect them, the EPBC Act, is not up to the job. And neither is this legislation. The Samuel review paints a bleak picture of what inaction to protect our environment means. It's a call for this parliament to act and, unfortunately, it's a call that's being ignored by the Morrison government. It's coalition partner, the Nationals, and the environment minister are all ignoring this important call. The measures in this act demonstrate this unequivocally.

Labor will not support this bill, and the reasons for this are outlined in Labor's dissenting report to the inquiry conducted by the Senate Environment and Communications Legislation Committee. This dissenting report was damning and, while critics may argue that this is unsurprising, it is my view that the dissenting report merely pulled together the huge body of evidence that demonstrates not only how bad this bill is but also how bad this coalition government is at due process and quality public administration. One such example highlighted in the dissenting report was the findings from June 2020 by the Auditor-General. The dissenting report summarised the Auditor-General's findings as follows:

most key decisions were being made outside statutory timeframes (with the proportion of referral, assessment method and approval decisions made within statutory timeframes decreasing from 60 per cent in 2014-15 to five per cent in 2018-19);

there had been a massive blowout in delays (with an average 116 day overrun of statutory timeframes for approval decisions, a 510 per cent increase from the average 19 day overrun in 2014-15); and

79 per cent of approvals were non-compliant or contained errors.

There's clearly a serious problem here—a serious problem that needs serious legislation to address it, and that is not what we have here in this bill. The dissenting report summarised the impact of this:

These administrative failures have real and significant adverse consequences for jobs and investment.

Obviously, the key concern here is that our natural environment is not being protected in the way that it should, but we also have a situation that's really bad for business and investment. We can have both; we can protect the environment and have a process that actually works for investors but, again, that's not what we have here. We would think that this government, for all their talk about the importance of the private sector, would actually want to address these issues which are putting a handbrake on investment. The Auditor-General's findings show that they're all talk and no action when it comes to red tape. We have a perverse situation where both the environment and business are losing out, and that means that Australians are losing out due to this government.

As the Labor senators who contributed to the dissenting report also observed, under-resourced decision-makers are at risk of making lower-quality decisions, leading to greater vulnerability to legal challenge. They noted that the audit report stated:

If the court finds that the decision is not compliant with the EPBC Act or otherwise subject to legal error, it can set the decision aside and require it to be reassessed. This result is costly for the department (which must conduct the assessment again) and the regulated entity (which loses certainty of approval and must delay any action until reassessment).

How have the Morrison government and Minister Ley allowed this to be the state of play when it comes to environmental protection and reasonably using our natural resources in Australia? It is damning and it should not be this way. Nonetheless, this amendment and previous amendments to the EPBC Act presented to this parliament over the last eight years of this coalition government show that the government intends to make our system of environmental protection, as governed by the EPBC, much worse than it already is.

Labor senators recommended that the government withdraw this bill and instead proposed, for the parliament's consideration, an interconnected suite of reforms that provide for stronger environmental protections to address the overall state of decline and the state of increasing threat; establish a tough cop on the beat to help restore trust; and support efficient and effective decision-making under the EPBC Act in the interests of avoiding unnecessary delays to jobs and investment. The recommendations put forward by the committee are simple in their expression, but indicate how inadequate the government's ambition for reform is.

We must have strong environmental protections in this country. Our natural environments are at risk or already seriously degraded. Not only should we be protecting our natural environment, but we should be putting more resources into maintaining and rehabilitating them. A tough cop on the beat has already been directly called for in the Samuel review. It is sorely needed because, even if we reform the EPBC laws, we need to ensure that they are applied rigorously. This is not happening now and it makes a mockery of having a regulation scheme for environmental protection in the first place. The final recommendation, to support efficient and effective decision-making under the EPBC Act to avoid delays, is vital. We know this Morrison government has decimated the capability of the public service during its eight years in office. It is an abomination that a country like Australia can legislate but then fail to properly resource the administration of that legislation.

I turn now to what this bill is actually proposing to do. The bill will establish a framework for the making, varying, revoking and application of national environmental standards and establish an Environmental Assurance Commissioner to undertake transparent monitoring or auditing, or both, of the operation of bilateral agreements with the states and territories and Commonwealth processes under the Act for making and enforcing approval decisions. This bill comes alongside the streamlining environmental approvals bill, also known as the Abbott 2.0 bill because it effectively replicates the Abbott government's failed one-stop-shop policy of 2014. That's all we have here, a rehash of something from 2014. These bills are the government's response to the second 10-yearly statutory review conducted by Professor Samuel, which was received by Minister Ley in October 2020. While the government has proposed national environmental standards, it is laughable to say that they align with what Professor Samuel has proposed.

The standards recommended in the Samuel review are much more detailed and considerably more protective than the standards proposed by the government. The Samuel review's overarching national standard refers to important concepts such as: the principle of non-regression—that is, no backsliding in environmental protections; addressing cumulative impacts; and decisions being based on the best available information, compared to adequate information in the government's proposed standards. These concepts all appear to be absent from the government's proposed standards, and they should be condemned for this. The bill provides that there is to be an Environmental Assurance Commissioner which is established as an independent statutory position within the department. The minister said:

The Environment Assurance Commissioner will be appointed by the Governor-General, will be independent and will not be subject to directions by the minister.

Conservation stakeholders are critical of the bill's model because of the inability of the proposed commissioner to investigate individual decisions related to projects, labelling it effectively toothless. When introducing the bill the minister said:

The Environment Assurance Commissioner will not have a role in monitoring or auditing individual decisions. It is not a second decision-making body, and it is not a replacement for, or a precursor to, legal review processes for decisions.

The Commonwealth should always have a role in environmental protection. They must always be able to step in and protect our vitally important things—the Great Barrier Reef, Kakadu, our national parks. It's so important that the Commonwealth has that role, and Labor will not support anything that devolves that role to the states without stronger compliance around these laws. Environmental groups in my electorate, including the ACT Conservation Council, have raised this issue with me specifically. They question why the government would establish an assurance body that has no powers to undertake assurance. This is a mind-boggling piece of policy developed by the Minister for the Environment.

Reform of the EPBC was a significant policy commitment for Labor at the last election, including bringing climate change into the laws for the first time. Labor committed to establishing an environmental protection agency which would manage development approvals, ensure compliance with environmental law, collect data and evaluate progress. Labor has consistently called on the Morrison government to establish a genuinely independent cop on the beat, and the Samuel review recommended the establishment of a new independent statutory position of environment assurance commissioner to provide oversight, be free from political interference and responsible for public reporting on the performance of the Commonwealth and accredited parties. It is obvious from this bill that the government's commissioner is weaker than both the options proposed by Labor at the last election and proposed by Professor Samuel. It is weak and it will not do the work that we need an assurance body to do—that is, to protect the environment.

The bill also gives the minister the power to make national environmental standards for the purposes of the act. The bill doesn't include a set of proposed standards within it, but rather provides the framework for a set of standards to be implemented. We know from media reporting that the leaked standards are not up to the job of protecting our environment. According to the explanation memorandum, when a national environmental standard is first made it will be treated as an interim standard until it has undergone its first review, with the first review to be undertaken within two years of the standard commencing. The government's proposal is to establish standards that replicate the status quo and then, over subsequent years, seek to improve them. Needless to say, this point makes me very nervous as past behaviour indicates that we cannot trust this government when it comes to protecting the environment. I am also concerned that, rather than using the parliament to consider and reform the standards, these will be left to the minister. For something as important as environmental protection, the standards must be scrutinised here in this place.

Perhaps most concerningly, the bill allows the minister to make a decision or do something that is inconsistent with the national environmental standard where the minister considers it to be in the public interest. This government claims it may be necessary to balance environmental considerations with the social and/or economic impacts of a project. Stakeholders have expressed concern about this, and I want to put my concerns on the record too. We should be relying on a robust set of environmental standards to protect our environment, not allowing a minister to do whatever they want.

I just want to reiterate that Labor will not support any weakening of our environmental laws. We want to see strong Commonwealth laws to protect our precious natural environment, and we also want to see a better situation for investment where things can be done quickly. We want to see a tough cop on the beat to actually ensure that these laws do what they were intended to do. We want to protect our environment for the next generation and for its uniqueness in general.