Overdue nature law reform will not save koalas from extinction

By Frances Medlock, Barrister, Commonwealth and Government Liaison, and Rachel Walmsley, Head of Policy and Law Reform

On Tuesday, Environment Minister Tanya Plibersek announced the next step in national environmental law reforms, confirming a phased approach of creating new institutions now, rather than a full package of reforms to fix broken problems Law on Environmental Protection and Biodiversity Preservation (1999) (EPBC Act). On Wednesday, the EDO gave evidence to the Inquiry into Australia's Extinction Crisis, explaining the crucial need for comprehensive reform to fix our failed national laws and save our iconic plants, animals and places. We asked the inquiry if what is being proposed will stop species such as koalas from becoming extinct? Our answer was no.

This legal update explains what is on the table from the Government at this stage and what we should be looking at next.

What is the latest reform proposal from the Australian government?

To summarize, in December 2022, in response to Samuel's review of the EPBC Act, the Albanian Government published it The positive plan of nature outlining its commitment to reform Australia's environmental laws. Late last year, the government introduced a first phase of reform with legislation to create a market for nature repair and to extend the water incentive in the EPBC Act.

This week, Minister Plibersek announced that the next step in nature-positive reforms to Australia's environmental laws will be the imminent introduction of legislation to create Environment Protection Australia (EPA) and Environment Information Australia (EIA). The new EPA will be responsible for compliance and enforcement of the current EPBC Act, including the addition of several penalty enhancement provisions. We also understand that the minister will have the ability to delegate approval and assessment decisions to the new body.

This is a small step forward in progressing the full package of positive reform, but it is a long way from the comprehensive legislative reform we urgently need to see passed by parliament this year to reverse Australia's demise trajectory.

The reason for pushing ahead with institution building is the recognition of the urgent need for better compliance and enforcement of a strong police force on the beat – to crack down on money laundering and dubious compensation. And the recognition that we need better data and information to track our progress against environmental goals.

These are necessary elements of a workable regulatory scheme, but will only the honeyeaters, curlews and skates survive? No.

Without a comprehensive review of the EPBC Act, the new institutions will simply monitor and regulate the broken laws:

• A new EPA may mean that compliance and enforcement may be more likely to occur if habitat is cleared illegally, but this happens after the fact, when the damage has already occurred.
• Having a state of the environment report every 2 years from the new EIA will simply document the decline and extinction of our threatened species more regularly, without strong laws to actually prevent the damage from happening in the first place.

Our primary recommendation is to urge the Government to introduce and parliament to pass a comprehensive package of legislation in this parliamentary term.

The EPBC Act is 20 years old and not fit for purpose. It is failing our environment, business and community, and time is running out to save our iconic threatened species. Legislative reform is needed now, we cannot wait another decade for another legal review to confirm what we all know that national environmental laws are failing.

We congratulate the Government on its ambitious commitments in the Positive Nature Plan, as well as the international biodiversity commitments for 2030, and believe that positive nature is still within reach. Substantial work has been done by the reform task force in preparing the legislative and policy drafts, and we call on the Government to complete the work it has undertaken and present the comprehensive package this year.

If the next phase goes ahead as proposed, we should see the strongest possible EPA and EIA, as well as the commitments and foundations laid to deliver comprehensive reforms.

Environmental Protection Australia

EDO has long called for a strong and independent EPA that can make expert approval decisions and undertake enforcement and compliance activities without political interference. The details of the bill are not yet known, and what we have seen in closing has been high-level and overwhelming. What we need to see is an EPA:

• It is led by a CEO appointed by, and reports to, an independent Board based on statutory competence;

• Completely independent and not subject to the direction of the minister of the day or politicized appointments;
• Driven by clear and actionable tasks and objectives to guide decision-making and other activities;
• With safe and long-term financing; AND
• It is subject to strong rules that ensure transparency in all functions and decision-making.

At the investigative hearing, EDO presented our report providing guidelines for the design and implementation of Environmental Protection Agency best practices. We call on parliament to adopt recommendations to ensure that the new national EPA is a strong, accountable and well-resourced body. See: Implementing Effective Independent Environmental Protection Agencies in Australia.

Information about Environment Australia

The new EIA will also be a welcome reform, as its role in gathering and disseminating environmental information is important. It is important that information is made publicly available and can be shared and used for a variety of purposes (meaning that valuable data will no longer be unavailable under commercial confidentiality barriers).

The important work done to date to develop a national standard for data and information should be carried out as part of the creation of the new EIA.

Comprehensive reform is urgently needed

However, by themselves these new institutions are not enough to turn the tide on extinctions and the climate crisis in Australia. Even with better enforcement and improved data and information, our outdated laws of nature do not protect the environment. To achieve the Federal Government's target of no further extinctions, we urgently need the full package of reforms to progress and pass through parliament in 2024. This includes the full set of National Environmental Standards, protection better for species and ecosystems at risk, and stronger community rights. We need a clear commitment from the Government that this will happen, and if this next phase of reforms goes ahead, it must lay the foundations for the final phase of comprehensive, transformative reforms.

The EDOs' written submission to Australia's Extinction Crisis Inquiry identified 6 key components needed to ensure environmental law reform in 2024 will make a real difference to the nature we love:

• New environmental laws must be clear, consistent and results-oriented.
• An independent EPA, with a clear statutory role and good governance arrangements, is best suited to remedy the trust deficit in environmental decision-making.
• First Nations communities must be at the forefront of protecting the environment and cultural heritage.
• Community consultation and engagement should be at the core of environmental decision-making.
• Climate change is the biggest threat to our environment and climate considerations must be integrated into the new law.
• Initial nature protection and red lines will be essential to protect species and ecosystems at risk.

We need positive nature legislation to be introduced and passed in this term of parliament so that new laws can begin to protect, restore and conserve nature as soon as possible. Further delay will continue to fail Australia's unique wildlife and ecosystems, as well as future generations.

The law reform team at EDO will review the proposed legislation and advise on necessary amendments, and we will continue to work with clients, scientists, members of parliament and the reform working group to ensure that the package of full of reforms to be submitted.