Landmark Federal environmental overhaul: Independent National Environmental Protection Authority and sweeping reforms

The Nature Positive Plan: better for the environment, better for business, released yesterday, sets out the Australian Government’s plan to introduce legislation to Parliament before the end of 2023 to overhaul Federal environmental laws, including the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), and to create an Independent National Environmental Protection Authority.

The key changes proposed under the Government’s Nature Positive Plan will:

• create a new Independent National Environment Protection Agency (EPA) to undertake regulatory and implementation functions under the EPBC Act and other Commonwealth laws, including assessing and deciding on development proposals and approval conditions and issuing permits and licences;
• implement National Environmental Standards to clearly benchmark environmental outcomes to address the shortcoming highlighted in the Samuel Review. Standards will firstly be developed for Matters of National Environmental Significance, and then for First Nations engagement and participation in decision-making, community engagement and consultation, regional planning, environmental offsets, data and information and compliance and enforcement;
• reform the National Conservation Planning Framework to implement a strong regulatory standing planning document for each nationally listed threatened species and ecological community which identifies and prioritises threats, recovery actions and important habitats for such species and communities;
• enhance partnerships with First Nations peoples, including new standalone cultural heritage protection laws in parallel with reforms to the national environmental law, as well as further consideration of management models for National Parks;
• introduce significant reforms to the environmental offsets framework to ensure net positive outcomes for environmental offsets, including a new and strictly enforced hierarchy of action and conservation payments in certain circumstances;
• establish a nature repair market to encourage investment in restoration activities to achieve biodiversity outcomes. Once operating effectively, the EPA may allow certain market projects to be uses to meet their approval obligations;
• commence regional planning projects to identify areas for protection by regional plans and to require proponents to demonstrate compliance with such plans. Regional plans will be structured in a three-level spatial system to provide more certainty to planners and prospective proponents about whether developments will be approved;
• streamline processes, including simplifying and streamlining environmental laws, reconsidering assessment pathways to avoid unnecessary referrals, exploring options for proposed developments to move straight to assessment, implementing a national approach to listing threatened species and better regulating wildlife trade;
• improve environmental data and access to information, including by digitising and creating a Data Division within the Department of Climate Change, Energy, the Environment and Water to advise the government on the National Environmental Standard for Data and Information and be responsible for the Standard for Data’s implementation;
• bring Commonwealth responsibilities in line with international commitments in relation to transparency of emissions from projects, consideration of climate change in planning and information on climate-exposed habitats, species and places and climate-impact modelling, as well as by amending the water trigger and nuclear regulations; and
• strengthen cooperation between the Commonwealth and States and Territories.

The basis for the proposed reforms to environment laws

The Nature Positive Plan is the Government’s formal response to Professor Graeme Samuel’s independent review of the EPBC Act, which was provided to the Government in October 2020 (Samuel Review).

As part of its response to the Samuel Review the Government developed three key principles to steer the proposed reforms in the Nature Positive Plan:

• delivering better environmental protection and laws that are nature positive;
• speeding up decisions and making it easier for companies to do the right thing; and
• restoring integrity and trust to systems and environmental laws.

Appendix A of the Nature Positive Plan outlines the specific actions the Government will be taking against each of the recommendations from the Samuel Review. Most of the proposed reforms look to be broadly consistent with the recommendations. However, as many of the Government’s responses are expressed in general terms, we will need to wait to see the drafting of amending legislation before we can get a clear picture of the Government’s intent.

One response that is clearly expressed, is the Government’s commitment to the creation of a new independent, Federal EPA for approval and enforcement decisions. Although consistent with the underlying intent of the Samuel Review (and in particular Professor Samuel’s earlier interim report), this reform appears to go further than the review recommendations, and is a significant point of difference when compared to the previous Liberal Government’s January 2021 response to the review. The Government’s intention to expand the “water trigger” to include all forms of unconventional gas is another matter not provided for in the Samuel Review recommendations. One review recommendation that the Government does not propose to adopt, is Professor Samuel’s proposal to introduce limited third-party merits review rights.

The Government also intends to legislate to require governments to respond to future State of the Environment Reporting. The most recent 2021 State of Environment Report is broken down into 12 chapters, each with 6 sections and it highlights the decreasing state of the Australian environment and that Australia’s environmental law was not working.