By Chris Wiseman, Partner and Hazen Bulfin, Lawyer

The final report of the independent review into the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) (Samuel Review) was released in 2021. It called into question the EPBC Act’s ability to deliver for the environment, for business, and for the community. The Samuel Review articulated several reforms intended to set clearer national environmental standards, improve investment opportunities in renewal, and harness ‘the knowledge of indigenous Australians’ to better inform management practices.

Released late last week, the new Federal Government’s ‘Nature Positive Plan: better for the environment, better for business’ puts environment squarely on the Parliamentary agenda. While envisioning a legislative overhaul to Federal environmental regulation before the end of 2023 — the Government also calls for a ‘conceptual shift’: a reimagining of environmental protection in this country.[1]

At the centre of the Government’s ambitious plan is a strategy for better data collection, management, and distribution; greater First Nations engagement; regulation streamlining; interdepartmental coordination; and more transparency. Whilst further clarification around some proposed reforms (much of which we anticipate being developed in 2023) is needed, we provide a brief overview of the key changes below.

The Federal Government’s reform agenda intends to:

‘Accountability and trust’

1. create an independent Environment Protection Agency (EPA) to regulate and implement functions under the EPBC Act. An independent EPA will assess and make decisions about development proposals, issue permits and licenses, undertake compliance and enforcement activities, publish compliance and enforcement policies, and provide advice directly to ministers.
2. establish a new independent environmental information office – the Data Division – within the Department of Climate Change, Energy, the Environment and Water to coordinate and improve access to authoritative environmental information. The Commonwealth intends to expand the ‘availability, interoperability, management, and quality of national environmental data, and address key data and capability gaps’ by bringing together the expertise of Federal, State, and Territory agencies; community, and First Nations groups; and the scientific community.[2]

‘Better environment and heritage outcomes’

3. develop a suite of baseline National Environmental Standards, codified, and clearly articulated to ‘streamline’ decision-making processes. The Government intends to create several – periodically reviewable – standards which cover a range of topics; the first being Matters of National Environmental Significance (MNES) (intended to impose a nature positive approach to developments).
4. improve the current conservation planning framework through a rebalancing of existing priorities towards practical and science-based approaches (over administrative processes). An improved framework will create planning documents for each nationally threatened species and ecological community; develop the necessary infrastructure to better manage strategic financial investment; and effectively manage government environment data to making it ‘more accessible, searchable and informative’.[3]
5. commit to partnering with First Nations to improve land, sea, and freshwater management through the sharing of traditional knowledge.
6. ‘clarify’ Commonwealth responsibilities in-line with international commitments to protect our unique environments. The government will continue to recognise the risk posed by large scale global warming by ‘embedding’ climate considerations into all government decision-making functions; improve government transparency around emissions data; and require regional plans, and strategic assessments and planning to include requirements for environmental adaptation and resilience measures.[4]
7. seek amendments to the current water trigger to include all forms of unconventional gas – including shale and tight gas – and expand State and Territory access to Federal scientific data. Better data access will inform ‘consistent’ decision-making and give States and Territories the capacity to effectively manage the impacts of gas and mining developments on their own water resources.

‘Faster, better decision-making and clear priorities’

8. implement a traffic-light management system for regional development to better protect Australia’s landscape, ocean and waterways. That is, the Government will classify areas through a hierarchy of Areas of High Environmental Value (AHEA) and provide greater consistency for prospective development projects by clearly identifying relevant environmental constraints. Ultimately, the impact of this change will depend on how Canberra defines AHEAs.
9. reform environmental offsets to ensure they can ‘deliver gains for the environment and reduce delays for proponents.’[5] Offset provisions will be codified to ‘ensure developer certainty’. The Government has revised the ‘hierarchy of action’, now requiring individuals (at first instance) to avoid all environmental harm, if possible, mitigate the harm if it occurs, identify necessary offsets, and make a conservation payment to better enable environment outcomes.
10. establish a Nature Repair Market to be a central hub for better investment in restorative activities and deliver quantifiable benefits to landholders, investors, and the environment. Whilst in its early stages of development, the Government intends to continue engaging with stakeholders and aims to develop a ‘fit for purpose’ market based on eligible biodiversity projects and tradeable biodiversity certificates.[6]
11. streamline decision-making processes and regulatory requirements through developing new information systems to coordinate and unify Commonwealth, State, and Territory decision-making. Commonwealth environmental laws will be simplified to make them both functional, transparent, and ‘less burdensome’ on proponents and assessment pathways will be rationalised to avoid unnecessary referrals.

No merits review

Despite the Commonwealth declared support for ‘better decision-making’ it has rejected the Samuel Review recommendation for a limited merit appeal right for decisions.

Under the changes, the new independent EPA will be responsible for project assessments, decisions, and post-approvals (where these are not undertaken by another accredited decision-maker). The Commonwealth environment minister will have a power to call in decisions that would otherwise be made by the EPA.  However, if a development proponent is unhappy with an EPA or ministerial decision (to refuse an approval), the proponent will have no right challenge the merits of the decision in a tribunal or court.

Such appeal rights are ubiquitous at a state-level.  They provide investors with confidence that they are protected from arbitrary adverse decision-making.

The failure to introduce any proponent merit appeal right is a real concern.

Next steps

With the Commonwealth’s intension to spend the first half of 2023 engaged with stakeholders, we anticipate draft legislative reforms could be released as early as late July.

The 2023 consultation will primarily focus on:

• Developing an MNES standard to be released alongside any new legislation;
• Designing an independent EPA;
• Identifying locations for regional development plans;
• Improving environmental data; and
• Improving conservation planning.

Given the importance placed by the Federal Government on its reform agenda, it is likely to have any proposed legislation ready to be passed by both Houses of Parliament in November 2023.

Mills Oakley is closely monitoring the proposed legislative changes and development in this area to ensure our clients continue to receive current and timely advice.  If you or your business would like further information or assistance in relation to obtaining approval under the EPBC Act and potential effect of the proposed changes, please contact the Mills Oakley Planning and Environment Team.

[1] See DCCEW 2022, Nature Positive Plan: better for the environment, better for business, Department of Climate Change, Energy, the Environment and Water, Canberra, December. CC by 4.0 (Nature Positive Plan), at [iii].

[2] See Nature Positive Plan at [29].

[3] See Nature Positive Plan at [12].

[4] See Nature Positive Plan at [14].

[5] See Nature Positive Plan at [21].

[6] See Nature Positive Plan at [22]-[23].