Conservation science observers welcome EPA, but concerned about delays to law reform

It’s been a big week for Australia when it comes to environmental protection, but while observers are hailing an environmental victory, they’re also concerned by delays to reforming the nation’s top biodiversity law.

Federal environment minister Tanya Plibersek this week made a series of major announcements, chief among them the adoption of the commonwealth’s first EPA – to be called Environmental Protection Australia (rather than ‘agency’) – which will be a statutory body operating independent of government.

This EPA will be responsible for administering 7 pieces of legislation, including the overarching Environmental Protection and Biodiversity Conservation (EPBC) Act, laws related to sea dumping, hazardous waste regulation, ozone protections, emissions standards, recycling and waste, and underwater cultural heritage.

In tandem, environmental breaches will be punishable by increased penalties now capped at $780 million and 7 years imprisonment.

A new office will also be created to provide open environmental data to the public.  To be called Environment Information Australia (EIA), the body will provide businesses and the wider community with transparent information and data, and publish a State of the Environment report every 2 years, rather than the 5-yearly cycle previously in place.

These new agencies are part of what the minister is calling a “second tranche” of reforms, with the long-awaited overhaul of the EPBC Act to fall into a future third tranche with an unclear timeline as consultation continues.

It’s led to a mixed reaction from observer groups, with the likes of WWF Australia and the Australian Conservation Foundation welcoming the EPA, but criticising the government’s choice to hold over bigger legal changes.

Delay to law reform a concern for science-based groups

Future EPBC legislation is expected to adopt recommendations made in the most recent statutory review of the Act in 2020 by Graeme Samuel.

That review described the Act as “outdated” and in need of “fundamental reform”.

Among Samuel’s 38 recommendations was the introduction of national environmental standards, which should be developed and introduced as a first course of action. Now it seems the standards will be one of the last proposals to be adopted.

James Trezise is director of the Biodiversity Council, a university-based nature advocate established by several of Australia’s leading environmental scientists and ecologists. While he welcomes the arrival of key components of the Samuel Review, he says the absence of law reform remains a major roadblock to biodiversity outcomes.

“There is clear support across the community, and across both urban and regional communities, across demographics, and also across all political persuasions… for stronger national environmental laws,” Trezise tells Cosmos. The Biodiversity Council recently released a survey demonstrating 97% of Australians supported the introduction of an EPA, and three-quarters support law reform.

“What’s missing in its [EPA] announcement is fundamental reforms that were recommended by the independent review by Graham Samuel which was to fix our current system of broken laws.

“Under that [current EPBC] Act, 7.7m hectares of threatened species’ habitat has been destroyed, so that Act has been lambasted as a significant failure in threatened species protection, which is what it’s tasked with delivering.

“Delivering an EPA will help ensure greater integrity and arm’s length decision making, but if that decision making is based on a broken set of laws, it’s not really going to materially matter for biodiversity in terms of what happens on the ground.”

Bird sanctuary a model of flawed laws

The ineffectual laws Trezise speaks of are exemplified by the latest developments from a long-running standoff between property developers and community groups in Queensland’s Moreton Bay.

Toondah Harbour is located on an internationally significant wetland listed under the Ramsar Convention, and was subject to a proposal for a $3bn mixed-use construction project by Walker Corporation.

That proposal, which has been opposed by community and environmental groups for several years, was put in the firing line by the environment minister last Tuesday on the grounds it posed an “unacceptable risk” to migratory bird species among other local wildlife.

Overnight, Walker announced it was withdrawing the proposal.

Leading the opposition to the proposal was Birdlife Australia, an environmental NGO established by avian scientists and conservationists. Its head of conservation and science Samantha Vine points to the Toondah decision as a rare case of the EPBC Act fulfilling its purpose.

“We saw, finally, the Act work in terms of the minister … saying that, actually, the proposed development on Toondah Harbour, which is habitat for critically endangered eastern curlews, should not be destroyed because it is critical to their survival,” Vine tells Cosmos.

But Vine says the environment minister could have also waved the proposal through, as the EPBC Act currently gives her “discretion” when it comes to project approvals.

Environmental groups have criticised the tendency of environment ministers to rubber-stamp environmentally risky projects in the past, and sometimes amid scientifically-backed concerns.

“This is an instance that we’re hoping within the next couple of weeks, the law will work that has been because of the community campaigning really to elevate this issue and demonstrate how important it is,” Vine says.

“It’s been up to community groups who regularly get out there and monitor the birds as they come back from their annual migrations to actually elevate the importance of how you know what this site is for these birds to survive.

“This is a very, very unique example of the laws being upheld. What we see all around Australia on an almost weekly basis is important habitat, that should be protected under the law, being destroyed.”

Vine hopes that the arrival of environmental standards among more comprehensive reform will provide objective guides for governments to assess future proposals and enable the EPA to fully act as what Samuel described in his report as “a tough cop on the beat”.

“Standards really try to, I guess, make decision-making a lot more objective and to really put some parameters around it,” Vine says.

“What we’ve got is an element some elements of that in the reform package, but we’ve got an EPA which is not quite the tough cop on the beat that Samuels is calling for.

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