Second day of Parliament, and already the new government has introduced proposed legislation which will see a reduction in the effectiveness of a key provision under the Environment Protection and Biodiversity Act 1999.

This sorry saga has now come to an ignominious end, with the government giving in to the Greens and dropping Schedule 1, the contentious part of this Bill relating to approved conservation advices.   This concession has lead to the passage of Schedule 2, which increases the penalties for illegal turtle and dugong fishing.

The time that has gone by since the original introduction of the Bill has been ample to demonstrate what we and others said all along – that the proposed amendments to the EPBC Act to effective remove the need to consider approved conservation advices in decision making under the Act was over the top and unnecessary.

If you’re keen, you can review the passage of the Bill from its introduction to final passage through the Senate today on the Commonwealth Parliament website.

(And an interesting footnote – a proposed amendment by Senator Xenophon to add hydraulic fracturing to the EPBC Act water trigger failed for lack of support.  Interestingly, however, the ALP did indicate a preparedness to review the scope of the trigger in the future.  The government’s other Bill to amend the EPBC Act to facilitate the handover of powers to the states, including the water trigger, remains stalled in the Senate).

Update:  9 December 2013

The Bill has now passed the house of representatives, but with a significant amendment.

As a result of an amendment to the bill moved by the Minister for the Environment, the amendment now only applies to decisions up to the end of December 2013.

A backdown and a welcome one – the legislation now only seeks to fix past decisions where there was a failure to consider an approved conservation advice.

Future decisions are insulated from the change, so not only must a relevant approved conservation be considered in making a decision under the Act, a failure to do can lead to the decision being declared  invalid.

My original blog criticising the bill:

Second day of Parliament, and already the new government has introduced proposed legislation which will see a reduction in the effectiveness of a key provision under the Environment Protection and Biodiversity Act 1999.

Introduced by Minister Hunt today, the Environment Legislation Amendment Bill 2013 seeks to negate the legal consequences flowing from the Tarkine National Coalition’s successful Federal Court challenge to then Environment Minister Tony Burke’s decision to approve the Shree Minerals mine in the Tarkine region.

In that case, the court found that the decision to approve the mine was invalid because the Minister had failed to consider the approved conservation advice for the Tasmanian Devil, a threatened species under the Act.

Under the EPBC Act, an approved conservation advice is an official statement developed at the time of listing a threatened species or ecological community.

Developed by the Threatened Species Scientific Committee, the independent scientific advisory body appointed under the Act to advise on – amongst other things – listing decisions, the approved conservation advice contains information about the reasons why a threatened species has been listed and other important information like what can be done to support the recovery of a listed threatened species or community.   You can view an example here – the conservation advice for the Tasmanian Devil that was at the centre of the Federal Court decision in the Tarkine case.

The conservation advice is not a substitute for a more detailed recovery plan for a threatened species or community. However recovery plans, if they’re developed at all, take many years to finish, so in many cases the conservation advice represents the official statement of scientific information under the legislation on a threatened species or community.

In the vague language with which these things are expressed under the EPBC Act, the Minister must have regard to any relevant approved conservation advice in making key decisions under the Act. Key decisions include, as in the Tarkine case, the decision about whether to approve actions like new mines where there is a likelihood of a signficant impact on a threatened species or community.

The Bill seeks to do two things. Firstly it retrospectively validates all past decisions where conservation advices have not been considered. This might be justifiable tidying up with the retrospective validation of decisions justified on the basis of giving those with the benefit of those decisions the certainty that they won’t be challenged (provided of course that such challenges are not already before the courts).  I must say that the failure to consider the approved conservation advice in the Tarkine case seemed a surprisingly easily avoided error on the part of the department and the Minister.

The fact that there is apparently now a need to restrospectively validate other decisions seems to suggest that this surprising omission is not uncommon.  If conservation advices have been ignored in the past, then we need some explanation as to why this has been happening and why the problem only came to light in a court challenge by the Tarkine National Coalition.

However the biggest problem with the Bill is the prospective applicaton of the amendments to all future decisions where the law is not followed and conservation advices are not considered.

This second aspect of the Bill effectively undermines the legal requirement to have regard to a conservation advice when making key decisions under the Act.  Although the vague obligation to have regard to conservation advices remains, the Bill removes the legal consequences of a failure to do so. The ability to hold a Minister accountable to decisions under the Act is reduced because this ground of challenge is removed.

This is a surprising and unfortunate response to the Tarkine decision and any past failures to consider conservation advices in decision making under the Act. The more obvious and principled response would be for the department to smarten up its game and make sure the Minister is briefed with and has regard to any relevant approved conservation advice in the future.

The response actually developed and included in the Bill is a heavy-handed approach that undermines important obligations contained in the Act and reduces opportunities for public scrutiny.