Australia's new environment laws

What EJA lawyers want to see

We’ve been waiting a long time for Australia’s new environment laws, but that doesn’t mean we should rush the process.

These are seriously important laws (we’re in a climate and extinction crisis, after all) so the detail matters.

The Environment Minister has acknowledged the process of drafting the new laws is complex, with the whole package running to over 1,000 pages. 

On Monday 30 October 2023, we joined around 30 organisations in Canberra for the opportunity to carefully scrutinise the new laws. 

This was the first in a series of rolling consultation meetings on the drafts laws that we expect will continue over the coming months. 

We have written to the Environment Minister, Tanya Plibersek, to express our concern that the consultation is limited to targeted stakeholders at this stage. We hope that full public consultation is going to be provided at a later date. 

We have a seat in the consultation process and we’ll keep working to make sure that community and expert feedback is at the forefront as the new laws are drafted.  

Our current environment laws

When the Environment Protection and Biodiversity Conservation Act was introduced in 1999, Bill Clinton was being impeached, interest rates were 0.25 per cent, the Blackberry phone had just hit the shelves, and people were more worried about the Y2K bug than climate change.

Times have changed and our environment laws haven’t kept up.

We’re now living in an extinction crisis. Ecosystems are collapsing across the continent. Australia has one of the worst extinction records on Earth. We’re a global deforestation hotspot – our extraordinary carbon-rich forests are being demolished at the same rate as the Congo and Amazon. Even koalas are at risk of extinction. We urgently need national environment laws that actually protect nature, with an independent regulator to enforce them. 

What we want to see

With legislation expected to be introduced to Parliament mid-2024, EJA is calling on the Albanese government to make the following changes to laws that Minister Plibersek has acknowledged are “broken”.

We can't go backwards

It sounds simple, but our new laws should increase environmental protections. We’ll check closely to ensure the protections that currently exist in the EPBC Act aren’t weakened under new processes or missing from Australia’s new environment laws.

The reforms must measurably protect species and halt and reverse habitat destruction.

To achieve zero new extinctions, the new federal laws must be led by a strong conservation planning and implementation framework, based on up-to-date data and science.

The laws must commit the government to properly plan for and implement the protection of Ramsar Sites, World Heritage Properties and threatened species, ecological communities and critical habitat. 

First Nations at the forefront

To create a better future for everyone, our new nature laws must truly value the rights, knowledge and culture of First Nations people. 

First Nations people need to be key to decision making and the new laws should be underpinned by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), particularly the principles of free, prior and informed consent. 

A strong and independent national EPA

Environment Protection Australia needs to be set up to succeed. It should be established as a trusted-decision maker, monitor compliance, conduct inspections, and take legal action against people or companies that wreck our environment.

The new EPA needs money, resources, and staff to match its ambitions.

We’ve all had enough of political interference. The EPA can’t be too cozy with the government or big business.

The Minister shouldn’t be able to pick up the phone and tell the EPA what to do or use exemptions to overrule the EPA when it makes a decision the government doesn’t like.

That’s why the new EPA needs to be an independent agency with an independent board and a suitably qualified CEO. 

There can't be different rules for forests

If the government is serious about protecting nature, then the disastrous Regional Forest Agreements regime must go. These agreements create loopholes where Commonwealth and State Governments can turn-off environmental protections under the EPBC Act.  

State logging agencies cannot be trusted to care for our forests, and neither can their state government owners. Let’s get on with it and end native forest logging nationally. 

Stop the bulldozers

Bulldozers are destroying habitat across the country due to a patchwork of laws and policies around land clearing in different states and territories. The federal government needs to take charge and have oversight of all significant land-clearing proposals.

No reliance on offsets

We’re so over dodgy offsets. You shouldn’t be able to buy your way out of environmental protection. There are some things money can’t replace.

Involve the community

Communities help make better environmental decisions and hold governments and corporations to account. Groups that care about the environment should be able to seek independent review of a decision by a judge or tribunal.

Legally enforceable standards

We’re really excited that the reforms will include National Environmental Standards, setting the bar for environmental outcomes across the country.

We’re looking for detail on the standards that will cover matters of national environmental significance (MNES), biodiversity offsetting, regional planning, and First Nations engagement and participation in decision-making.

The standards must apply across all industries, sectors and jurisdictions in Australia from commencement of the new EPBC Act.

Address the risks of new coal and gas

It’s hard to believe, but the current EPBC Act doesn’t specifically deal with climate change. This ambiguity has allowed a staggering 740 fossil fuel projects to be approved since 1999. 

Australia should address the shortcomings in the existing laws that mean the Minister can side-step the climate harm of new coal and gas.  

Minister Plibersek has said the new laws will require companies to include emissions forecasts in their development applications, but she has not endorsed climate reforms.  

While increased transparency about emissions is helpful, it’s not nearly enough. The Minister should be required, by law, to scrutinize climate risk, and have the power to reject projects due to their climate impacts. 

Climate reform – is not a new idea. Way back in 2005, Anthony Albanese, then the shadow environment minister, introduced the Avoiding Dangerous Climate Change (Climate Change Trigger) Bill, but it did not proceed. Let’s get on with it.  

Expand the water trigger

Water is life. That’s why we’re supporting calls for an expanded water trigger to be included before the new environmental laws are introduced.

The current water trigger doesn’t cover unconventional gas and fracking.

Expanding the water trigger would close the legal loophole that lets fracking corporations harm our precious rivers, wetlands, and springs.

We’ll keep working hard to make sure these key features are part of reforms. We’ll keep you updated so you can share your feedback too.

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