Matters of National Environmental Significance (MNES) are plants, wildlife, places and certain actions explicitly protected under our national environmental laws (also known as ‘Protected Matters’).  

More than 2100 plants, animals and ecological communities are protected under Australia's national environment laws as MNES. 

Species at risk of extinction are protected as Matters of National Environmental Significance. If a species is considered extinct in the wild, it is still considered a MNES.  

Proposed changes to our laws would remove species extinct in the wild from MNES protection. This change is a huge step backwards in protecting nature. Our new environment laws must maintain the definition of MNES to include species extinct in the wild. 

This is to ensure if an extinct animal or plant is re-discovered in the wild, it will be protected automatically without requiring a separate process which might be too slow, bureaucratic and ineffective to deal with any urgent threats.   

The draft reforms also propose a change to how nuclear actions are defined. Our current laws include a nuclear action trigger, which is intended to protect the environment – particularly MNES – from impacts of nuclear actions.

The proposed reforms will narrow this definition to ‘radiological impacts’.

Our new laws cannot go backwards in protecting our environment from the harms of nuclear projects. The nuclear action trigger must be retained as it is in any new environment laws.

A land clearing trigger must be introduced to address the enormous failure of our current laws to address the land clearing crisis in Australia.

Not only is Australia a global deforestation hotspot alongside Brazil and Borneo – almost no land clearing is even assessed for environmental impacts, let alone approved, under our current national environment law. But land clearing is happening daily in areas mapped by the federal government as likely to contain listed threatened species.  

Our current environment laws have failed to address the land clearing crisis in Australia. The new laws cannot let this go on. Land clearing must trigger an assessment and require approval under the new Act – just like every other sector that may, or is likely to, significantly impact listed threatened species. 

Introducing a land clearing trigger would ensure any plan to clear land over a certain size in areas that may contain, or are likely to contain, listed threatened species requires federal government assessment and approval. The trigger could sit in the Act as a new section, or as a statement in the new National Environmental Standard for Threatened Species and Ecological Communities. 

In Queensland, more than 2.1 million hectares out of 2.2 million hectares cleared between 2016-2021 was within areas mapped by the Federal Government as likely to contain threatened species. Yet almost no federal assessments of environmental impacts took place, nor any Federal approvals, for this mass-scale deforestation devastating habitat for our wildlife on the path to extinction.  

For our iconic and beloved koalas, more than 730,000 hectares of habitat mapped as likely to contain koalas was cleared in Queensland between 2016-2021. Koalas are now listed as Endangered, with habitat loss a primary threat – yet land clearing of koala habitat still does not undergo federal environmental assessment or approval. 

A land-clearing trigger is a simple solution to help end the deforestation crisis in Australia – and put us on track to meet Australia’s commitment at the COP26 climate summit in 2021 to end deforestation by 2030. This trigger will make sure land clearing complies with the same restrictions as any other sector – it must have environmental impacts assessed, it cannot have unacceptable impacts, and it must comply with the new National Environmental Standards, to protect threatened plants, wildlife, and ecosystems.   

A climate change trigger must be introduced.

Widespread and severe impacts from climate change on ecosystems and wildlife are already being felt across Australia. Despite this, the current draft laws do not require projects creating high levels of climate pollution (like new coal and gas projects) to be assessed for their climate impact on our environment.

A new mechanism must be included to enable the proper assessment, and prevention, of new polluting projects on the basis of their carbon emissions.

This trigger should apply to any project with emissions over the threshold of 100,000 tonnes of CO2 equivalent, including Scope 3 emissions.

This will ensure the climate impacts of a project are specifically addressed when a decision maker is considering whether to approve a project.

Just like individual species, ecological communities listed as ‘vulnerable’ should be a Matter of National Environmental Significance.

Currently, ecological communities are only considered Matters of National Environmental Significance if they are listed as Endangered or Critically Endangered. For individual species, like a plant or animal, this protection extends to those listed as Vulnerable to extinction.

In our new laws, ecological communities listed as Vulnerable must also be protected. This will ensure impacts on vulnerable ecosystems are assessed and protections apply to them, such as prohibitions on unacceptable impacts and requirements to comply with the National Environmental Standards.

This is to recognise the fundamentally interconnected nature of our environment – especially so for ecological communities, which comprise unique native plants, animals and organisms

Climate change threatens every ecosystem across the continent and widespread and severe effects are already being felt by vulnerable and iconic wildlife.

Yet right now, the draft laws do not require decision makers to properly scrutinise the climate risk of proposed projects.

Australia’s new laws should clearly mandate scrutiny of the climate risk of proposed projects (including all new coal and gas projects) and have the power to reject them due to their likely impacts.

Project assessment should have to consider the total, cumulative climate impacts of a project (or group of related projects), including emissions resulting from Australian gas and coal being burnt overseas (scope 3 emissions).

If our laws ignore the climate pollution from the coal and gas we export, this means Australia is not taking responsibility for the devastating climate impact these downstream emissions will have globally and right across the Australian environment.

Some key elements of the proposed reforms have the potential to deliver transformational change for threatened plants and animals.

But as it stands, these features are too weak, narrow and ambiguous to result in real change.

The proposed laws will introduce the term ‘unacceptable impacts’ to new project assessments.

Any project found to have unacceptable impacts on a protected matter will not be permitted under the new laws.

This is a welcome improvement with potential to deliver transformational change for our threatened species – it could deliver real on-ground protections for threatened species and their habitat from damaging projects.

Key concerns

But right now, the proposed definitions outlining unacceptable impacts are too narrow and ambiguous to deliver on the ground improvements for threatened plants and animals.

Recommendations

The definition of unacceptable impacts must be broadened to capture impacts ‘likely’ to occur – not just impacts that ‘will’ occur. Even the best available science can rarely predict future impacts with certainty. Setting such a high threshold for a project’s predicted impacts means any ‘likely’ unacceptable impacts – which often do eventuate in some form – could be permitted.

Currently, its proposed that an impact is unacceptable if it significantly reduces the ‘viability’ of a threatened species. How ‘viability’ is defined is crucial; it must clearly state this means species are not declining.

Damage to critical habitat must also be defined as an unacceptable impact.

Habitat is vital to the survival of threatened wildlife. Our new laws need to improve protections for critical habitat – not gut them.

Key concerns

The federal government has promised to turn around the extinction crisis, and to protect critical habitat, but the draft laws fall far short of this ambition.

In the draft laws, habitat protection areas are discretionary, and the concept of critical habitat has been abandoned.

In the proposed reforms, the vital legal concept of ‘critical habit’ has been abandoned, along with available legal protections for it. Critical habitat has clear legal meaning, has been applied on the ground, and is identified in recovery plans or draft plans for many species. It includes vital habitat for threatened species like areas necessary for breeding, maintaining genetic diversity and long-term evolutionary development, and species recovery. It has the best potential to protect important threatened species habitat on the ground, where it counts.

Protecting critical habitat needs to become mandatory, not be abandoned.

‘Critical habitat’ has been replaced with a new, vague definition: habitat that is both ‘irreplaceable’ and ‘necessary for survival in the wild’. These terms are ambiguous, with no known meaning, and have not been applied in practice. The Department has made clear that these new terms are intended together to capture less than habitat critical to the survival of species.

The consequences of this are concerning. For example, under this new definition, it’s unclear whether a 150-year-old hollow bearing tree, vital habitat for countless threatened animals, would be considered ‘irreplaceable’. It could be possible for a proponent to argue the tree is replaceable by substituting a nest box in its place, allowing an ancient tree providing endangered species habitat to be cut down.

Recommendations

The current legal definition of ‘critical habitat’ must be retained. If it is not, and the new terms are used to define unacceptable impacts, damage to either habitat that is irreplaceable or necessary for survival in the wild must be considered an unacceptable impact. If not, the reforms will reduce habitat protection for threatened species from the protections available in the current laws – taking protection of threatened species habitat backwards not forwards.

The new laws must make it mandatory to identify and protect critical habitat, using its current legal meaning, for every listed threatened species and ecological community.

The current EPBC Act has existing requirements to set out important, practical information in Recovery Plans, and that prohibit an action inconsistent with a Recovery Plan.

Key concerns

The reforms replace Recovery Plans with Recovery Strategies, but weaken the information required in them. The reforms also weaken the existing prohibition on actions inconsistent with a Recovery Plan, to prohibit only an action inconsistent with part of a Recovery Strategy, called a Protection Statement. But, the Minister can choose whether to make a Protection Statement or not, its not mandatory. Together, these issues take Conservation Planning backwards, not forwards, for our threatened species.

Recommendations

The reforms must maintain and strengthen the standard of information required in Recovery Strategies from requirements in the current Act, such as:

The reforms must maintain and strengthen the standard of information required in Recovery Strategies from requirements in the current Act, such as:

• the objectives to be achieved for the species (for example, removing a species or community from a list, or indefinite protection of existing populations of a species or community);
• criteria against which achievement of the objectives is to be measured (for example, a specified number and distribution of viable populations of a species or community, or the abatement of threats to a species or community); and
• specify the actions needed to achieve the objectives for the species; and
• identify the habitats that are critical to the survival of the species or community concerned and the actions needed to protect those habitats; and
• identify any populations of the species or community concerned that are under particular pressure of survival and the actions needed to protect those populations.

The reforms propose that Recovery Strategies will now be in 4 different documents.

The first document sets out threats to the species and is mandatory, but the other three documents that set out what has to be done to recover the species are discretionary – the Minister only needs to make one of these three documents.

The obligation not to approve actions that are inconsistent with Recovery Plans is weakened to a requirement not to approve an action that is inconsistent with ‘protection statements’ – one of the three discretionary documents. The same issues arise for Threat Abatement Strategies.

Together, these issues risk weakening recovery planning for our threatened species, instead of strengthening it.

The new laws should:

• Leave Recovery Strategies as a single document, to make sure everything that’s required for a species’ recovery is included, instead of risking some requirements being left out because of bureaucratic hurdles creating multiple documents for each species.
• At minimum, make Protection Statements mandatory for every species.
• Instead of weakening the current laws to a requirement not to act inconsistently with part of a Recovery Strategy and Threat Abatement Strategy – the new laws need to strengthen the current law to require compliance with the whole of Recovery Strategies and Threat Abatement Strategies.
• No removal of current requirements in the Act to identify critical habitat and populations under particular pressure for threatened species and the actions required to protect them, and other important practical information, within Recovery Strategies.

The reforms propose stricter protections for threatened species, migratory species and threatened ecosystems in the form of Critical Protection Areas. These new protection areas have the potential to deliver transformational improvements to our threatened species.

Key concerns

However, their identification is only optional. The Minister can choose whether to make a Critical Protection Area for a species, or not.

Similar optional protections have been available to government in Victorian law for more than 30 years – and have never been used, not once.

History tells us that habitat protections will only work for threatened species if they are mandatory, not optional.

Recommendations

Our new laws need to make it mandatory to identify and protect critical habitat, using its current meaning, for the 2212 ecological communities, plants and animals now at risk of extinction across Australia.

Critical habitat should always be protected in a Critical Protection Area.

Further, the new National Environmental Standards should prohibit damage to critical habitat, and not permit it to be offset.

The federal government has already committed to introducing a new, federal environment authority – Environment Protection Australia.

This is a welcome step forward that can move us away from environmental decision-making based on politics and towards decisions based firmly on independent scientific assessment.

The federal EPA must be set up to succeed. It should be established as a trusted decision-maker that monitors compliance, conducts inspections, investigations and assessments, makes rigorous and independent decisions aimed at halting decline and recovering our threatened species, and takes legal action against people or companies that damage our environment.

The new EPA needs safeguards built-in to protect its independence, resources, and staff to match its ambitions. 

To genuinely safeguard this powerful new position from political interference, the EPA’s CEO must be accountable to an independent board with qualified members. The board must by supported by clear governance and reporting requirements. 

The independence and authority of the EPA must not be undermined by the inclusion of broad Ministerial ‘call-in’ powers in our new environment laws. These powers would create an alternative back-door approval pathway, which could be subject to inappropriate political influence and corruption. Worryingly, once a decision is called-in by the Minister, there are no longer requirements for the action not to have unacceptable impacts and not to be inconsistent with the National Environmental Standards, Recovery Strategies and Threat Abatement Strategies. 

Our new laws must also outline a rigorous assessment process, in which the new EPA can independently and fearlessly, using the best available science and with full community-confidence and integrity, assess the environmental impacts of a proposal. Currently, project proponents are allowed to conduct their own environmental assessments – resulting in environmental decision-making that too often benefits proponents over the environment.  

The EPA must be resourced and empowered to carry out environmental impact assessments, to put an end to a system stacked against the environment from the start.  

The federal government’s proposed laws introduce a regional planning structure. Regional planning involves pre-identifying areas within a region as areas for environmental protection, or areas for development.  

Any regional planning needs to deliver on the Government’s promise in the Nature Positive Plan to protect all critical habitat – as the term is currently defined. Critical habitat must be identified in Recovery Strategies for every threatened species, to achieve this. 

Under the federal government’s proposed plans, thorough assessment of individual projects could be replaced by assessment for ‘classes’ of actions. These classes could then receive assessment exemptions – which we’ve seen with native forest logging under the current EPBC Act. It’s critical that all individual actions require individual assessments under the new laws. 

The proposed laws, in removing assessment requirements for certain classes of actions, appear to switch this requirement off in exchange for offsets, which would be required under other aspects of the reforms anyway. But, under regional plans, offsets could become generic, diffuse environmental projects, instead of being targeted at the species impacted by a particular project.

Requirements for environmental protection could be replaced with ‘net positive outcomes’ – allowing proponents to buy their way out of environmental protection with no requirement for offsets to be identified as available, put in place before the damage occurs, nor for the offset project to even be directed to the same species. This scheme risks doing nothing to properly protect the environment – while allowing destruction of nationally important parts of our environment. 

Any introduction of a new regional planning system must: 

• comprehensively protect environmental values, including all critical habitat 
• be capable of accommodating new information about risks and what needs to be protected in a timely manner 
• actively seek to identify areas that may be suitable for national heritage, world heritage or Ramsar wetland site nomination
• not allow for exemptions for specific sectors – such as native forest logging
• not allow for reduced or streamlined approval processes in areas where there may be significant impacts on MNES
• not allow for payments for destruction or weaker offsets, without strict requirements.

Proposed reforms could see project proponents able to make payments instead of project-specific offsets – meaning they could buy their way out of protecting the environment.  

If allowed, these payments are likely contribute to the extinction of some threatened species, ecological communities and migratory species. In NSW, the Independent Pricing and Regulatory Tribunal recently recommended that the option of payment into a Fund should be phased out of the NSW Biodiversity Offsets Scheme (December 2023).   

The reform proposal for “Restoration Contributions” is a clear backwards step from the current EPBC Offsets Policy, that is likely, if adopted, to facilitate the extinction of some threatened species, ecological communities and migratory species.

The reforms cannot take us backwards by weakening limitations on the use of offsets from how they are applied under the current Act. Instead, use of offsets needs to be minimised further, with strict rules applied to their use. 

Other forms of offsetting should only be allowed in limited circumstances, in line with the best available science. This is because offsetting rarely leads to achieving good biodiversity outcomes. The EPA should be required to identify that the necessary offset for a protected matter can actually be delivered before determining whether an offset will be permitted. 

The proposed reforms feature some improvements to offsetting as it currently occurs under the EPBC Act. These include requirements for like-for-like direct offsets, reducing use of averted loss offsets, making sure that offsets are deliverable, requiring offset actions to have demonstrably commenced prior to the impact occurring, are significant improvements over current offsets under the Act.  

But our new laws must recognise not everything can be offset – some of our plants and animals are simply too precious and rare to be traded-off. This includes critical habitat for all threatened species, all World Heritage places and National Heritage places. 

Further improvements to offsetting under new laws must: 

• Limit time lag to benefits from the offset.
• Require the end condition or quality of the offset site to be at least as high as the impact site.

Require offsets to be in biologically meaningful areas and delivered in biologically meaningful timeframes.