Until 15 July 2024, you can have your say on our federal nature law reform including three critical issues: the new EPA, ending extinctions, and climate change.
The Senate is holding an inquiry and taking submissions on the government’s current round of reforms, including proposed laws to introduce a new environment regulator, Environment Protection Australia.
But an EPA alone can’t turn around the climate and extinction crises. And the EPA as it’s currently proposed won’t be strong enough to protect our environment.
By sharing your views on the proposed laws to establish the new EPA, and calling for immediate reforms to address the climate and extinction crises, you’re showing our decision makers how much this issue matters.
Ready to make a submission?
The Senate Inquiry is taking submissions until Monday 15 July 2024.
With our short guide below, you can make an impactful submission in just fifteen minutes to encourage Australian senators to make simple changes to the bills to strengthen the EPA and empower it to take meaningful action to address the climate and extinction crises.
Scroll down for our step-by-step guide.
WHY THIS MATTERS
The climate and extinction crises can't wait
Our national nature laws are broken and full of holes. Extinctions are sky rocketing, deforestation is rampant, and our laws are failing to properly address the climate crisis.
For years, organisations, advocates and community members across the continent have been calling for a total overhaul of our federal environmental legal framework – the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).
Earlier this year, the Albanese Government announced it would fragment and delay its full suite of proposed reforms, opting instead to introduce them in stages.
The government’s bills were voted through the lower house on 4 July, without any of the amendments proposed by independent MPs that would have addressed their glaring shortcomings.
The result? A weaker environmental watchdog that will be vulnerable to political interference from the mining and fossil fuel sector.
These are once in a generation environmental law reforms – so we have to get this right.
Three urgent reform priorities
1. An EPA with integrity and access to justice
The Albanese Government has passed laws through the Lower House to introduce a new federal environment regulator, Environment Protection Australia, or the EPA. The laws are currently before a Senate inquiry, and will then reach the Senate for debate before they can be passed into law. The Senate has an important opportunity to fix these bills and deliver an EPA with integrity.
As federal regulator, the new EPA will have the power to assess and approve projects, and will be responsible for enforcing our environment laws.
But the proposed EPA has some serious flaws. There are some key gaps in the legislation which leaves the EPA open to powerful vested interests, and a lack of mechanisms to ensure accountability.
Australia’s new EPA needs to be strong, independent and free from political influence, to deliver environmental decisions based on science instead of politics.
This means an EPA led by an independent, expert board – not a chief with God-like powers.
And, it means clear duties that require the EPA to make approval decisions aimed at halting and reversing species decline, and fearlessly enforce our environment laws.
No accountability for EPA bosses
The government has proposed the EPA will be led by a CEO appointed on the Environment Minister’s advice, with no oversight from an independent board of qualified members.
This means the new EPA boss will be vulnerable to the same powerful influences that have scuttled good environmental decision-making in Australia for generations - setting the EPA up to fail. There’s nothing to prevent a future government appointing a mining boss to head the EPA, let alone safeguard the EPA from powerful lobbyists.
The government promised to restore trust and integrity in our broken environment laws, and establishing an independent EPA was central to this promise. But, instead of a robust EPA set up to succeed – the government has proposed an unaccountable boss to head the agency, who will be appointed on the Minister’s advice.
No clear direction or stated duties
Current plans for a new EPA do not include any clear statutory duties or purposes to guide decision making. Without these, the new EPA will be directionless and vulnerable to powerful influences.
Instead, the government of the day can set the EPA’s agenda with any ‘statement of expectations’ it wishes.
The existing objects and purposes of the EPBC Act are woefully vague and inadequate – demonstrated by the last 25 years of shocking species decline and continued extinctions in Australia. They provide little guidance for a new EPA. Strong, clear duties and purposes must be set in the new Environment Protection Australia Act.
The new laws are touted by government as “Nature Positive” – and that term is central to the new legislation. But the proposed definition for ‘nature positive’ departs from internationally accepted standards and fails to set a clear baseline, leaving it weak, vague and lacking practical effect on the EPA’s work.
Lack of access to justice
The government bills increase civil penalties for contraventions of the EPBC Act, which is very welcome. However, these penalties are only available when the EPA takes matters to Court.
Civil penalties should be expanded so that any person with the right to enforce the EPBC Act has the right to seek civil penalties against entities that have breached the Act, particularly where significant environmental damage has already occurred. This is important to genuinely improve deterrence and enforcement of the Act, and crucial for public accountability and community rights to access justice.
Once the EPA makes a decision, groups that care about the environment need the right to seek independent review of the merits of the decision – not just whether it followed the right process. When decisions cannot be reviewed, it risks creating a decision-making culture of impunity with poor decisions for our threatened species.
Merits reviews will ensure the EPA rigorously and fearlessly assesses and decides on applications, based on the best available science. In doing so, it creates a culture of scientifically sound, well-founded and justifiable decision making at the EPA.
What needs to change?
We need integrity and accountability built into the new EPA – to protect this powerful new agency from vested interests and set it up to be the frank and fearless regulator nature needs. And, we need the community to have access to justice to properly enforce our environment laws.
That means:
- An independent board of qualified members to lead the EPA, elect the CEO, ensure they remain accountable and carry out their functions consistently with strong duties and purposes on the EPA;
- Strong duties that direct the new EPA and its CEO to make the best decisions for our environment and take strong enforcement action. This includes duties to:
- halt and reverse the decline of listed threatened species,
- protect and improve the state of the environment from the harmful effects of pollution, destruction and waste through assessment, enforcement, monitoring, reporting and standard setting;
- a duty to promote environmental justice;
- a duty to act consistently with the human right to a healthy environment for all.
- A definition for ‘Nature Positive’ that sets a clear baseline of ‘measured against a 2020 baseline’, to meet the international standard set in the Global Biodiversity Framework.
- The ability for third parties to seek civil penalties from the Court against entities that breach the EPBC Act
- Providing the public with a right to appeal the merits of decisions on the referral, assessment and approval of new projects or developments (by either the EPA or the Minister).
2. Ending extinction
Habitat destruction is driving extinctions across Australia and we are a global deforestation hotspot. Against this backdrop, our government has committed to ending deforestation by 2030.
Yet the current EPBC Act is failing to address deforestation. It is full of loopholes and exemptions that enable rampant bulldozing of listed threatened and migratory species habitat.
Four simple amendments to the EPBC Act would enable the EPA to take meaningful action on the deforestation crisis in Australia – and protect threatened species being decimated as a result.
Too many loopholes and exemptions for logging and land clearing
While the government’s promise to direct the EPA to focus enforcement on deforestation and land clearing is welcome, it will be undermined by the current Act’s exemption for native forest logging (under Regional Forest Agreements, Div 4 of Part 4 of the Act) and the Act’s failure to stem extensive land clearing.
Deforestation is unregulated under the current EPBC Act. This is true even when logging agencies are bulldozing breeding habitat for some of Australia’s most critically endangered animals, like swift parrots, and where clearing bushland for beef and cotton razes the habitat of threatened species whose legislated Conservation Advice identifies habitat clearing as its principal threat, like koalas.
Without change, the new EPA will enforce broken laws that have allowed an average of 545,000 hectares of forest and bushland to be destroyed each year over the past 10 years. This is the equivalent of an MCG-sized area destroyed every two minutes.
In Northern Australia and Western NSW, deforestation that seriously impacts threatened and migratory species operates under a de facto exemption. Despite our national nature laws prohibiting actions likely to have a significant impact on threatened species, government enforcement action to reign in deforestation almost never occurs even after repeat notice from civil society of shocking deforestation in habitat for threatened species animals like koalas and greater gliders.
Deforestation also exploits the ‘continuous use’ exemption (section 43B), allowing for the continuous bulldozing of Australia’s forests and bushland for agriculture to go unchecked.
Amendment is urgently needed so that the EPA can ensure that clearing of threatened and migratory species habitat does not proceed without assessment and approval. This is because the cumulative impact of deforestation is devastating listed threatened and migratory species.
Both the express and de facto exemptions must end, and a new provision should compel referral of deforestation – to make sure it is properly regulated under the EPBC Act through assessments and approvals.
No hard limits on 'unacceptable impacts'
Experience over the life of the EPBC Act shows that following assessment, approval decisions too often permit the destruction of vitally important threatened species habitat. This occurs because the Act lacks legislated limits on the discretion to approve severe environmental destruction – or what we would call ‘unacceptable impacts’ – coupled with the influence of vested interests.
Our current environment laws contain some provisions to enable rejection of projects with severe environmental impacts – but they are underused and there is no guidance or definition of what impacts are unacceptable.
The parts of the EPBC Act referring to ‘unacceptable impacts’ on the environment should be strengthened (sections 74B-74D of the Act), and should prohibit decision makers from approving projects that will have unacceptable impacts (at s 137-140).
Simple amendments are urgently needed to make clear what impacts are unacceptable, so the EPA makes clear and consistent decisions to reject projects with severe environmental impacts.
This will ensure habitat critical to the survival of threatened species, like Swift Parrot and Greater Glider breeding habitat, is protected from destruction and cannot be logged or bulldozed.
What needs to change?
Some simple yet vital changes are need to ensure our new EPA is operating with laws that can actually protect nature.
Key amendments are essential to ending deforestation and habitat destruction:
- A new provision that compels referral and assessment of planned deforestation greater than 20ha in threatened or migratory species habitat, a threatened ecological community, or in the Great Barrier Reef catchment, and require the assessment and approval decisions to consider the cumulative impacts of a native vegetation clearing on each threatened species impacted
- Repeal the exemption for native forest logging (in Regional Forest Agreements), to ensure all native forest logging is assessed for its harm to threatened species
- Repeal the continuation of use exemption, which is exploited to facilitate land clearing for agriculture without scrutiny, even where it occurs within areas impacting on threatened species. This will also benefit other species such as those impacted by shark nets.
- Definitions of unacceptable impacts should be specified for each Matter of National Environmental Significance – such as Listed Threatened Species and Communities, Migratory Species, World Heritage property, National Heritage property, and Ramsar Wetlands. This should include defining significant damage to habitat critical to the survival of listed threatened species as unacceptable.
- The EPA and the Minister should be prohibited from approving unacceptable impacts.
3. Climate change
Climate change threatens every ecosystem across the continent. Already, climate change is seriously impacting iconic wildlife – and pushing threatened species closer to extinction.
But right now, the EPBC Act fails to explicitly, clearly or comprehensively address the threat of climate change. In addition, the EPBC Act does not currently contain any meaningful link with Australia’s climate targets under the Climate Change Act 2022, nor the emissions limits in the newly reformed Safeguard Mechanism. It is illogical that no analysis of these legislated carbon budgets currently takes place before a new project is approved.
Australia’s new laws should clearly mandate scrutiny of the true climate risk of proposed projects (including all new coal and gas projects), and provide the power to reject them due to their likely climate impacts.
They should also ensure that all of the laws comprising Australia’s climate policies work together in a direct and meaningful way to drive down emissions, meet our international emissions obligations and prevent further climate-related extinctions.
What needs to change?
The EPBC Act requires urgent amendment to protect nature and people from climate change. It must:
- Explicitly require assessment of actual climate risk, with the EPA empowered to reject projects due to their likely climate impacts. This should include a mechanism (a new, climate ‘matter of national environmental significance’, or climate ‘trigger’) that ensures a high-emissions project is scrutinised under the EPBC Act even if it has no other impacts on a protected matter.
- Ensure the environmental assessment of all projects includes all expected emissions, including downstream emissions, and that decision makers are mandatorily required take account of climate change, including the cumulative climate impacts of a project. The impacts of downstream emissions must be weighted equally to other (direct) impacts in the assessments.
- Explicitly require decision-makers, when assessing the likely impacts of a project, to assume that the project will go ahead (and not permit the decision-maker to negate its impact by referring to other emissions sources that might replace or substitute the emissions if it didn’t go ahead)
- Ensure that strengthened legislative measures will flow through to any projects assessed under other ‘accredited arrangements’ (including the NOPSEMA regime) to avoid loopholes or gaps.
- Properly link the Safeguard Mechanism and Climate Change Act 2022 to the EPBC Act, so that a project cannot be approved under the EPBC Act if it is likely to result in a breach of statutory emissions targets and thresholds.
How to write and lodge your submission
The easiest way to draft and share your submission is via a Word document, Google document or similar.
The best submissions are unique. Good submission generally:
- Are concise and well-structured
- Emphasise the key points so they are clear
- Outline concerns as well as suggesting recommendations to address them
- Only include information and documents that are directly relevant to your key points.
- Only include information you are comfortable to see published on the internet.
Begin your submission with a brief personal introduction. Introduce yourself, mention where you live, and most importantly, share why this issue matters to you personally.
Perhaps you are a scientist with firsthand knowledge about the serious issues facing our environment. You might have children or grandchildren and want to make sure they get to experience the wonderful, iconic places, plants and animals so special to this country. Simply caring about our planet is enough. Whatever resonates for you – share that in your introduction.
Next, move into the submission itself – sharing your thoughts on the government’s proposed plans.
We have summarised our top three things we think are vital for the Senate committee to consider. Read more on those below.
Once you have written your submission, finish off with a concluding statement urging the Senate committee to consider what you have raised. Remind them what is at stake. Sign off with your name, and don’t forget to save your document.
Once you’ve written your submission, follow the steps under the section above to lodge your submission.
You must lodge your submission via the government’s submission portal, prior to 15 July 2024.
You must also have a My Parliament account to make a submission. Follow the instructions on the portal page to either create an account or log into your existing account, if you have one.
To begin the process of uploading your submission, click the ‘Upload Submission’ button under the ‘Inquiry Status’ heading in the right hand column.
You will first be asked to create or log in to your My Parliament account. Once you have done this, the portal will show you a page with a list of all the inquiries currently taking submissions. Scroll down the list until you find Native Positive (Environment Protection Australia) Bill 2024 [Provisions] and related bills. It should be automatically selected – if not, click to select it. Scroll to the bottom of the page and click ‘Next’.
On the next screen, select whether you are making a personal submission or a submission on behalf of an organisation. Then, fill in the details the form requests, and click ‘Next’.
On the following screen, read the privacy statement and select whether you would like:
- Your name and document to be published on the inquiry webpage
- Your name to be kept private, but your document published, or
- Your name and document be accepted on a confidential basis, and not published on the website nor in the report.
Click ‘Next’.
On the final page, you can upload your submission, and click ‘Submit.’
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