Opposing the government's environment bill

By Terri Butler

03 September 2020

The Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 amends the Environment Protection and Biodiversity Conservation Act 1999, known as the EPBC Act, which is the primary piece of Commonwealth environmental legislation. The EPBC Act contains a statutory requirement to review the operation of the act every 10 years. The second of those 10-yearly reviews is presently underway. The government appointed Professor Graeme Samuel AC, one of Australia's most experienced regulators, to lead that review.

I'd hoped to be here today considering legislation that had been brought forward in good faith consistent with that interim review, that was serious and that had meaningful environmental protections in it, but I regret to say that that is not the case. So I move the following amendment to the motion for the second reading:

That all words after "That" be omitted with a view to substituting the following words:

"The House declines to give the bill a second reading as it is of the opinion that the outdated proposals from the Government ignore recommendations from the Samuel Review and fail to protect the environment, create jobs and provide certainty for business".

On 20 July 2020 the government made public Professor Samuel's interim report. The final report is due in October 2020. The interim report sounded a clarion call about the state of the environment. It said:

The environment and our iconic places are in decline and under increasing threat. The EPBC Act does not enable the Commonwealth to effectively protect and conserve nationally important environmental matters. It is not fit for current or future environmental challenges.

To put that in perspective, I want to talk to you about this seven-year-old Liberal government's failures to protect the environment and conserve biodiversity. Professor Samuel's interim report summarises some alarming examples of decline derived from the 2016 State of the environment report and expert submissions to the EPBC review. As to threatened species and biodiversity, the interim report states:

Australia is losing biodiversity at an alarming rate and has one of the highest rates of extinction in the world. More than 10% of Australia's land mammals are now extinct, and another 21% are threatened and declining. Populations of threatened birds, plants, fish and invertebrates are also continuing to decrease, and the list of threatened species is growing. Although there is evidence of population increases where targeted management actions are undertaken (such as controlling or excluding feral animals or implementing ecological fire management techniques), these are exceptions rather than a broad trend.

Since the EPBC Act was introduced, the threat status of species has deteriorated. Approximately 4 times more species have been listed as threatened than those that have shown an improvement. Over its 20-year operation, only 13 animal species have been removed from the Act's threatened species lists, and only one of these … is generally considered a case of genuine improvement.

That's a pretty sad report of the state of affairs under this current legislation. As to protected areas, the interim report states:

The area of Australia that is protected from competing land uses, for example through national parks, marine reserves and Indigenous Protected Areas, has expanded. However, not all ecosystems or habitats are well represented, and their management is not delivering strong outcomes for threatened species. Consideration of future scenarios indicates that the reserve system is unlikely to provide adequate protection for species and communities in the face of future pressures such as climate change.

As to oceans and marine environments, the interim report states:

Aspects of Australia's marine environment are in good condition and there have been some management successes, but our oceans face significant current and future threats from climate change and human activity.

It goes on to point out:

… submissions pointed to recent evidence of steep declines in habitats across Australia's marine ecosystems—including coral reefs in the Great Barrier Reef, saltmarshes on the east coast, mangroves in northern Australia, and kelp forests in Tasmania.


The 2016 State of the environment report predicted that under a business-as-usual approach—that is, assuming current trends continued and policies or management arrangements were not changed significantly—we would see ecosystem changes including declining quality of ecosystems; continued loss of biodiversity, including habitat loss and extinction of many species of plants and animals; ongoing clearing of native vegetation; changes to the marine environment, including ocean acidification and others; changes to the distribution of species and ecological communities; increased pollution of marine and coastal areas from plastics, with greater impacts on species that could be entangled in the debris; continued or increased erosion in some coastal locations; and modification and loss of foreshore and near-shore shallow water habitats.

These are bleak stories, but even bleaker is the Australian emotional response to some of the loss that we have seen. It seems almost like a long time ago now, but it was not a long time ago that we had the bushfires over the summer. It was only months ago. Burned into the Australian psyche, as if by those bushfires, are the images that we saw coming out of the coverage: the woman who took off her shirt to try to rescue a koala; the animals with missing paws, with terrible burns; and the impact on threatened species, to the extent that there were recent reports that up to three billion animals were killed or displaced in just last summer's bushfires. Australians are deeply distressed—I've had people in tears on my phone to my office, and I know other members have had the same thing—by the damage to the environment and to our species wrought by those terrible bushfires.

Taking into account the evidence and taking into account the national sentiment, it is clear that Australia needs to do more to protect our natural environment and conserve biodiversity. At the same time, the environment law has a significant impact on whether major projects and other developments can go ahead and, if so, under what conditions. As well as having significant consequences for the environment, this has consequences for jobs and investment. Projects and developments that are likely to have a significant impact on a matter of national environmental significance would generally require environmental assessment and approval from the Commonwealth environment minister because of the operation of the EPBC Act.

You could be forgiven for thinking that perhaps the government's woeful record on environmental protection and biodiversity conservation has come about because they've been too focused on administering the projects approvals aspect of the law, but that's not what is going on. The fact is Australia has an environmental crisis and a jobs crisis, and the government are failing woefully on both counts. They're both failing to protect the environment and managing to inject massive unnecessary delays, as well as errors and mismanagement, into the process. The government cut around 40 per cent of the funding to the environment department, and now the Australian people and Australian industry are reaping what this seven-year-old government has sown. Whenever an acceptable project is delayed because of this government's cuts and incompetence or whenever the government gets a decision wrong it delays jobs and causes investment uncertainty.

Recently, we got a very clear picture of just how badly this government's cuts and incompetence have stuffed up environmental decision-making. In June 2020 the Australian National Audit Office released its report Referrals, assessments and approvals of controlled actions under the Environment Protection and Biodiversity Conservation Act 1999. It's got a pretty bland title, but I'll tell you what wasn't bland: the content of that report. This is an uncharacteristically blunt report from an audit office. It's findings reinforced what Labor has been hearing from industry—and I'm sure the government's been hearing this as well—that the government's funding cuts have been putting real pressure on decision-making and have given rise to serious delays. The audit report showed there'd been a 510 per cent blowout in project approval delays. It showed that since 2014 there'd been an explosion in approval delays beyond the statutory time frames from 19 to 116 days.


And 95 per cent of all Morrison government key decisions on major projects were late in the 2018-19 financial year. Of those key decisions about assessments and about approvals, 95 per cent were late beyond the statutory time frames in that financial year. The audit report also found that 79 per cent of approval decisions were affected by error or noncompliance.

Over the time the government has been in office, the total number of decisions has been going backwards. It's not as if the environmental laws have become more strict or protective. It's very clear the government's cuts and incompetency are the source of these delays. When the Morrison government use the phrase 'green tape', it appears they are talking about the delays that they have caused. I prefer to think of the delays as caused by blue tape—Liberal Party cuts and incompetence, not environmental protections, which tie up decision-making unnecessarily.

The government have tacitly admitted that their cuts are the source of these problems. Late last year they injected some funding to try to reduce the delays. But why on earth did they wait until their seventh year in government to start to clean up the mess that they had made—to try and stem some of the bleeding? What made them think in the first place that they could cut 40 per cent of the environment department's funding without causing significant harm to the environment, to jobs and to investment? Unfortunately, what we're seeing here is straight from the Liberal Party playbook: gut the Public Service, run them into the ground and then use their worsened performance to justify further cuts or outsourcing or, in this case, to attempt to abrogate responsibility entirely. But it doesn't have to be this way.

The Samuel review process is providing a once-in-a-generation opportunity to reform the environmental laws in a way that provides a win-win outcome, with both much-improved environmental protection and more support for jobs creation and investment. Labor doesn't believe that those two objectives are inconsistent with each other. They're not in opposition to each other. With goodwill, with cooperation and with negotiation, it is not beyond the wit and wisdom of Australian parliamentarians, experts, industry leaders, traditional owners, environmentalists and other community leaders to come up with a way forward together.

As I've said, in the course of his review, Professor Samuel has issued an interim report which was provided to the government and ultimately made public. That report was made public on 20 July 2020, though the government had it for some time before that. The report proposes three phases of reform. The first phase was proposed to commence immediately before the final report is issued. The interim report described the first phase as follows:

Phase 1 should deliver urgent, long-overdue changes to the Act and take the steps needed to build the core foundations for more complex reform. There is no reason to wait to commence this phase.

The interim report elaborated on phase 1 as follows:

The initial phase of reform should fix long-known issues with the EPBC Act within its current construct and set the base for key reform foundations that can be built on and improved over time. The 5 areas of focus for phase 1 reforms are:

Reduce points of clear duplication, inconsistencies, gaps and conflicts in the Act.

Issue Interim National Environmental Standards to set clear national environmental outcomes against which decisions are made.

Improve the durability of devolved decision-making, to deliver efficiencies in development assessments and approvals, where other regulators can demonstrate they can meet Interim National Environmental Standards.

Implement early steps and key foundations to improve trust and transparency in the Act, including publishing all decision materials related to approval decisions.

Legislate a complete set of monitoring, compliance, enforcement and assurance tools across the Act.

It is important to note all the elements of this phase were proposed by Professor Samuel to occur together. When the report was released he said:

The Review encourages consideration of the overall reform direction proposed, rather than its component parts.

Let me therefore talk briefly about all of those elements together from phase 1, as he describes it. The reference to reducing points of clear duplication, inconsistencies, gaps and conflicts in the act is about the drafting and the architecture of the existing legislation. The examples given are things like: defining terms that the review believes need to be clearer, like 'significant' or 'action' or 'continuing use'; reordering the position so it's in a more logical order, for example, by having all the enforcement provisions together rather than distributed through the act; and making the act's provisions less 'verbose' to make them easier to read. These are all examples that I've taken from the interim report. That's what he's referring to in that point.

As to the interim national environmental standards, Professor Samuel has said:


The development of National Environment Standards should be a priority reform measure. Interim Standards could be developed immediately, followed by an iterative development process as more sophisticated data becomes accessible. Standards should focus on detailed prescription of outcomes, not process.

He explained why he thought this was important. He said:

National Environmental Standards will mean that the community and business can know what to expect. Standards support clear and consistent decisions, regardless of who makes them. Where states and territories can demonstrate their systems can deliver environmental outcomes consistent with the Standards, responsibilities should be devolved, providing faster and lower cost development assessments and approvals.

This is what he is saying about these standards and why they're important. At the time, in July, when this was released, the minister said that the government would introduce strong, rigorous environmental standards that had 'buy-in across the board' at the same time as introducing proposed legislative change. That hasn't happened.

The proposed national environmental standards, from the report—these are not my words; I'm describing what the report says—are described as the foundation, or the centrepiece; he uses both those terms. They are the foundation on which the other reforms are proposed to be built. So there is this idea that the government has in this bill, and the idea more broadly—Professor Samuel hasn't, but the government has—of devolving authority to the states. But Professor Samuel's model hinges entirely not just on whether there are some standards in existence, which there don't seem to be yet, but also on the content of them—whether they're good enough, whether they're fit for purpose and whether they're strong enough. He makes it really clear that he doesn't want to see negotiation on a state-by-state basis which leads to a lowest-common-denominator approach. He wants to see national standards that they have to meet.

The devolution proposal which is made here also makes this clear; it's contingent on creating and maintaining trust. That takes us to the other two elements of his proposed phase I reforms. On July 20 he said:

Community trust in the EPBC Act and its administration is low.

That's true; we know that. It's very clear. He went on:

To build confidence, the Interim Report proposes that an independent cop on the beat is required to deliver rigorous, transparent compliance and enforcement.

So the interim report sets out a clear pathway for reform. The review is currently convening groups of stakeholders and experts to do that work which is necessary to give effect to it—to draft those proposed interim national standards.

This has given the Morrison government a choice. They could work with the reviewer, the stakeholders and the experts and then propose serious reforms consistent with the Samuel review for this parliament to consider. And I say 'consider'; there are no guarantees in this, but at least a serious set of reforms with buy-in across the board could be considered properly. On the other hand, they could act in a way that is nakedly political and try to ram through something that is completely unacceptable and completely inconsistent with the Samuel review to try to create division.

[Interjection from the Member for Paterson -- So did they take (a), or (b) they—]

I wish they did take (a), member for Paterson! I should say that taking the latter course, the nakedly political route, has the potential to derail the entire process. I think it's really regrettable if that's what they're doing. But that is what they're doing; I regret to say that they're taking the nakedly political route. The bill we're debating today is an attempt to reanimate the corpse of some failed Abbott-era legislation. It's Abbott 2.0.

By the way, this is something that Professor Samuel explicitly warned against in the interim report:

In 2014 the then Australian Government was unable to secure the necessary parliamentary support for the legislative changes required. There was considerable community and stakeholder concern that environmental outcomes were not clearly defined and the states and territories would not be able to uphold the national interest in protecting the environment. A lack of clear environmental (as opposed to process) standards fuelled political differences at the time.

This community concern remains. Submissions to the Review highlighted ongoing concern about the adequacy of state and territory laws, their ability to manage conflicts of interest, and increased environmental risks if the Commonwealth steps away.

It's incredibly disappointing that the government has disregarded the independent reviewer's report in this way. They're well aware that the bill they're now pursuing is unacceptable and is a model that has already been rejected by this parliament.

It didn't have to be this way, as I said. The conditions for reform that the government faces are very favourable.


They're in majority government. When the last 10-yearly review was on, Labor was in minority government. This government has the benefit of a collaborative opposition that has expressed, throughout this period, our intention to be cooperative—to consider proposals in good faith. And I've made that point continuously since the interim report was released.

In contrast, when the last 10-yearly report was released, we had a Tony Abbott led opposition, completely obstructive—perhaps the most obstructive in the history of federation—plus a Greens crossbench that had very recently, at that time, shown its unwillingness to do the right thing and instead its preparedness to put politics ahead of the national interest by voting with the Liberals against action on climate change. And, of course, at the time, as Professor Samuel has made clear in his report, last time there was an attempt to undertake reforms of this nature, there were deep community and stakeholder concerns.

What does this government have now? What are the conditions for reform? They've got everyone! Get this: they've got everyone, from the Minerals Council to the BCA to the Farmers Federation to the Australian Conservation Foundation to the Humane Society; they've got the Wilderness Society; they've got WWF; they've got traditional owners; they've got academics; they've got environmental law experts—all making a contribution to this process that Professor Graeme Samuel is undertaking. And they've got Professor Samuel himself, one of, as I said, the nation's most experienced regulators, who is working very hard. Now I don't know if that's going to yield an outcome. But why don't we see if it does? Why don't we see—because everybody wants durability of reform, right? That's what industry wants. That's what everybody wants. They want something that, instead of the chopping and changing and uncertainty, can get broad support and buy-in. And the buy-in point is a point that the minister made when she released the report publicly. So, if we can get that, we have such an opportunity here, because these laws are not up to scratch.

As I've said, we have made very clear that we're open to considering anything serious the government wants to put up that's consistent with the Samuel review. For example, we support the introduction of strong national environmental standards. We want them to be properly made. We want them underpinned by legislation. We've also called for a cop on the beat, which Professor Samuel has recommended.

But why would we vote for the Abbott 2.0 bill? Absolute state control over environmental decision-making would have seen logging in the Daintree, drilling on the reef and the damming of the Franklin. It took Labor in government federally to put a stop to this environmental destruction that was intended to occur. With our natural environment—a driver of tens of thousands of jobs—under greater pressure than ever, the Australian people don't want to see the Commonwealth getting out of the business of protecting the environment, and Professor Samuel's report makes it clear that the Commonwealth should not do so. So why would we commit to supporting the Abbott 2.0 model? We would want to see, from the government, something serious, and of course, as they well know, and as Professor Samuel has said, there has to be a clear role for the Commonwealth under that model.

But the first step is that the interim national environmental standards should be drafted and made public. We should not be asked to vote—as we are being today—on legislative change to support devolution to the other jurisdictions before seeing the content and the detail of the standards that are intended to apply from day one. We think that Graeme Samuel's process is a good opportunity to create standards that have, as the minister said, buy-in. She should see what proposed national environmental standards, if any, that process yields, because agreed standards will, as I said, be much more durable than standards written exclusively by the government and simply imposed in a top-down way. The minister should also give some thought to any proposed regulation-making power, including how to make sure it properly underpins the standards proposed by the review and how it might make sure that those future iterations of the standards do not provide lesser levels of protection than the ones that apply initially.

I should note—and I do want to draw this out and highlight it—that Professor Samuel also talks extensively in the report about Indigenous engagement and cultural heritage and other matters relating to traditional owners. We would hope that these issues would feature very prominently in the work that's being done in relation to drafting standards. I think that that's something that everybody would agree on—that we do want to see strong improvements in making sure that traditional owners are not just consulted but have their authority and their experience properly respected and have the genuine opportunity to be a part of the future of protection for cultural heritage but also engagement in environmental decision-making.


In that connection, I might take the opportunity to note that Australians were horrified by the recent destruction at Juukan Gorge, and I encourage all jurisdictions to work together with traditional owners to ensure similar destruction cannot occur in the future.

Turning to the issue of compliance and assurance more broadly, including the cop on the beat that Professor Samuel has recommended, let me make some observations. It is clear that compliance and enforcement are a mess under the Morrison Liberal-National government. Australians deserve to have confidence in how our environment is being managed. We've called on the Morrison government to establish an independent compliance watchdog with teeth that is genuinely independent and, I might add, we'd also want to see from the government what they intend to do about ensuring ongoing parliamentary scrutiny.

Minister Taylor's 'Grassgate' scandal, where he got the now Treasurer to set up a meeting about the environment issue that affected value of his land, is a good example of why an independent watchdog is needed. There's no point in having a toothless watchdog. If you want to see what's happened when watchdogs go wrong, just take a look at the interim inspector-general of the Murray-Darling Basin—I'm talking about the position, not the holder of it. That position was announced on 1 August last year with much fanfare: 'We're going to create an inspector-general position. It'll be interim at first, but we'll rapidly get together some legislation to give it a statutory basis and proper powers so it can do its job to be a good strong watchdog with teeth. The states are all going to sign up to it, and it's all going to be great.' And here we are a year later, and there's still no statutory basis—in fact it's more than a year later—it's still an interim position with no statutory powers and, from all reports, it's not necessarily getting willing compliance from the states. That's not the fault of the incumbent in the position; it's the fault of the government that created the position and then did not properly empower it. It's a good example as well of government talking a big game on integrity and failing on it, because when they announced the position they said it would be able to refer matters to the Commonwealth integrity commission, a body that still does not exist. The government, in dealing with these standards, should indicate how it intends to secure the states' and territories' willing compliance in relation to any proposed compliance or assurance measures that it puts around environmental standards more broadly.

I also want to make a point about resourcing. Given the government's track record of cutting 40 per cent of the environment department's funding, I expect that this parliament will probably want to understand how Australians could be confident that any reforms would be properly resourced, especially since the government has made clear that no additional support would be provided to the states and territories in the event devolution was to occur. It's a pretty big ask for them. 'You guys do all the work. We won't give you any extra money'—that's the position of the government at this stage. I think, after we've seen the 40 per cent funding cuts and the consequences of those, people would want to know how any compliance or assurance mechanisms or broader reforms would be financed into the future.

Also, as Australians, I think we want reassurance that the unnecessary delays—and I'm talking about the delays caused by cuts and incompetence—could be brought to an end. These remarks are not intended to provide the government with a blank cheque and nor are they intended to be a blueprint for reform or a statement of our future position. We're not in government, and it's up to the government to draft and propose any laws and supporting instruments. As I said, it's not a commitment to vote for future legislation sight unseen. All I'm committing to is nothing more and nothing less than a proper serious, good-faith consideration of anything that the government is willing to put forward that is also serious and consistent with the EPBC review.

I've consistently said since the interim report was released that we would give it proper and sober consideration without cherry-picking. That position stands in contrast, unfortunately, with the government's approach. So Labor will oppose the Morrison government's attempt to rehash former Prime Minister Abbott's failed 2014 environment bill which would harm Australia's natural environment and put jobs and investment at risk. This bill would see more major project delays, more investment uncertainty, more conflict, less trust in decisions and worse outcomes for our natural environment.


There are no national environmental standards in this bill, and none have been published, despite them being the foundation and the centrepiece of Professor Graeme Samuel's proposed reforms. With no proposed standards, no independent cop on the beat and no additional funding for the states, despite the extra responsibility, it's just a bill designed for political conflict.

When presented with an opportunity to provide more certainty for jobs and investment in our environment, Scott Morrison chose conflict. If he was serious about securing broad support and durable reform, he would get rid of this bill, sit down at the table, stop breaking promises on national standards and actually work together with stakeholders and the community to deliver something with durability and certainty.