Introduction

In December 2022, the Federal Government announced major reforms to national environmental laws in the highly anticipated response to the Final Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Samuel Review).

As we know, Australia’s natural environment is in rapid decline with the Samuel Review confirming that the current Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is not fit for purpose. The Nature Positive Plan: better for the environment, better for business (Nature Positive Plan) seeks to implement many of the Samuel Review’s suggestions and to make our environment protection regulation and enforcement more effective.

The Nature Positive Plan focuses on three main focus areas:

1. Better environment and heritage outcomes
2. Faster, better decision-making and clear priorities
3. Accountability and trust

This insight provides an overview of the changes proposed by the Nature Positive Plan, what they may mean for you, and when you can expect them to arrive.

New federal EPA

One of the most significant announcements was the establishment of a new Environment Protection Agency (EPA) for the Commonwealth. The EPA will be independent from other government bodies and headed by a CEO who will be appointed under statute. As well as gaining additional new powers, this EPA will assume existing responsibilities from the Department of Climate Change, Energy, the Environment and Water.

The Federal Government wants the new EPA to be ‘a tough cop on the beat’, planning to vest it with the following responsibilities:

• Assessment of actions and granting of approvals under the EPBC Act
• Undertake compliance and enforcement actions – people and businesses will be encouraged to report concerns that the EPBC Act has been infringed to the EPA
• Publication of mandatory guidelines to inform applicants
• Accreditation of States and Territories to make certain decisions under the EPBC Act

The EPA will rely on data provided by the Department’s proposed ‘Data Division’, which will provide clear and authoritative environmental information, acknowledging the data deficit under the current EPBC Act regime.

Other enforcement and compliance measures

New powers will also be vested in the Minister, including a power to ‘call in’ to make decisions that the EPA would otherwise make. These decisions can only be made if the Minister gives reasons and is transparent. While this power may give businesses and the general public greater scope to lodge and make complaints about breaches of the EPBC Act, especially on politically sensitive issues, there is the potential it could undermine the independence of the EPA. Additionally, the government will also be responsible for ‘cost recovery’ actions for the EPA, further providing an opportunity for the blurring of the EPA’s independence.

Finally, the possibility of third party enforcement rights was also raised as an additional avenue for stakeholders to ensure compliance with the EPBC Act, drawing particular attention to the Victoria legislation that currently utilises third party enforcement mechanisms.

National Environmental Standards

The proposed National Environmental Standards (NES) are benchmarks aiming to:

• Create new, concrete standards to provide more effective environmental protection
• Make standards more uniform across a wide range of areas, including ensuring more consistent decisions are made by public officers, and
• Provide increased clarity and certainty for businesses and the general public in how they can meet the standards.

Significant features of the NES include:

• ‘Single-touch’ approvals – as the States and Territories may become accredited to undertake assessments on behalf of the Commonwealth, decision-making processes will be sped up. The Federal Government will still play a key role in undertaking assessments, although it is not entirely clear how decision-making responsibilities will be split, and it may depend on the agreement a state or territory reaches with the Commonwealth.
• Consultation – in developing the NES, broad consultation is being undertaken with many stakeholders, such as state and territory governments and First Nations peoples.
• Mandatory review – the NES will be subject to mandatory regular review to ensure that they continue to be relevant and effective.
• Matters of National Environmental Significance – this is one of the first NES’ under development, and is proposed to:
  • avoid unacceptable impacts on matters of national environmental significance
  • deliver net-positive outcomes

Further NES’ are proposed to create a uniform approach to regulation of nuclear activities, require greenhouse gas emissions estimates in project assessments, and regulate Regional Forest Agreements regarding the protection of forests.

Strengthened environmental offsets

Offsets are measures to alleviate environmental impacts after all mitigation measures are taken. The new reforms propose to link offsets to an NES, and to strengthen their application.

If a party is unable to comply with an offset under the NES, it will be made to contribute a conservation payment. This is designed to provide a net positive environmental outcome, so the payments may be substantial.

Nature repair market

The proposed nature repair market – along with the offsets’ conservation payments – seeks to create new ways to invest in the environment to ensure net positive environmental outcomes are achieved.

The nature repair market will include:

• Criteria on what biodiversity projects are ‘certified’
• A public register for biodiversity projects to provide information for buyers and sellers
• Biodiversity certificates which may be traded to compensate or offset damage to the environment

Regional Plans

The following Regional Plans are proposed:

• Areas of High Environmental Value – development will largely be prohibited, and may include:
  • Habitats of threatened species
  • Ramsar wetlands
  • World Heritage or National Heritage sites
• Areas of Moderate Environmental Value – development may be allowed, subject to conditions, such as:
  • A requirement to avoid or offset negative environmental impacts, and if that is not possible, make a conservation payment to achieve a net positive environmental outcome
• Development Priority Areas – no separate Federal environmental approval will be required, however the usual planning and environmental approvals may be required at a State or Territory level.

This is a significant proposal as it seeks to catalogue and clarify the availability of land for planners and developers. An NES will be developed for regional planning, and a Regional Planning Framework has been developed with stakeholders providing high-level guidance to planners and developers. The first round of regional planning is scheduled for completion in 2028.

However, transitional provisions may need to be looked at closely for developments in progress at the time the reforms come into effect. It is also not clear if all land in Australia will be subject to a Regional Plan or if businesses or individuals will have the opportunity to comment on the plans.

Reformed cultural protection laws for First Nations peoples

The Government also has flagged new cultural heritage protection laws for First Nations peoples, citing that the current system is too uncertain and occurs too late in the consultation process. These laws will be standalone but will be developed in parallel with the reforms to the EPBC Act.

The substance of these changes are not yet clear.

What's next?

The Federal Government has foreshadowed that a draft bill will be released by mid-2023, which will be released for comment and will involve consultations with ‘stakeholders’ including both state and local governments.

However, the Federal Government does not hold a majority in the Senate, so will require Senators to cross the floor to support this bill. Time will tell whether the bill will easily pass or whether it will become bogged down in a quagmire.

This e-alert is part of a series of updates covering the legislative response to the Report.