Parliamentary Updates

4 July 2024

(Note - these amendments were moved in 3 parts. There are 2 further videos below.) 

(11:39): by leave—I move amendments (1) and (4) to (9) as circulated in my name:

(1) Clause 3, page 2 (lines 13 to 17), omit the clause, substitute:

3 Object

(1) The object of this Act is to establish a national environmental regulator, the Chief Executive Officer of Environment Protection Australia, in order to:

(a) enhance the protection of Australia's environment; and

(b) prevent the degradation of Australia's environment and reduce risks to human health; and

(c) deliver accountable, efficient, outcome-focused, transparent and informed environmental regulatory decision-making, and as a result promote public trust in that decision-making; and

(d) deliver proportionate and effective risk-based compliance and enforcement responses, using data and information, including providing assurance that environmental outcomes are being met.

(2) Paragraph (1)(c) includes decision-making informed by persons who are:

(a) members of the Aboriginal race of Australia; or

(b) descendants of Indigenous inhabitants of the Torres Strait Islands.

(2) Clause 13, page 9 (line 4), after "by", insert "or under".

(3) Clause 13, page 9 (after line 8), at the end of the subclause (2), add:

Note: Subparagraph (c)(ii) ensures that the CEO's functions include a function delegated to the CEO under another law of the Commonwealth.

(4) Page 9 (after line 8), after clause 13, insert:

13A Duties of the CEO

The CEO has the following duties when performing the CEO's functions:

(a) to act consistently with the object of this Act (see paragraphs 3(1)(a) to (d));

(b) to follow principles of ecologically sustainable development;

(c) to act consistently with the human right to a healthy environment for all.

(5) Clause 15, page 10 (line 9), after "registrable decisions)", insert ", offsets relating to approvals under the Environment Protection and Biodiversity Conservation Act 1999".

(6) Clause 16, page 11 (before line 10), before paragraph (3)(a), insert:

(aa) ensure that the statement is consistent with the object of this Act (see paragraphs 3(1)(a) to (d)) and with the CEO's duties set out in section 13A; and

(7) Clause 17, page 11 (before line 24), before paragraph (2)(a), insert:

(aa) ensure that the statement is consistent with the object of this Act (see paragraphs 3(1)(a) to (d)) and with the CEO's duties set out in section 13A; and

(8) Clause 18, page 13 (after line 4), after paragraph (1)(a), insert:

(aa) a register of offsets relating to approvals under the Environment Protection and Biodiversity Conservation Act 1999, including details of the following for each offset:

(i) the species affected by the offset;

(ii) the agreements relating to the offset;

(iii) the specific offset project, including its geographical location.

(9) Page 13 (after line 23), after clause 20, insert:

20A Register of offsets

The rules may make provision in relation to the register of offsets mentioned in paragraph 18(1)(aa), including (without limitation) the information in relation to each offset that the CEO must publish on the register.

Note 1: The rules may, for example, prescribe that the CEO must publish the name of a person with a particular connection to the offset.

Note 2: The CEO is not required to publish certain sensitive information: see section 23.

We must start to acknowledge that our environmental laws are broken and that these bills, while a welcome step, will do little to fix them. This is tranche 2 of the reforms from the minister. Tranche 1 included a water trigger and was passed late last year. It was great to legislate it but unfortunately it is completely ineffective if it is not actually used. I should say to the minister as we consider these amendments and this bill and consider whether it will be effective in improving environmental protection, we do look to past conduct. The problem is, in relation to, for example, the Tamboran and Beetaloo gas projects, a number of us have written to the minister asking her to use those new powers under tranche 1 of the reform to recall that project in to be assessed in its water use. Unfortunately, earlier this week we received a letter from the minister really stating unsatisfactory excuses as to why this gas project remains un-referred under the EPBC Act despite grave concerns and the past history by this proponent of being fined for dumping wastewater. So it begs the question, these legislations before us will not have the effect that is stated unless they are robust, they are utilised and that the intent is in fact very clear and specific. As I understand it, all of the amendments and the discussions that have been had with the minister and her team, while I am very thankful for the opportunity to do that, the difficulty is it does not appear that there is any willingness to actually accept any amendments that are all here and are reasonable to ensure better legislation.

The amendments that I'm moving now are absolutely reasonable and sensible. In fact, some were even included in the minister's and the government's own nature positive consultation documents but later dropped. In particular, they introduced clear objects and duties to ensure the duties of the EPA formed under this legislation and with the minister can achieve, amongst other things, the enhancement of the Australian environment. We need to be specific about the objects of this legislation and the EPA formed under this legislation.

This amendment provides greater transparency and accountability for offsets to ensure proponents are not double-counting offsets, as was reported just recently in the media. The amendments include providing more detailed objects to the Environment Protection Australia bill, linking those objects to the EPA's duties and any ministerial statement of expectations and minister's statement of intent.

My concern is that, as the legislation is currently drafted, without it being explicit in the legislation we will have different ministers who can then make vastly different statements of expectations and statements of intent, which very much lower the bar when it comes to the expectations of how this EPA will work. Objects and duties guide the EPA in its activities and assist decision-making, and they actually make it arm's-length from that political intervention, so it is really important for it to be specific in the legislation. It also keeps the EPA accountable to delivering the outcomes that this legislation seeks to achieve. It is one of the key mechanisms in which decisions can be reviewed by the courts to ensure they are consistent with the objects of the legislation.

I note the minister in my discussions flagged potential legal complexities regarding having objects in this way, but the EPA equivalents in states such as New South Wales and Victoria still contain quite comprehensive objects within their EPA legislations while discharging responsibilities relating to many other environmental laws that also have their own objects. I should say, I did a search that all the laws this EPA would essentially enact and not all have detailed objects, so there are gaps that need to be addressed. The minister's own press release on the tranche 2 reforms recognised the concerning results also of an offsets audit and the need to urgently strengthen the enforcement of offsets. Yesterday, the media reported that the department's audit of 20 offset sites showed that 30 per cent of sites had worse conditions than the offsets plan and that two sites overlapped with existing offset sites. So I'm also moving an amendment to include an additional register of offsets to avoid this overlap. This will provide greater transparency about where offsets have been secured and which offsets have been secured, and that they're continuing in perpetuity. I also wholly support the amendments moved by the member for North Sydney to improve transparency through documentation having to be registered and through definitions. It's important that communities can see the reasoning of the decision-making body and that there's transparency around that—not just a duty to the proponent of an application but also that it states that duty to communities.

I note that further amendments must be made in tranche 3, and we have been promised that those are coming, especially around offsets and like-for-like. (Time expired)

The DEPUTY SPEAKER ( Mr Buchholz ): Honourable member, you have gone over time. Would you like to continue? Do you seek continuation?

Ms STEGGALL: Yes, thank you, Mr Deputy Speaker Buchholz. I welcome the establishment of the EPA to bring independence and rigour to a system that we all acknowledge is broken. There's no doubt about that; we need a strong cop on the beat. But that cop, Environment Protection Australia, will only be able to do what the powers in this legislation and the objects set out in it allow. That's why it's so important for them to be specific and to be included. I should say that this was, as I've said already, in the minister's and the department 's own initial consultation process and document. I'm concerned that the minister has lost the opportunity to reach the full potential of the EPA by failing to adopt these and the other amendments proposed by members of the crossbench.

 

(13:28): by leave—I move amendments (1) to (3), as circulated in my name, together:

(1) Schedule 2, page 13 (after line 24), after item 9, insert:

9A Before section 74B

Insert:

74AAA Meaning of unacceptable impact on a matter of national environmental significance

(1) An action would have an unacceptable impact on a matter described in column 1 of an item of this table if the action would have an impact described in column 2 of that item.

Unacceptable impacts on matters protected by a provision of Part 3
Item	Column 1 For this matter protected by a provision of Part 3:	Column 2 An impact on the matter would be unacceptable if the impact would have:
1	the world heritage values of a declared World Heritage property	(a) a significant impact within the boundary of the property; or (b) a significant direct or indirect impact on the world heritage values of the property.
2	the National Heritage values of a National Heritage place	a significant direct or indirect impact on the National Heritage values of the place.
3	the ecological character of a declared Ramsar wetland	(a) a significant impact within the boundary of the wetland; or (b) a significant direct or indirect impact on the ecological character, or on individual attributes of the ecological character, of the wetland.
4	a listed threatened species	(a) a significant impact on a relevant area listed on the register of critical habitat; or (b) a significant impact on habitat that is critical to the survival of the species; or (c) a significant impact on the viability of the species; or (d) a significant impact that is likely to result in the species becoming eligible to be listed in a more threatened listing category.
5	a listed threatened ecological community	(a) for a critically endangered ecological community—a significant impact; or (b) for an endangered ecological community—a significant impact; or (c) for a vulnerable ecological community: (i) a significant impact on a relevant area listed on the register of critical habitat; or (ii) a significant impact on habitat that is critical to the survival of the ecological community; or (iii) a significant impact on the viability of the ecological community; or (iv) a significant impact that is likely to result in the species becoming eligible to be listed in a more threatened listing category.
6	a listed migratory species	(a) an impact on a relevant area listed on the register of critical habitat; or (b) a significant impact on habitat critical to the survival of the species; or (c) a significant impact to the lifecycle (breeding, feeding, migratory pathways or resting behaviour) of an ecologically significant proportion of the population of the species; or (d) a significant impact on the viability of the species.
7	the environment in a Commonwealth marine area	(a) a significant impact on the viability of an ecological community in the area; or (b) a significant impact on the heritage values of the area.
8	the environment in the Great Barrier Reef Marine Park	a significant impact that is inconsistent with the maintenance of the environment, biodiversity or heritage values of the Park, or of any of the Park's individual components.
9	a water resource resulting from: (a) an unconventional gas development; or (b) a large coal mining development	a significant impact on the integrity of hydrological or hydrogeological connections associated with the water resource
10	a matter not covered by any of the above items	a result prescribed by the regulations.

Note 1: The matters in column 1 are matters protected by a provision of Part 3 (see section 34).

Note 2: For item 2, the National Heritage values could be Indigenous values or non-Indigenous values. The National Heritage place could be an area in respect of which Australia has obligations under Article 8 of the Biodiversity Convention.

(2) In this section:

critical to the survival: a habitat is critical to the survival of a species or ecological community if the habitat is necessary:

(a) for activities such as foraging, breeding, roosting or dispersal; or

(b) for the long-term maintenance of the species or ecological community (including the maintenance of species essential to the survival of the species or ecological community, such as pollinators); or

(c) to maintain genetic diversity and long-term evolutionary development; or

(d) in the case of a species—for the reintroduction of populations, or for the recovery, of the species; or

(e) in the case of an ecological community—for the recovery of the ecological community.

register of critical habitat means the register kept under section 207A.

viability: a species or ecological community is viable if the species or community:

(a) is sufficiently abundant and diverse to sustain the full range of biological and ecological functions necessary for their long-term persistence and adaptability, including the ability to respond, recover or adapt to fluctuations or perturbations in the environment; and

(b) is not declining in the wild.

Determining viability includes considering cumulative impacts and impacts arising as a consequence of climate change.

(2) Schedule 2, page 14 (before line 1), before item 10, insert:

9B Division 3 of Part 9

Omit "Minister" (wherever occurring), substitute "CEO".

(3) Schedule 2, item 181, page 32 (after line 10), after the definition of staff of EPA, insert:

unacceptable impact has the meaning given by subsection 74AAA(1).

These amendments are important to ensure we do not waste communities' time and to ensure the proper protection of the environment. The Environment Protection and Biodiversity Conservation Act is an act that needs structural reform urgently. I was here in this parliament when the Samuel review was handed down, and there was an outcry at the coalition's lack of motivation to put some proper protections in. Unfortunately, despite many promises and commitments, we have not really got that increasing protection yet, even with the legislation that we have before this House, so I share the frustrations—

The DEPUTY SPEAKER ( Ms Claydon ): In accordance with the standing order 43 the debate may be resumed at a later hour and the member will have leave to continue speaking on the debate when it is resumed.

(16:21): Further to my earlier comments in relation to the amendments that I have moved, I refer to the amendment in relation to introducing unacceptable impacts into this legislation. What we often have are situations where communities are dragged out for years trying to fight projects, and it should really be clear from the outset that they are simply not acceptable projects because of their unacceptable impact.

The Environment Protection and Biodiversity Conservation Act 1999 refers to both 'significant impacts' and 'unacceptable impacts', yet fails to adequately define either within the act. 'Significant impacts' does have a 40-page guidance documents provided by the department, but 'unacceptable impacts' on matters of national environmental significance is a term that is used in the context of what is clearly unacceptable. Yet, in the eyes of many proponents, they will still apply for a project and drag that community for years on end. Clearly, what might appear as unacceptable is anything but—the term has been the subject of prolonged cases illustrating that uncertainty around the term and the impacting proponents, as well as adversaries of proposed developments. Most concerning, though, is the risk that, as a result of 'unacceptable impacts' not being clearly defined, actions that arguably will cause unacceptable impacts to nevertheless proceed, risking a matter of national significance.

The amendment that I have proposed deals with this concern. It is in the form of a table clearly outlining unacceptable impacts for each matter of environmental significance. It would not only protect the environment but also save proponents time and money, with clear certainty about what unacceptable impacts actually are, and the practical implications of this amendment are significant. Arguably, with clear definitions, unacceptable projects such as the Woolworths one around the New South Wales Central Coast distribution centre, where there was an issue of expanding into critical habitat of endangered flora and fauna, would not have been able to proceed and drag that community for so long. Similarly, the development in Toondah Harbour has a history spanning nearly a decade of disputes under the EPBC Act. Approval was initially rejected for 'unacceptable impacts' only to then be accepted by then environment minister Josh Frydenberg. Again, certainty for communities is what is needed.

The other amendment that is proposed is in relation to making sure that the EPA is a tough cop on the beat by providing the power to amend conditions. Too often, despite robust conditions being imposed on a proponent, there is a failure to comply with conditions and then, rather than the proponent genuinely suffering the real consequence of that failure to comply, we at times see conditions watered down, and that is not in the best environmental interest.

I commend these amendments to the minister. I have had discussions and I understand she is not supporting them but I do look forward to further discussions to make sure that we strengthen this. There are many people in the community and around Australia who are very concerned that unless tranche 3 genuinely deliver stronger protections for the environment, this whole enterprise will have failed to address the concerns raised in the Samuel report.

Question negatived.