Overhaul of Australian environmental laws begins in earnest
13 February 2024
13 February 2024
The Australian Government foreshadowed substantial reforms to Australian environmental laws in December 2022 with its Nature Positive Plan: better for the environment, better for business, which we discussed in detail in our December 2022 alert "Government set to reform national environmental laws but there are some challenges for industry".
The Plan was the Albanese Government's response to Professor Graeme Samuel AC's Final Report on the Independent Review of the EPBC Act, which concluded that the Act, Australia’s central piece of national environmental law, is outdated, ineffective, and requires fundamental reform.
DCCEEW has now released consultation papers to begin the process of implementing these reforms. These papers come from October 2023 and December 2023 targeted consultation with stakeholders.
The consultation papers provide detail about some (but not all) of the proposed changes to Australian environment laws and how they are intended to work in practice, including:
The EPA will be the new, independent enforcement agency and decision maker under the reformed legislation.
Its regulatory functions will include:
The creation of a federal EPA was recommended in the Samuel review and was an election commitment by the Albanese Government.
This represents a major change from the current assessment system under the EPBC Act, where the responsibility for making decisions to approve sits with the Minister for Environment.
The Minister will be able to issue the EPA with a public statement of expectations, but the EPA will otherwise maintain its independence.
While the EPA will assume responsibility for compliance with and enforcement of the new laws, the responsibility for setting direction and policy (such as the determination of nationally protected matters) will remain with the Minister.
The Minister will retain a call-in power whereby they can elect to make a decision that would otherwise be made by the CEO of the EPA. It will be a condition of the exercise of this power that the Minister publish reasons for electing to make the approval decisions, and the reasons for the final approval decision, as soon as practicable.
The Minister cannot make a decision if the decision has already been made by the EPA, and the EPA will remain responsible for enforcing compliance with the Minister's decisions.
We will discuss the EPA's decision making criteria in our later alert on assessment pathways.
There has been no indication that there will be a merits review process, meaning that challenges to the EPA's decisions would be limited to judicial review in the Federal Court. We will monitor further consultation information on this issue.
A key focus of the proposed reforms is to establish better information and data management, reporting and analysis, to ensure that compliance and decision-making is underpinned by quality data.
To meet this objective, the Government has established Environment Information Australian (EIA) within DCCEEW. EIA is proposed to be a data and information regulator with a legislative mandate to improve quality and accessibility of environmental data and information.
According to the 2023-2024 Federal Budget, $51.4 million has been allocated over 4 years for the establishment of the EIA.
It is proposed that EIA will establish and maintain data and information sharing agreements, memoranda of understanding and other agreements with Commonwealth, State and Territory agencies for the purposes of information sharing.
The EIA will provide a public data portal that brings together and makes accessible authoritative data from a range of sources including proponents and State and Territory regulators.
The EIA will also be charged with creating State of the Environment Reports on progress and outcomes relating to the Nature Positive Plan.
The proposed reforms to the EPBC Act will not incorporate reform to federal cultural heritage legislation, which is being addressed as part of a separate process reviewing the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). For more information about this process, see our Native Title Year in Review 2023 article "No new Federal cultural heritage legislation in 2023 – but change is coming".
A NES for First Nations engagement and participation in decision-making is proposed but a draft has not yet been released. For further information see our alert regarding the NESs.
This is the first of a series of alerts about the reforms.
Further alerts will focus on:
The Government had initially set a very ambitious timeline for these reforms, planning to introduce legislation to Parliament before the end of 2023. With public comment now open until 30 March 2024, however, we expect it is unlikely draft legislation will be available until the second half of 2024 and it is unclear if it will be publicly released before being introduced to Parliament.
For now, businesses should consider the potential impacts of the proposed reforms on their business and if they should participate in consultation either directly or through a relevant industry body.
Submissions can be made via DCCEEW's consultation hub until 30 March 2024.
"Government set to reform national environmental laws but there are some challenges for industry" (12 December 2022)
Discusses the Federal Government's Nature Positive Plan.
"No new Federal cultural heritage legislation in 2023 – but change is coming" (25 July 2023)
Discusses Federal cultural heritage law reform.
The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
Readers should take legal advice before applying it to specific issues or transactions.