Biodiversity is in catastrophic decline. Here are three ways to ensure Australia’s conservation law actually works | Atticus Fleming and Andrew Macintosh

AAustralia’s parliament will soon consider proposed reforms to federal environmental laws – known as the Environmental Protection and Biodiversity Conservation Act. Unfortunately, signals from the government suggest this may be yet another reform process that fails to make the progress we need – even though everyone agrees that Australia’s biodiversity is in catastrophic decline.

When introduced, the EPBC Act was a landmark reform led by a Conservative government. For the first time since federation, the Australian Parliament has exercised its full constitutional powers to regulate environmentally harmful actions across all terms of office.

The EPBC Act gave the Federal Environment Minister direct control over actions affecting “matters of national environmental significance”, which include threatened species (such as koalas, potoroos, bandicoots, swift and superb parrots and over 1,400 species of plants) and our world and national heritage sites. Early litigation highlighted the law’s potential: for example, a north Queensland conservation group won an injunction to prevent lychee growers from using large power grids to kill spectacled flying foxes.

Above all, the law established a framework that could evolve. This includes developing regulations to add new “triggers” (which dictate when environmentally harmful activities must be approved) and considering certain categories of actions as part of existing triggers.

Unfortunately, this law has failed to realize its potential. There are three main reasons for this.

First, the Commonwealth bureaucracy failed to enforce existing laws. Measures contrary to the law were taken by the promoters without resulting in sanctions. This includes land clearing which is generally not subject to approval, despite its significant impacts on threatened species.

Second, the mechanisms of the law that could have broadened its reach and ensured its reach were not used. Regulations could have been made to consider that clearing beyond a specified threshold requires approval. A climate change trigger could have been added at any time – indeed, in 2000 a draft climate change trigger was published by the Howard government but was never adopted.

Third, the exemption for indigenous logging should have been phased out. Instead, it was extended.

The reform process does not appear to resolve any of these challenges. Unless there is a reset, reforms will not be able to provide substantial additional environmental protection. Australia’s extinction rate – already one of the highest in the world – will worsen.

The top priority for reforms must be to ensure land clearing is properly regulated. Since the law took effect in 2000, more than 11.5 million hectares of native forests have been cleared, including more than 3 million hectares of remaining (intact) native vegetation. The amendments should prohibit the clearing of remaining vegetation, except in exceptional circumstances where Parliament decides that clearing is necessary for an essential project. Any clearing of mature regrowth (previously cleared vegetation that has regenerated and not been disturbed for 15 to 25 years) should require approval if it exceeds a specified area threshold. And any clearing should only be approved if its impacts on threatened species are fully offset by the restoration of cleared or degraded examples of the same ecosystem.

We propose three simple KPIs for the reform process. Within 12 months, clearing of remaining vegetation should be close to zero and there should be an initial 50% reduction in clearing of mature regrowth. The exemption for native logging should be removed. And all projects that could directly or indirectly result in 50,000 tonnes or more of greenhouse gas emissions per year – on average or at their peak – should trigger the law and all emissions from these projects should be subject to a carbon price consistent with the goals of the Paris Agreement. If the Howard government was able to propose a climate trigger in 2000, it can hardly be described as radical in 2025.

Unfortunately, rather than closing the gaps between the triggers and what is regulated, the reform process has instead focused on the introduction of “national standards” and the creation of an Environmental Protection Authority (EPA) to oversee enforcement of the law’s requirements.

The standards will play an important role in limiting the broad discretion that currently exists when making approval decisions. However, these standards are of limited value if projects that pose the greatest environmental risk – such as land clearing – are not regulated. Likewise, although a properly constituted and independent EPA has its advantages, it is also not the main problem. Failing to address the scope of the law means that the EPA will be a mere observer as land clearing continues unabated, native forests are logged, and our biodiversity continues to decline.

Real reform means that, in five years, we can celebrate measurable improvements rather than reading yet another report on how the law has failed to play its role in reversing Australia’s environmental decline.