Will Labor’s environment laws actually address Australia’s biodiversity crisis? Five reasons to be concerned | Australian politics

The Albanian government is revising national environmental laws. He wants the amendments to the Environmental Protection and Biodiversity Conservation Act (EPBC) to be rushed through Parliament before the end of the year.

But should they be?

Australia’s environment is deteriorating and changes aim to reverse this trajectory. But lawyers, experts and advocates say the legislation is full of loopholes and problems.

There has been a lot of talk about whether the government will reach a deal with the Greens or the Coalition, but less about the broader question: can these bills address Australia’s biodiversity crisis?

Here are five areas of concern.

1. Excessive ministerial power

Australia’s nature laws have been widely criticized for giving too much power to the sitting minister to decide whether developments go ahead or not and what conditions are applied to ensure threatened plants, animals and ecosystems are protected.

In his 2020 review of the EPBC Act, Graeme Samuel, the former head of the competition watchdog, said the “unlimited discretion” given to ministers to interpret laws was a major problem that had led to poor outcomes for Australia’s environment.

Experts and activists say there are positive elements to the new legislation. These include requiring that developments result in a “net gain” for the environment and that projects with “unacceptable impacts” be refused. Projects would be assessed against new legally binding national environmental standards.

But they say this is compromised because the minister would still have significant power to interpret whether these requirements have been met, or even whether they apply. In other words, the law does not resolve the problem of ministerial discretion.

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A legal note from Environmental Justice Australia and the Environmental Defenders Office warns that if the legislation is passed in its current form, it would “exacerbate” flaws in the existing EPBC law and lead to poor outcomes for nature by “increasing” ministerial discretion, rather than restricting it.

“Unfortunately, in the Bills the Minister retains a high degree of discretion, potentially undermining the powers that the laws could have to actually protect nature,” said EDO deputy director of policy and law reform Rachel Walmsley.

This is done through subjective and weak language. For example, rather than requiring a development to only be approved if it clearly complies with national standards, it is up to the Minister to decide whether he is “satisfied” that a project “is not inconsistent” with those standards.

The question of whether the impacts of a development are unacceptable or whether a project generates a net environmental gain is also left to the satisfaction of the Minister. The words “the minister is satisfied” appear hundreds of times in the law.

Concerns have also been raised over a new exemption which would allow the minister to approve a project in breach of nature laws if it is in the “national interest”.

Nicola Rivers, co-chief executive of the EJA, said if the government was serious about stopping extinctions, the level of discretion could be set through simple amendments.

“Simply delete the words “the Minister is satisfied” for the key provisions which [otherwise] won’t work the way they’re supposed to work,” she said.

2. Climate, forestry and First Nations expertise is lacking

One of the main criticisms of the legislation is what is missing.

Under existing laws, logging covered by a regional forestry agreement between the federal government and a state government is effectively exempt from federal law protecting endangered species.

The Albanian government had promised to remedy this problem by applying new national environmental standards to the agreements. But the bills submitted to Parliament retain the exclusion of the industry.

Another point on which Samuel’s analysis was scathing was the failure of successive governments to harness the knowledge of Aboriginal Australians to improve environmental management.

The scientist-led Biodiversity Council says the new legislation does not significantly address this problem and fails to incorporate indigenous participation in decision-making. The promised Indigenous engagement standard has not yet been released.

Environment Minister Murray Watt has so far released only one draft standard for matters of national environmental significance, such as threatened species and world heritage areas. He promised a second draft standard on compensation before the bills are voted on. Others are “in development,” but the legislation does not specify which standards are required or within what time frame.

The failure of national environmental laws to adequately address climate change would also continue under the proposed laws. Developers should disclose a project’s national emissions. But anything that would require an assessment of climate damage is “missing”, says Brendan Sydes, of the Australian Conservation Foundation.

3. A problematic framework for compensation

Environmental offsets allow developers to compensate for the damage they cause by restoring the habitat of the same species or ecosystem elsewhere.

This policy faces problems, including that promised compensation is sometimes never delivered or is insufficient to compensate for the environmental loss caused by a development.

The legislation would create a government “restoration contributions” fund that developers could pay into, rather than finding and obtaining compensation themselves.

The legislation would also overturn the ban on offsets that are part of the federal nature repair market.

Experts say the proposals would introduce the kind of problems that have led to major environmental and integrity failures in state-level offset programs, as revealed in a Guardian Australia investigation that triggered several inquiries in New South Wales.

The NSW Auditor-General found a similar state-run fund was poorly monitored and failed to adequately provide necessary compensation intended to help nature.

The government said its fund could enable “landscape” scale restoration, but experts say it would allow developers to “pay to destroy” nature without guaranteeing compensation obligations would be met.

The proposed restoration contribution fund would also relax “like-for-like” rules that require offsets to provide an environmental benefit to the same species or ecosystem affected by a development.

Professor Brendan Wintle, senior adviser to the Biodiversity Council, said it was “absurd”. “Basically you’re saying you can trade koalas with a land snail in Tasmania or a small plant in north Queensland.”

4. Streamlined assessment reduces consultations

The bill removes three methods of assessing projects under Australia’s environmental laws and replaces them with a single, streamlined process that would see projects approved within 30 days.

The government wants to encourage developers to draft their environmental documents in advance to reduce assessment times, especially as Australia attempts to accelerate the deployment of renewable energy.

But Kirsty Howey, from the Environment Center NT, said organizations on the ground were concerned it would reduce transparency, “guthole” community consultation and there would be no guardrails on the sizes and types of projects that could be fast-tracked. Community consultation would be limited to a short period during which a project is first submitted to government to decide whether and what type of assessment it requires.

Georgina Woods, of Lock the Gate Alliance, said the streamlining plan could lead to “quick and dirty approval of all kinds of developments, including mining and fracking, without public consultation”.

5. Vague definition of unacceptable impacts

One of the government’s key reforms is to define “unacceptable impacts” on nature that would prevent overly damaging developments.

Experts welcomed the measure as a positive step, but fear its potential effectiveness could be undermined in the current form of the legislation by vague and subjective concepts such as whether or not a development could “seriously harm the viability” of a species or ecosystem or “cause serious damage to a critical habitat”.

Wintle said such language lacked explicit definitions or thresholds – for example specifying the extent to which the destruction of an ecosystem or a species’ habitat would be considered unacceptable – and was again open to ministerial discretion.

He said an objective set of tests that clearly defined the definition of unacceptable impact would be better for the environment and for the industry.

“Companies won’t waste time on things that shouldn’t clear the first hurdle,” he said.