Thursday, 3 September 2020
Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020; Second Reading
The Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 amends the Environment Protection and Biodiversity Conservation Act 1999, known as the EPBC Act, which is the primary piece of Commonwealth environmental legislation. The EPBC Act contains a statutory requirement to review the operation of the act every 10 years. The second of those 10-yearly reviews is presently underway. The government appointed Professor Graeme Samuel AC, one of Australia's most experienced regulators, to lead that review.
I'd hoped to be here today considering legislation that had been brought forward in good faith consistent with that interim review, that was serious and that had meaningful environmental protections in it, but I regret to say that that is not the case. So I move the following amendment to the motion for the second reading:
That all words after "That" be omitted with a view to substituting the following words:
"The House declines to give the bill a second reading as it is of the opinion that the outdated proposals from the Government ignore recommendations from the Samuel Review and fail to protect the environment, create jobs and provide certainty for business".
On 20 July 2020 the government made public Professor Samuel's interim report. The final report is due in October 2020. The interim report sounded a clarion call about the state of the environment. It said:
The environment and our iconic places are in decline and under increasing threat. The EPBC Act does not enable the Commonwealth to effectively protect and conserve nationally important environmental matters. It is not fit for current or future environmental challenges.
To put that in perspective, I want to talk to you about this seven-year-old Liberal government's failures to protect the environment and conserve biodiversity. Professor Samuel's interim report summarises some alarming examples of decline derived from the 2016 State of the environment report and expert submissions to the EPBC review. As to threatened species and biodiversity, the interim report states:
Australia is losing biodiversity at an alarming rate and has one of the highest rates of extinction in the world. More than 10% of Australia's land mammals are now extinct, and another 21% are threatened and declining. Populations of threatened birds, plants, fish and invertebrates are also continuing to decrease, and the list of threatened species is growing. Although there is evidence of population increases where targeted management actions are undertaken (such as controlling or excluding feral animals or implementing ecological fire management techniques), these are exceptions rather than a broad trend.
Since the EPBC Act was introduced, the threat status of species has deteriorated. Approximately 4 times more species have been listed as threatened than those that have shown an improvement. Over its 20-year operation, only 13 animal species have been removed from the Act's threatened species lists, and only one of these … is generally considered a case of genuine improvement.
That's a pretty sad report of the state of affairs under this current legislation. As to protected areas, the interim report states:
The area of Australia that is protected from competing land uses, for example through national parks, marine reserves and Indigenous Protected Areas, has expanded. However, not all ecosystems or habitats are well represented, and their management is not delivering strong outcomes for threatened species. Consideration of future scenarios indicates that the reserve system is unlikely to provide adequate protection for species and communities in the face of future pressures such as climate change.
As to oceans and marine environments, the interim report states:
Aspects of Australia's marine environment are in good condition and there have been some management successes, but our oceans face significant current and future threats from climate change and human activity.
It goes on to point out:
… submissions pointed to recent evidence of steep declines in habitats across Australia's marine ecosystems—including coral reefs in the Great Barrier Reef, saltmarshes on the east coast, mangroves in northern Australia, and kelp forests in Tasmania.
The 2016 State of the environment report predicted that under a business-as-usual approach—that is, assuming current trends continued and policies or management arrangements were not changed significantly—we would see ecosystem changes including declining quality of ecosystems; continued loss of biodiversity, including habitat loss and extinction of many species of plants and animals; ongoing clearing of native vegetation; changes to the marine environment, including ocean acidification and others; changes to the distribution of species and ecological communities; increased pollution of marine and coastal areas from plastics, with greater impacts on species that could be entangled in the debris; continued or increased erosion in some coastal locations; and modification and loss of foreshore and near-shore shallow water habitats.
These are bleak stories, but even bleaker is the Australian emotional response to some of the loss that we have seen. It seems almost like a long time ago now, but it was not a long time ago that we had the bushfires over the summer. It was only months ago. Burned into the Australian psyche, as if by those bushfires, are the images that we saw coming out of the coverage: the woman who took off her shirt to try to rescue a koala; the animals with missing paws, with terrible burns; and the impact on threatened species, to the extent that there were recent reports that up to three billion animals were killed or displaced in just last summer's bushfires. Australians are deeply distressed—I've had people in tears on my phone to my office, and I know other members have had the same thing—by the damage to the environment and to our species wrought by those terrible bushfires.
Taking into account the evidence and taking into account the national sentiment, it is clear that Australia needs to do more to protect our natural environment and conserve biodiversity. At the same time, the environment law has a significant impact on whether major projects and other developments can go ahead and, if so, under what conditions. As well as having significant consequences for the environment, this has consequences for jobs and investment. Projects and developments that are likely to have a significant impact on a matter of national environmental significance would generally require environmental assessment and approval from the Commonwealth environment minister because of the operation of the EPBC Act.
You could be forgiven for thinking that perhaps the government's woeful record on environmental protection and biodiversity conservation has come about because they've been too focused on administering the projects approvals aspect of the law, but that's not what is going on. The fact is Australia has an environmental crisis and a jobs crisis, and the government are failing woefully on both counts. They're both failing to protect the environment and managing to inject massive unnecessary delays, as well as errors and mismanagement, into the process. The government cut around 40 per cent of the funding to the environment department, and now the Australian people and Australian industry are reaping what this seven-year-old government has sown. Whenever an acceptable project is delayed because of this government's cuts and incompetence or whenever the government gets a decision wrong it delays jobs and causes investment uncertainty.
Recently, we got a very clear picture of just how badly this government's cuts and incompetence have stuffed up environmental decision-making. In June 2020 the Australian National Audit Office released its report Referrals, assessments and approvals of controlled actions under the Environment Protection and Biodiversity Conservation Act 1999. It's got a pretty bland title, but I'll tell you what wasn't bland: the content of that report. This is an uncharacteristically blunt report from an audit office. It's findings reinforced what Labor has been hearing from industry—and I'm sure the government's been hearing this as well—that the government's funding cuts have been putting real pressure on decision-making and have given rise to serious delays. The audit report showed there'd been a 510 per cent blowout in project approval delays. It showed that since 2014 there'd been an explosion in approval delays beyond the statutory time frames from 19 to 116 days. And, in the 2018-19 financial year, 95 per cent of all Morrison government key decisions on major projects were late. Of those key decisions about assessments and about approvals, 95 per cent were late beyond the statutory time frames in that financial year. The audit report also found that 79 per cent of approval decisions were affected by error or noncompliance.
Over the time the government has been in office, the total number of decisions has been going backwards. It's not as if the environmental laws have become more strict or protective. It's very clear the government's cuts and incompetency are the source of these delays. When the Morrison government use the phrase 'green tape', it appears they are talking about the delays that they have caused. I prefer to think of the delays as caused by blue tape—Liberal Party cuts and incompetence, not environmental protections, which tie up decision-making unnecessarily.
The government have tacitly admitted that their cuts are the source of these problems. Late last year they injected some funding to try to reduce the delays. But why on earth did they wait until their seventh year in government to start to clean up the mess that they had made—to try and stem some of the bleeding? What made them think in the first place that they could cut 40 per cent of the environment department's funding without causing significant harm to the environment, to jobs and to investment? Unfortunately, what we're seeing here is straight from the Liberal Party playbook: gut the Public Service, run them into the ground and then use their worsened performance to justify further cuts or outsourcing or, in this case, to attempt to abrogate responsibility entirely. But it doesn't have to be this way.
The Samuel review process is providing a once-in-a-generation opportunity to reform the environmental laws in a way that provides a win-win outcome, with both much-improved environmental protection and more support for jobs creation and investment. Labor doesn't believe that those two objectives are inconsistent with each other. They're not in opposition to each other. With goodwill, with cooperation and with negotiation, it is not beyond the wit and wisdom of Australian parliamentarians, experts, industry leaders, traditional owners, environmentalists and other community leaders to come up with a way forward together.
As I've said, in the course of his review, Professor Samuel has issued an interim report which was provided to the government and ultimately made public. That report was made public on 20 July 2020, though the government had it for some time before that. The report proposes three phases of reform. The first phase was proposed to commence immediately before the final report is issued. The interim report described the first phase as follows:
The interim report elaborated on phase 1 as follows:
The initial phase of reform should fix long-known issues with the EPBC Act within its current construct and set the base for key reform foundations that can be built on and improved over time. The 5 areas of focus for phase 1 reforms are:
It is important to note all the elements of this phase were proposed by Professor Samuel to occur together. When the report was released he said:
The Review encourages consideration of the overall reform direction proposed, rather than its component parts.
Let me therefore talk briefly about all of those elements together from phase 1, as he describes it. The reference to reducing points of clear duplication, inconsistencies, gaps and conflicts in the act is about the drafting and the architecture of the existing legislation. The examples given are things like: defining terms that the review believes need to be clearer, like 'significant' or 'action' or 'continuing use'; reordering the position so it's in a more logical order, for example, by having all the enforcement provisions together rather than distributed through the act; and making the act's provisions less 'verbose' to make them easier to read. These are all examples that I've taken from the interim report. That's what he's referring to in that point.
As to the interim national environmental standards, Professor Samuel has said:
The development of National Environment Standards should be a priority reform measure. Interim Standards could be developed immediately, followed by an iterative development process as more sophisticated data becomes accessible. Standards should focus on detailed prescription of outcomes, not process.
He explained why he thought this was important. He said:
National Environmental Standards will mean that the community and business can know what to expect. Standards support clear and consistent decisions, regardless of who makes them. Where states and territories can demonstrate their systems can deliver environmental outcomes consistent with the Standards, responsibilities should be devolved, providing faster and lower cost development assessments and approvals.
This is what he is saying about these standards and why they're important. At the time, in July, when this was released, the minister said that the government would introduce strong, rigorous environmental standards that had 'buy-in across the board' at the same time as introducing proposed legislative change. That hasn't happened.
The proposed national environmental standards, from the report—these are not my words; I'm describing what the report says—are described as the foundation, or the centrepiece; he uses both those terms. They are the foundation on which the other reforms are proposed to be built. So there is this idea that the government has in this bill, and the idea more broadly—Professor Samuel hasn't, but the government has—of devolving authority to the states. But Professor Samuel's model hinges entirely not just on whether there are some standards in existence, which there don't seem to be yet, but also on the content of them—whether they're good enough, whether they're fit for purpose and whether they're strong enough. He makes it really clear that he doesn't want to see negotiation on a state-by-state basis which leads to a lowest-common-denominator approach. He wants to see national standards that they have to meet.
The devolution proposal which is made here also makes this clear; it's contingent on creating and maintaining trust. That takes us to the other two elements of his proposed phase 1 reforms. On July 20 he said:
Community trust in the EPBC Act and its administration is low.
That's true; we know that. It's very clear. He went on:
To build confidence, the Interim Report proposes that an independent cop on the beat is required to deliver rigorous, transparent compliance and enforcement.
So the interim report sets out a clear pathway for reform. The review is currently convening groups of stakeholders and experts to do that work which is necessary to give effect to it—to draft those proposed interim national standards.
This has given the Morrison government a choice. They could work with the reviewer, the stakeholders and the experts and then propose serious reforms consistent with the Samuel review for this parliament to consider. And I say 'consider'; there are no guarantees in this, but at least a serious set of reforms with buy-in across the board could be considered properly. On the other hand, they could act in a way that is nakedly political and try to ram through something that is completely unacceptable and completely inconsistent with the Samuel review to try to create division.