Matt Thistlethwaite (Kingsford Smith, Australian Labor Party, Shadow Assistant Minister for the Republic) Share this | Hansard source

The Environment Protection and Biodiversity Conservation Act is one of Australia's most important environmental laws. This legislation was established to protect the environment, not to make it easier to destroy it. But unfortunately that is what the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 will do if it is passed. This bill seeks to establish a framework for making, varying or revoking an application of the national environmental standards. It also establishes an environmental assurance commissioner to undertake auditing and monitoring of the operation of bilateral agreements with states and territories and a process for making and enforcing approval decisions. All of that sounds good. But, like a lot of things associated with the Morrison government, particularly when it comes to environmental protection, the devil is in the detail. This bill, like many environmental bills that are introduced by this government, is very Orwellian in its language because, in effect, what it does is it actually undermines the sanctity and the importance of this particular piece of legislation in protecting the environment in the future.

This is a piece of legislation that has recently been independently reviewed. The act has undergone its second statutory 10-yearly review, and that review was conducted by Professor Graeme Samuel. The report was handed to the minister in October 2020 and released to the public in late 2021. The final report that Professor Samuel handed to the government painted a picture of an environmental system, an ecosystem or a natural environment in Australia that is under enormous stress. Australia has a record that we as a nation don't want to have, and that is the highest number of mammal extinctions of any nation in the world. A number of protected species are under enormous threat under our watch, as members of this parliament. The effects of climate change are increasing exponentially year on year on year and causing more and more damage to our environment. We will never forget the bushfires of 18 months ago that cut a swathe across landscapes throughout Victoria, New South Wales and Queensland, in particular, but also Western Australia and, of course, resulted in cities being blanketed in unprecedented amounts of thick smoke for up to months at a time. In his final report, Professor Samuel pointed out that the current EPBC Act 'is ineffective' in that:

It does not enable the Commonwealth to protect and conserve environmental matters that are important for the nation. It is not fit to address current or future environmental challenges.

The report made 38 recommendations to improve Australia's stock of environmental protective legislation, particularly noting the importance of having an agreed and established set of national environmental standards through which prospective projects can be assessed to ensure that we're protecting and maintaining the stock of natural heritage that we have throughout this country and, importantly, that we're consulting with and liaising with First Australians about their views on environmental protection. Let's face it: you don't exist on a continent for 60,000 to 70,000 years unless you're doing something right around protecting the environment, learning to live within that environment and then surviving and thriving. That is of course what our First Nations Australians have been able to do.

Importantly, Professor Samuel recommended a number of interim national standards. This particular legislation gives the minister power to make national environmental standards. The bill doesn't include that set of proposed standards but a framework for them to be implemented. The explanatory memorandum to the bill states that the national standard will be an interim standard until it has undergone its first review, and that will be within a two-year period. The Samuel review included a proposal for a set of interim national standards. These interim national standards were the result of extensive consultation over a period of almost 12 months. It was a consultation with stakeholders in putting these interim national standards together. So here we have the independent reviewer consulting with all parties throughout the country and coming up with a set of interim national standards. Do you think that the government has adopted those standards? Of course not—no, they haven't!

They've developed their own national environmental standards. This is why Australians should be worried and this is why I said at the beginning that the devil is in the detail with this government. Those standards that the government is proposing are vastly different to those which were recommended by Professor Samuel. How do we know this? The government's standards haven't been released publicly, but they have been leaked. They were leaked by someone in the government because they weren't happy with the way that this was headed and what it would mean for environmental protection in Australia.

We know that those leaked standards fall well short of the Samuel version. They're materially the same as draft standards that were prepared in 2014 under the Abbott government, when they were trying to water down the EPBC Act and to introduce a one-stop-shop for environmental approvals so that we didn't have that two-step process of the states and territories and the Commonwealth looking at a proposed project and ensuring that it met all of the necessary environmental standards. So this government is trying to go back to what they proposed in 2014—which, thankfully, was rejected by the parliament at the time—to ensure that they're watering down what was proposed by Professor Samuel. The standards in the Samuel review are more detailed and considerably more protective than the standards proposed by the Morrison government. Samuel also proposed separate and detailed standards relating to Indigenous engagement and participation, compliance and enforcement of data and information. Again, that hasn't been included to the same extent in the government's proposals.

The other point to make about these standards is that they'll be a legislative instrument, but that the first set of them that will be made will not be disallowable. So once this first set are made it's likely that they'll be in place for two years before they become a disallowable instrument and the parliament can have another look at them to see whether or not they're adequate. So, in effect, the government is proposing to have a set of standards that are inferior to what was proposed by Professor Samuel, for the next two years, to ensure that we're not meeting the standard that was set by the independent reviewer.

This new bill will also allow the minister to make a decision that is inconsistent with the national environmental standards where the minister considers it in the public interest, and we all know what that means. We know that means the government will try and undermine those national standards and undermine the protection and conservation of natural environments here in Australia with a view to fast-tracking proposals that ordinarily might not meet the national standards and get approval.

The second element of this bill which is of concern is in relation to the assurance commissioner. This bill establishes an independent statutory position for an environmental assurance commissioner, and the functions are set out in section 501C of the act. They basically relate to monitoring and auditing through a number of agreements, but, in particular, the concern is with the function that the Environmental Assurance Commissioner will have in respect of the monitoring and auditing of the operation of bilateral agreements. These are the agreements between the states and the Commonwealth to streamline the process of environmental approvals. The concern here is that the assurance commissioner will actually be toothless when it comes to ensuring that the national environmental standards are adhered to. Conservation stakeholders are being critical of the bill's model because of the inability for the proposed commissioner to investigate individual decisions relating to projects, and they've labelled it, effectively, as toothless. When the minister introduced this bill the minister was quite specific when she said:

The Environment Assurance Commissioner will not have a role in monitoring or auditing individual decisions.

So the notion of having a tough cop on the beat to police the enforcement of those national environmental standards is completely undermined by this government's own bill—again, there's that great use of Orwellian language of doing the opposite of what the bill actually says it's going to do. It's on that basis that we have deep concerns about this and, indeed, many Australians, particularly those that work in the conservation space, have deep concerns about this.

As I mentioned at the beginning, Australia is a nation that is under enormous pressure when it comes to conserving our natural environment, particularly given the effects of climate change. We've got an unenviable record of having the largest rate of mammal extinctions of any nation in the world. The only way we're going to turn around such a record and protect the numerous species that are going onto that threatened species list on an annual basis and ensure that the Great Barrier Reef survives into the future is if we have a decent set of national environmental standards that are complied with and that are policed by appropriately resourced and empowered organisations. That will ensure we uphold those principles in this act and do what we say with our environmental laws and protect and conserve our natural environment. This legislation should be established to protect the environment, not make it easier to destroy it, but, unfortunately, if this act is passed, that is exactly what it will do.

See this speech in context