Kylea Tink (North Sydney, Independent) Share this | Link to this | Hansard source

TINK () (): by leave—I move amendments (1) to (7), as circulated in my name, together:

(1) Clause 3, page 2 (lines 13 to 17), omit the clause, substitute:

3 Objects

The objects of this Act are as follows:

(a) to establish Environment Protection Australia to support the delivery of accountable, efficient, outcomes-focused and transparent environmental regulatory decision-making;

(b) to promote public trust in environmental regulatory decision-making through:

(i) publication of comprehensive information within reasonable timeframes in relation to the decisions of the CEO of Environment Protection Australia; and

(ii) requiring transparency for those decisions; and

(iii) ensuring opportunities for the public to inform those decisions.

(2) Clause 5, page 3 (after line 18), after the definition of CEO, insert:

Charter of Consultation means an instrument made under subsection 23B(1).

(3) Clause 13, page 9 (line 4), after "by", insert "or under".

(4) Clause 13, page 9 (after line 8), at the end of subclause (2), add:

Note: Subparagraph (c)(ii) ensures that the CEO's functions include a function delegated to the CEO under another law of the Commonwealth.

(5) Clause 15, page 10 (lines 3 to 10), omit the clause, substitute:

15 Simplified outline of this Part

The Minister may give the CEO a statement of the Minister's expectations for the CEO and EPA. The CEO must respond to any such statement of expectations with a statement of intent.

The CEO must establish and maintain on EPA's website registers containing information in relation to certain decisions of the CEO (called registrable decisions), certain approvals and other actions by the CEO, and any other matters prescribed by the rules that relate to a law mentioned in section 13. These registers are to contain information to inform public participation in environmental decision making.

The CEO must make a Charter of Consultation for the CEO's decision-making when performing the CEO's functions. The CEO must have regard to that Charter, and take certain additional steps, to ensure meaningful public participation in that decision-making.

(6) Clause 18, page 13 (after line 4), after paragraph (1)(a), insert:

(aa) a register of the following:

(i) audits, compliance reports and plans of management relating to approvals under the Environment Protection and Biodiversity Conservation Act 1999;

(ii) documents relating to compliance and enforcement of approvals under that Act;

(iii) any other documents prescribed by the rules that relate to approvals, or post-approval actions, under that Act;

(7) Clause 18, page 13 (after line 6), after subclause (1), insert:

(1A) A registrable decision is to be included on the register of registrable decisions within 28 days after the day the decision is made.

I actually had the opportunity to speak about these amendments yesterday. They focus very much on the timeframe for community input that's currently within this transitional bill, as discussed with the minister and her team previously.

At the moment, the timelines in the bill are quite opaque and vary from ministerially driven through to 10 days. I'm seeking to increase that to a standard 40 days across this bill. I know that on many occasions in the past we have seen projects go through in what I think are quite unreasonable timelines, in that they're announced in the week leading up to Christmas and communities are given until the end of the first or second week in January to respond. That makes it incredibly difficult, so I commend these amendments to the House and thank the minister and her team for considering them.

Question negatived.

Sophie Scamps (Mackellar, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (11), as circulated in my name, together:

(1) Clause 2, page 2 (table item 1), omit the table item, substitute:

(2) Clause 4, page 2 (line 20), after "Australia,", insert "establishes the Board of EPA".

(3) Clause 4, page 2 (after line 20), after "the CEO of EPA.", insert:

The Board's functions include appointing the CEO, determining policies and long-term strategic plans for the CEO, advising the CEO and assessing and reporting on the CEO's performance of the CEO's functions.

(4) Clause 4, page 3 (line 2), omit "the CEO and".

(5) Clause 4, page 3 (lines 3 to 5), omit "the CEO's independence by directing the CEO in the performance or exercise of the CEO's functions or powers", substitute "the Board's or the CEO's independence by directing them in the performance or exercise of their functions or powers".

(6) Clause 5, page 3 (after line 17), after the definition of advisory group, insert:

Board: see section 11A.

Board member means a member of the Board and includes the Chair.

(7) Clause 5, page 3 (after line 18), after the definition of CEO, insert:

Chair: see subsection 11D(5).

Deputy Chair: see subsection 11D(5).

(8) Clause 5, page 3 (before line 29), before paragraph (a) of the definition of entrusted person, insert:

(aa) a Board member; or

(9) Clause 5, page 4 (lines 4 to 7), omit paragraph (d) of the definition of entrusted person, substitute:

(d) a person engaged under section 23 of the Public Governance, Performance and Accountability Act 2013 by the Board under a written agreement to assist in, or advise in relation to, the performance of the Board's functions or the CEO's functions; or

(10) Clause 5, page 4 (after line 14), after the definition of EPA, insert:

former judge means:

(a) a former Justice of the High Court; or

(b) a former judge of the Federal Court of Australia; or

(c) a former judge of the Supreme Court of a State or Territory.

Indigenous person means a person who is:

(a) a member of the Aboriginal race of Australia; or

(b) a descendant of an Indigenous inhabitant of the Torres Strait Islands.

(11) Clause 8, page 6 (lines 3 to 7), omit the clause, substitute:

8 Simplified outline of this Part

This Part establishes the Board of EPA and the office of the CEO of EPA. It also establishes EPA for the purposes of assisting the Board and the CEO in the performance of their functions. The Board is the accountable authority of EPA.

Along with many Australians across the country, I was disappointed when in April this year the environment minister announced that the Albanese government had postponed its promise to fix Australia's broken nature laws under the Environment Protection and Biodiversity Conservation Act. The minister has said that the plans have simply been pushed back, but, with no firm commitment to get them passed through parliament before the next election, it may be that these broken laws have a good chance of remaining broken. This is why the opportunity must be grasped right now to strengthen our national nature laws meaningfully.

We've been debating today the so-called stage 2 of the EPBC Act reforms, which will establish two bodies: Environment Protection Australia and Environment Information Australia. These are indeed crucial bodies that do need to be established, and I commend the government for creating them. The problem, however, is that these bodies, once established, will only oversee our fundamentally broken laws—laws which for the past 25 years have failed to protect nature in this country. This is why I bring a series of amendments to the bills today, while there's the chance to fix some of the most egregious failings of the EPBC Act as it currently stands. Australia was hopeful after the 2022 election—hopeful of climate action and hopeful of nature protection. Unfortunately, two years down the track, we continue to watch on while our native forests, including critical habitat of threatened species, continues to be clear-felled. We watch on while land-clearing for the beef industry continues at a rate that makes Australia a global deforestation hotspot, along with the Amazon and Borneo. And we watch on while the list of threatened species in this country continues to grow rather than contract.

I've been working on a range of amendments with dedicated environmental organisations. They all agree that these amendments I bring forward today are both critical and urgent but also simple and achievable. In consultation with these groups, I've drafted amendments which do three things to protect our bushland and our trees. The first is to repeal the exemption for regional forestry agreements in the EPBC Act.

Logging conducted under these agreements is currently exempt from needing federal government approval. My amendments would fix this by simply requiring that, like all other conduct that may have a significant impact on our environment, logging under these regional forestry agreements must be referred for assessment and approval under the EPBC Act. It is a simple ask. As Professor Graeme Samuel himself said:

We ought to get rid of those RFAs. They should never have been introduced in the first place … I'd be urging state governments to get rid of them … But they shouldn't be there. I thought they were a shocker, frankly.

The second amendment is similar. It would repeal what is called the continuous use exemption. Under this exemption, land-clearing activity on private land that was occurring before the environment laws were introduced in 1999 is allowed to continue. This exemption is being exploited and is largely responsible for making Australia a global deforestation hotspot. It must be repealed. Again, this amendment does not prohibit land clearing; it simply requires that you need approval if you want to clear land, to ensure that critical habitat for threatened or migratory species is not being destroyed.

The third amendment is the insertion of a new provision that puts beyond doubt the circumstances in which logging needs federal government assessment and approval. This amendment makes clear that any area over 20 hectares where threatened or migratory species may exist must be referred for assessment under the national EPBC Act. These amendments do not ban anything or prohibit anything; they simply put land clearing and native forest logging on the same footing as other activities which require federal government approval. If approved, they can still go ahead.

It is possible to take the opportunity right now to fix these clearly broken parts of our national environment laws. These amendments are urgent, and they are possible. There is no need to delay, and our wildlife can't wait. I commend these amendments to the House.

Tanya Plibersek (Sydney, Australian Labor Party, Minister for the Environment and Water) Share this | Link to this | Hansard source

I thank the member for Mackellar for her thoughtful contribution, the work she's done in preparing these amendments and the spirit in which she offers them. I know that she is absolutely determined to see better outcomes for nature in Australia. They are very important issues that she has raised, and I've been working overtime on exactly these issues because I agree with her that they are absolutely critical to the success of nature protection in Australia. But, as I have sought to explain, the bills we are dealing with today and have been dealing with in the last few days are setting up the mechanisms our new laws will operate under. The new laws themselves will be part of stage 3 of our law reform process, and I'm not willing to bring forward the complex negotiations that have to go into the issues she has raised into stage 2. We'll continue to work on them for stage 3.

In fact, I've made clear that there are six priority areas where there is still a pretty broad set of disagreements between stakeholders on a way forward; they're the six areas the department is particularly focused on with continuing consultations. Regional forestry agreements is one of these. We have said that national environmental laws will apply to regional forestry agreements, and we're working through right now how we do that. The other areas where we're continuing to focus our consultations are the assessment and approvals processes, restoration contributions, First Nations engagement, exemptions and continuing use provisions—I will go to those suggestions of the member for Mackellar in a moment—and climate change considerations.

Returning to regional forestry agreements: it's important to note that close to 90 per cent of forest products now come from plantation timbers. We want to see more plantation forests and more jobs that come with them. We're investing $300 million to grow plantations, to modernise our timber manufacturing infrastructure and to build the skills of our forestry workforce. We've also put aside $500 million in the National Reconstruction Fund for forestry, fisheries and agriculture. Last year, the Minister for Climate Change and Energy changed the rules so that burning native timber is no longer classed as renewable energy. It is bizarre to think that it ever did.

I'm not going to agree to amendments to regional forestry agreements that affect an entire industry and the jobs that rely on it without a thorough, thoughtful and consultative process. The same applies to continuing use provisions. I'm currently consulting on options for tightening and clarifying continuing use provisions, but these are complex issues, and I want to work through them with stakeholders in a mature and methodical way. I thank the member for her contribution.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question before the House is that the amendments (1) to (11) moved by the honourable member for Mackellar be agreed to.

Allegra Spender (Wentworth, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (3) on the sheet revised 2 July 2024, as circulated in my name, together:

(1) Schedule 2, item 170, page 30 (before line 7), before subsection 515AAA(1), insert:

Delegations

(2) Schedule 2, item 170, page 30 (after line 25), after subsection 515AAA(3), insert:

Publication requirements

(4) An instrument of delegation under subsection (1) or (2) must be published on the Department's website as soon as practicable after it is made.

(3) Schedule 2, item 170, page 30 (after line 25), at the end of section 515AAA, add:

Quarterly reporting requirements

(5) If a delegation under subsection (1) of a power or function of the Minister under subsection 74B(1), 75(1) or 133(1) (a reportable provision) is in force in a reporting quarter, the Minister must prepare a report containing information on each decision made in the reporting quarter under the reportable provision either personally by the Minister or by the delegate.

(6) The report must be prepared as soon as practicable after the end of the reporting quarter.

(7) The Minister must arrange for the report to be published on the Department's website.

Definitions

(8) In this section:

reporting quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December.

The creation of Environment Protection Australia is an important step in the right direction. There are many welcome changes within the package of bills before the House, but there are also significant issues that need to be fixed. These issues go to transparency, accountability and the independence with which the new EPA will operate, and they should be addressed before the bills proceed to the Senate. The House should be a place where legislation is improved, not just rubberstamped.

One of the main reasons for having an EPA is to take important environmental decisions out of the hands of politicians. We want to have independent experts assess projects in an unbiased and even-handed way, free from political interference and lobbying by special interests. This independence must be at the core of the new EPA. I accept that in some special cases the minister should retain the prerogative to make a particular decision. The minister and the government are the only ones who are ultimately accountable to the Australian people, so it is appropriate that the minister retains the right to call in a particular project which they may have previously delegated to the independent EPA. However, what is not appropriate is for the minister to call in a project and not tell the Australian people that they have done so. If the minister wants to make a captain's call, they need to be upfront about it. Unfortunately, this transparency is not provided for in the bill.

The bill allows the minister to delegate certain functions to the EPA, but there is no requirement for the details of that delegation to be made public. As a result, we may have no idea which types of decisions will be delegated to the EPA and which ones the minister will keep for themselves. This is despite extensive consultation on ministerial call-in powers over the past year and clear feedback from a range of stakeholders about the need for transparency over what is delegated to the EPA and what is not. Unfortunately, this lack of transparency creates the risk that environmental approvals will be shrouded in the same secrecy as the flawed system of the past.

My amendments would address this lack of transparency. Amendments (1) and (2) require that the instruments of delegation are made public so that we know which decisions a minister is handing over to the EPA and which the minister is designating for themselves. These amendments are constructive and common sense and respond to feedback provided by the environmental community, by the business community and by experts in environmental law. They do not place an unnecessary burden on the government; they merely require transparency on things that the public have a right to know.

My team and I have worked constructively with the minister on these amendments. It is disappointing, therefore, that the government has decided not to support them. I understand the government no longer believe it is necessary to make the changes set out in my amendments because they already intend to provide a similar level of transparency. If this is the case, there should be no issue in providing for this transparency in the legislation. There should certainly be no problem in committing to make the instruments of delegation publicly available. Whilst I take the minister at her word and I know she wants to do the right thing, she cannot guarantee that all future ministers would act with the same degree of integrity. These transparency measures should be included in the legislation, and I urge the government to accept the amendments.

Helen Haines (Indi, Independent) Share this | Link to this | Hansard source

I thank the member for Wentworth for this thoughtful group of amendments, and I rise in support of her on this work. The Nature Positive (Environment Protection Australia) Bill 2024 allows the minister to delegate decision-making powers to the CEO of the EPA. Most environmental approvals will be made by the EPA, but the minister will still hold powers to make some decisions themselves—for example, for large-scale renewable energy or fossil fuel projects.

I want to be really clear. I understand that in some cases a democratically elected representative should make these decisions. Under our Westminster system, the importance of ministerial decisions is clear, valid and critical. But the EPA bill as currently drafted gives the public no line of sight on when and why the minister gets to make those decisions instead of the EPA CEO. In doing so, it gives me pause as to whether the new EPA is truly independent, as the government claims. Again, I take some comfort from what the member for Wentworth has just said about the assurances from the minister, and I don't doubt the integrity of this minister. Again, I like to vote for legislation where it's clear, in black and white, just where these powers lie and that they are futureproofed for all our generations to come.

The member for Wentworth's amendments address the shortfall here really well, I think. They would require instruments of delegation, when the minister delegates her powers to the EPA, to be made public. The amendments would also require the minister to regularly publish reports listing decisions she has made and decisions the EPA CEO has made. I think these amendments are sensible, I think they're simple and I think they would provide much greater transparency on whether the minister's decision-making power is being used to subvert the role of the independent EPA.

The current lack of transparency under the bill creates a risk that the environmental approvals would be shrouded in secrecy and that decisions would be made behind closed doors. When this happens, the public start to question if the decision made is the right one. It comes down to an issue of trust, really. They wonder if a minister has been politically influenced rather than having based their decisions on evidence. The public might start to lose that trust in the ability of decision-makers to actually protect Australia's environment.

Both the 2021 Graeme Samuel review into the state of the environment and the government's own Nature Positive Plan found that a significant factor contributing to the community's lack of trust in the Environment Protection and Biodiversity Conservation Act is a lack of transparency around environmental decision-making. Transparency of ministerial versus EPA decision-making is vital in restoring public trust in our environmental laws. We so need to do that. The public care deeply about these decisions. These decisions impact their communities; they impact on the places where they live.

My constituents of Indi care about the things that may not directly impact them as well. They care about protecting native wildlife, like the Leadbeater's possum, the swift parrot, Sloane's froglet and the Macquarie perch—all endangered species found in Indi. My constituents are frequently contacting my office and stopping me in the street, concerned about the threats to these species and the high rates of extinction. The public want to and should understand how environmental decisions are made and by whom. I urge the government to support the member for Wentworth's amendments.

Tanya Plibersek (Sydney, Australian Labor Party, Minister for the Environment and Water) Share this | Link to this | Hansard source

I want to thank the member for Wentworth and the member for Indi for their contributions. Once again, I absolutely understand where these contributions are coming from. I of course also support greater transparency, and I will make sure that is clear to Environment Protection Australia through my statement of expectations.

The functions and powers of the minister are routinely delegated to officials within the department to ensure the efficient administration of the act. Quite often that is for very routine matters that can most easily be dealt with by senior executives in the Public Service, and they include examples like a delegation to publish notices on the departmental website. Regardless of whether the function or power has been delegated, the minister continues to retain the right to make a decision where they consider it appropriate to do so. The delegations are managed through an instrument of delegation, as the member for Wentworth has explained. These are legal documents. The instrument itself is generally not published, though it could be provided on request, but the department publishes information about the decision that's been made under delegation on its website every time. Whenever a decision is made, that decision notice specifies the name of the person who made the decision and includes whether they are a delegate of the minister. The decisions also include the position of the delegate.

I'm going to table a copy of one of these decisions, which shows the name of the person and their position in the department, just for the interest of members. It shows the action; the controlling provision—what it is that triggered the Environment Protection and Biodiversity Conservation Act referral; who made the decision, the date of the decision; how long the decision is in effect for; and so on. My argument for not accepting the amendments as proposed is that providing the instrument that allows this does not give you more information than is currently available, which is who made the decision and under what circumstances. As for requiring a quarterly report which shows the delegated decisions—it's all available on the website. It just requires someone to sit there and do the work. I don't think doing that is a particularly good use of public servants' time, but I understand why the member wishes for that information to be public, and I assure her that it is.

Allegra Spender (Wentworth, Independent) Share this | Link to this | Hansard source

Very briefly, I just want to respond to the minister's remarks. I understand where the minister is coming from, but there is still the question: what's the problem with publishing the instruments of delegation? I appreciate you're saying that we're going to get the results, but I don't understand the downside of publishing those, and I think that sort of transparency is positive and useful in the parliament and more broadly.

Question negatived.

Zali Steggall (Warringah, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (3), as circulated in my name, together:

(1) Schedule 2, page 13 (after line 24), after item 9, insert:

9A Before section 74B

Insert:

74AAA Meaning of unacceptable impact on a matter of national environmental significance

(1) An action would have an unacceptable impact on a matter described in column 1 of an item of this table if the action would have an impact described in column 2 of that item.

Note 1: The matters in column 1 are matters protected by a provision of Part 3 (see section 34).

Note 2: For item 2, the National Heritage values could be Indigenous values or non-Indigenous values. The National Heritage place could be an area in respect of which Australia has obligations under Article 8 of the Biodiversity Convention.

(2) In this section:

critical to the survival: a habitat is critical to the survival of a species or ecological community if the habitat is necessary:

(a) for activities such as foraging, breeding, roosting or dispersal; or

(b) for the long-term maintenance of the species or ecological community (including the maintenance of species essential to the survival of the species or ecological community, such as pollinators); or

(c) to maintain genetic diversity and long-term evolutionary development; or

(d) in the case of a species—for the reintroduction of populations, or for the recovery, of the species; or

(e) in the case of an ecological community—for the recovery of the ecological community.

register of critical habitat means the register kept under section 207A.

viability: a species or ecological community is viable if the species or community:

(a) is sufficiently abundant and diverse to sustain the full range of biological and ecological functions necessary for their long-term persistence and adaptability, including the ability to respond, recover or adapt to fluctuations or perturbations in the environment; and

(b) is not declining in the wild.

Determining viability includes considering cumulative impacts and impacts arising as a consequence of climate change.

(2) Schedule 2, page 14 (before line 1), before item 10, insert:

9B Division 3 of Part 9

Omit "Minister" (wherever occurring), substitute "CEO".

(3) Schedule 2, item 181, page 32 (after line 10), after the definition of staff of EPA, insert:

unacceptable impact has the meaning given by subsection 74AAA(1).

These amendments are important to ensure we do not waste communities' time and to ensure the proper protection of the environment. The Environment Protection and Biodiversity Conservation Act is an act that needs structural reform urgently. I was here in this parliament when the Samuel review was handed down, and there was an outcry at the coalition's lack of motivation to put some proper protections in. Unfortunately, despite many promises and commitments, we have not really got that increasing protection yet, even with the legislation that we have before this House, so I share the frustrations of many other environmental public interest groups.

Steve Georganas (Adelaide, Australian Labor Party) Share this | Link to this | Hansard source

The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour. The member will have leave to continue speaking when the debate is resumed.