07 Feb 2019

Labor to overhaul federal environmental law if elected

By Nick Thomas, Cloe Jolly

The Federal Labor Opposition has said it will establish a new Federal environmental law, create an independent Commonwealth Environmental Protection Agency and introduce new approval triggers in its first term if elected this year.

There will be significant changes to current federal environmental laws if the Australian Labor Party is elected to government in the next Federal election, which must be held by May 2019.

Making the announcement in his opening address to the Australian Labor Party's 48th National Conference held in Adelaide on 15/16 December 2018, Opposition Leader Bill Shorten also restated Labor's commitment to cut greenhouse gas emissions by 45% against 2005 emissions levels by 2030 and "unleash the potential of a renewable energy revolution".

The aim, according to shadow Environment Minister Tony Burke, is to bring environmental legislation "into the 21st century" and be beneficial to the economy as well as the environment, by creating a faster, more efficient and clearer development approvals process to aid the economy, create jobs and promote sustainable development.

Labor's broad objectives for Federal environmental law

According to the Final Draft of Labor's National Policy Platform for the conference, Labor's broad initiatives include (among other things):

  • establish an Australian Environment Act within the first term of government, to replace Australia's current flagship environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act);
  • ensure the knowledge and rights of Aboriginal and Torres Strait Islander peoples are central in Federal environment protection laws, programs and policies;
  • for the management of prescribed "matters of national environmental significance" (NES matters) (which are protected by statutory approval requirements in the EPBC Act), create strong, well resourced, science-based institutions to administer the law, including a Federal EPA with powers which include conducting public inquiries and enforcing environmental laws;
  • implement clear, "science-based" management, governance and decision-making agencies and structures that are transparent and efficient;
  • improve regulation and streamline environmental assessment processes;
  • manage Australia's environment fairly and efficiently as a foundation for ecologically, socially and economically sustainable jobs; and
  • protect biodiversity and support resilience in the natural environment, directing the Environment Department to establish National Environmental Plans that set targets and approaches to proactively protect the environment.

If some of this sounds familiar, it should. The first independent review of the EPBC Act was undertaken by Dr Allan Hawke in 2009; its first recommendation was that the EPBC Act be repealed and replaced with a new Act, the Australian Environment Act.

At the time, the then Labor Government response to the Hawke review, which had the broad support of the Coalition, did not commit to drafting an entirely new federal environmental legislation, as recommended by the Hawke review. Instead, it proposed a range of amendments based on four key themes:

  • a shift from individual project approvals to strategic approaches, including new regional environment plans;
  • streamlined assessment and approval processes;
  • better identification of national environmental assets, including through provision to lost "ecosystems of national significance" as a matter of national environmental significance; and
  • co-operative national standards and guidelines to harmonise approaches between jurisdictions and foster co-operation with all stakeholders.

Many of those amendments were not made. However, Labor's announcement late last year suggests that some of the ideas underpinning that response may be back on the agenda.

Of the new proposals, two stand out as having the greatest impact on proponents: new approval triggers and the creation of a Federal EPA.

New approval triggers

According to the Draft Platform:

  • Labor will create a land clearing approval trigger in federal environmental legislation, as a response to continuing land clearing across Australia and the threat of climate change;
  • the "water trigger", which requires approval for major coal or CSG projects which are likely to significantly affect water resources, will be expanded to apply to shale or tight formation gas developments that impact water resources;
  • Labor will consider new approval triggers to protect Australia's system of national parks; and
  • to incorporate climate change into federal environmental legislation, Labor may include large-scale greenhouse gas emissions as the basis for another new approval trigger.

There is also potential for "ecosystems of national significance" to be included as a new NES matter and therefore the basis of another approval trigger), to promote landscape-scale approaches to environmental protection (rather than, for example, focusing on particular species).

A Federal EPA

The introduction of a national environment protection body would bring Australia into line with many other Western democracies, but such a body would need strong legislative and financial foundations to be an effective independent environmental institution.

According to Labor, the proposed federal EPA would work together with existing State-based environment protection bodies and deliver independent advice with the aim of improving decisions and policy in the environmental sphere and proactively protecting environmental assets.

The proposed federal EPA would be tasked with conducting public inquiries on important environmental matters, ensuring compliance with environmental laws and providing transparent, scientifically-informed and timely advice to the Minister on environmental approval decisions.

Adding some colour to Labor's proposal – and sketching out the Coalition's position

While this seems an ambitious reform agenda, Labor is yet to articulate what it plans to include in this new federal Environment Act. Bill Shorten has however stated that Labor will establish a group of experts including scientists, environmental lawyers and public policy thinkers to refine and clarify the concepts that will support this reform.

The federal Coalition is yet to make a formal response to Labor's announcements or reveal what its own position is regarding federal environmental legislation in the lead-up to the election.

Another factor in the mix is the fact that the EPBC Act has to be reviewed every 10 years and a new review is due this year. We expect that if a new Labor government delivers its proposed reforms the 10-yearly review will not occur. However, if the Coalition government is returned at the next election, it will need to consider EPBC Act reform as well, which means that whatever the result of the Federal election, one thing (as usual) remains certain – Australia's environmental laws will not be standing still.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.