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28 Jul 2020

Media Release: Collaboration, clearer guidelines and better information sharing key to successful reform of Australian environmental laws

28 July 2020: Proposed reforms to improve the operation of Australia's environmental laws will require Federal and State and Territory governments to work together and set clear parameters for decision-making against national environmental standards, according to partners in Clayton Utz's Environment and Planning team.

Professor Graeme Samuel AC recently delivered his Interim Report into the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), which sets ambitious goals for the future of environmental regulation in Australia.

Central to the interim report's recommendations is the development of legally enforceable "National Environmental Standards" to support accreditation of State and Territory arrangements, streamlining and greater confidence in decisions.

Clayton Utz partners Brad Wylynko, Kathryn Pacey and Nick Thomas said several of the recommendations in the interim report were a welcome first step that would, however, require a "significant" program of reform, particularly in determining the detail and scope of the National Environmental Standards and how decision-making, enforcement and assurance responsibility would be shared between governments.

"That detail includes whether the standards are intended to apply to project specific decisions, landscape-scale decisions or decision-making frameworks - or all of the above – and whether the standards need to be written to be applicable to each scenario," said Brad.

Kathryn said the interim report also emphasised the need for improved data and information, which was "critical" to the reform process. "The National Environmental Standards will need the support of adequate and quality information," Kathryn said. "There is merit in the information-sharing concept put forward in the Report, as it will prevent proponents having to pay for the same information to be provided over and over again, and ensure decision-makers have access to the best available information."

Nick noted that the Report also points to issues with the environmental offsets. "There is no question that there are real issues with environmental offsets - they can create challenges for proponents and governments and do not always achieve intended environmental outcomes," he said. However, Nick emphasised that "offsets schemes, properly devised and administered, provide significant opportunities for good environmental outcomes".

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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.