Overhaul of Australian environmental laws begins in earnest

Public consultation on new "Nature Positive" laws open until 30 March 2024

What you need to know

• The Australian Department of Climate Change, Energy, the Environment and Water (DCCEEW) has released consultation papers and a set of draft National Environmental Standards (NES). These are part of a package proposing substantial reforms to Australian environment legislation to replace the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). 
• This is the Australian government's next step in implementing the commitments made in its Nature Positive Plan: better for the environment, better for business.
• The consultation papers provide detail about some of the proposed changes and how they are intended to work in practice, but much is still unknown.
• This is the first in a series of alerts about the reforms. It provides an overview of the reforms and details of the proposed new Environment Protection Australia (EPA) and Environment Information Australia (EIA). Further alerts will focus on the NES and assessment pathways.

What you need to do

• Businesses should consider the potential impacts of the proposed reforms on their business and if they should participate in consultation either directly or through a relevant industry body.  
• Submissions can be made via DCCEEW's consultation hub until 30 March 2024.

Nature Positive Plan reforms

The Australian Government foreshadowed substantial reforms to Australian environmental laws in December 2022 with its Nature Positive Plan: better for the environment, better for business, which we discussed in detail in our December 2022 alert "Government set to reform national environmental laws but there are some challenges for industry".

The Plan was the Albanese Government's response to Professor Graeme Samuel AC's Final Report on the Independent Review of the EPBC Act, which concluded that the Act, Australia’s central piece of national environmental law, is outdated, ineffective, and requires fundamental reform. 

DCCEEW has now released consultation papers to begin the process of implementing these reforms.  These papers come from October 2023 and December 2023 targeted consultation with stakeholders.

Overview of consultation papers

The consultation papers provide detail about some (but not all) of the proposed changes to Australian environment laws and how they are intended to work in practice, including:

• Australian EPA - The establishment of a new, independent national environmental protection agency, Environment Protection Australia (EPA), tasked with overseeing and deciding approvals, compliance, and enforcement.  
• National Environmental Standards (NES) – Creation of NES for topics including protected matters, consultation, and data and information management.  So far, four draft NES have been published, with two more still under development.  This was a key recommendation in the Samuel review.  We will discuss the NES further in a later alert.
• New assessment pathways – Changes to streamline assessment pathways, by providing a "standard" assessment pathway and a new pathway for "low impact" actions.  There will be increased obligations on proponents to self-assess and consult prior to making an application.  Proponents will be required to do more earlier, with less certainty from the regulator.  We will discuss this further in a later alert.
• Environmental offsets reform – the reforms propose that proponents must compensate for all residual significant impacts by delivering restoration activities or making restoration contributions.  There will be a NES for Restoration Actions and Restoration Contributions.
• Improved conservation planning arrangements – for wildlife and places underpinned by the NES.
• New data and information regulator  – The establishment of Environment Information Australia (EIA) with a legislative mandate to improve quality and accessibility of environmental data and information.

A new federal EPA

The EPA will be the new, independent enforcement agency and decision maker under the reformed legislation.  

Its regulatory functions will include: 

• project assessments, decisions and post-approvals work (compliance, monitoring and enforcement);
• issuing permits and licenses; and
• assuring that States, Territories and Commonwealth decision-makers meet their obligations, such as applying NES, under accredited arrangements.

The creation of a federal EPA was recommended in the Samuel review and was an election commitment by the Albanese Government.  

This represents a major change from the current assessment system under the EPBC Act, where the responsibility for making decisions to approve sits with the Minister for Environment.

The Minister will be able to issue the EPA with a public statement of expectations, but the EPA will otherwise maintain its independence. 

While the EPA will assume responsibility for compliance with and enforcement of the new laws, the responsibility for setting direction and policy (such as the determination of nationally protected matters) will remain with the Minister.

The Minister will retain a call-in power whereby they can elect to make a decision that would otherwise be made by the CEO of the EPA. It will be a condition of the exercise of this power that the Minister publish reasons for electing to make the approval decisions, and the reasons for the final approval decision, as soon as practicable. 

The Minister cannot make a decision if the decision has already been made by the EPA, and the EPA will remain responsible for enforcing compliance with the Minister's decisions.

We will discuss the EPA's decision making criteria in our later alert on assessment pathways.

There has been no indication that there will be a merits review process, meaning that challenges to the EPA's decisions would be limited to judicial review in the Federal Court.  We will monitor further consultation information on this issue.

A new data and information authority

A key focus of the proposed reforms is to establish better information and data management, reporting and analysis, to ensure that compliance and decision-making is underpinned by quality data.  

To meet this objective, the Government has established Environment Information Australian (EIA) within DCCEEW. EIA is proposed to be a data and information regulator with a legislative mandate to improve quality and accessibility of environmental data and information.  

According to the 2023-2024 Federal Budget, $51.4 million has been allocated over 4 years for the establishment of the EIA.  

It is proposed that EIA will establish and maintain data and information sharing agreements, memoranda of understanding and other agreements with Commonwealth, State and Territory agencies for the purposes of information sharing. 
The EIA will provide a public data portal that brings together and makes accessible authoritative data from a range of sources including proponents and State and Territory regulators.  

The EIA will also be charged with creating State of the Environment Reports on progress and outcomes relating to the Nature Positive Plan. 

Federal cultural heritage law reform

The proposed reforms to the EPBC Act will not incorporate reform to federal cultural heritage legislation, which is being addressed as part of a separate process reviewing the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).  For more information about this process, see our Native Title Year in Review 2023 article "No new Federal cultural heritage legislation in 2023 – but change is coming".  

A NES for First Nations engagement and participation in decision-making is proposed but a draft has not yet been released.  For further information see our alert regarding the NESs. 

Our alert series about the reforms

This is the first of a series of alerts about the reforms. 

Further alerts will focus on:

• National Environmental Standards (NES); and
• Assessment pathways.

Next steps?

The Government had initially set a very ambitious timeline for these reforms, planning to introduce legislation to Parliament before the end of 2023.  With public comment now open until 30 March 2024, however, we expect it is unlikely draft legislation will be available until the second half of 2024 and it is unclear if it will be publicly released before being introduced to Parliament. 

For now, businesses should consider the potential impacts of the proposed reforms on their business and if they should participate in consultation either directly or through a relevant industry body.  

Submissions can be made via DCCEEW's consultation hub until 30 March 2024.

Want to know more?

"Government set to reform national environmental laws but there are some challenges for industry" (12 December 2022)
Discusses the Federal Government's Nature Positive Plan.

"No new Federal cultural heritage legislation in 2023 – but change is coming" (25 July 2023)
Discusses Federal cultural heritage law reform.