Last Thursday 28 January, the Morrison Government released Professor Graeme Samuel‘s review of Australia’s Environment Laws, which calls for significant reform of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC).

Professor Samuel made a number of recommendations, including developing new, legally enforceable, National Environment Standards and an independent compliance and enforcement regulator.

Member for Griffith and Shadow Minister for Environment and Water, Terri Butler MP, said Labor welcomed the final report’s release but the Morrison Government had sat on it for months.

The Morrison Government received the final report in October 2020.

Ms Butler said Labor’s shadow cabinet and caucus would carefully consider the report’s recommendations and any government response. She said Labor has called on the Morrison Government to:

  • “Introduce strong national environmental standards; and
  • Establish a genuinely independent ‘cop on the beat’ for Australia’s environment;
  • Fix the explosion in unnecessary 510 per cent job and investment delays caused by their massive funding cuts.”

While also welcoming the report, environment groups have been critical of the Morrison Government’s response to Professor Samuel’s interim recommendations, and fear the Government will cherry-pick from the final recommendations rather than implementing them in full.

It’s Now or Never

Australia’s peak marine conservation organisation, the Australian Marine Conservation Society (AMCS), has described the final review of EPBC as a brutally honest assessment of the current law’s failure to protect our oceans.

“The conclusions and recommendations made by Professor Samuel read like a call to arms if we are to turn the tide for Australia’s unique and internationally significant oceans and lands,” Tooni Mahto, Campaign Manager at the AMCS said.

“The Morrison Government has a unique opportunity and an urgent responsibility to heed the warnings in the report and take the necessary actions to reform our environment law to stem the extinction and climate crises.”

“It’s now or never for our environment.”

National Environmental Standards

Terri Butler criticised the Government for rushing a Bill through the House of Representatives last September that would devolve responsibility for environmental approvals to states and territories, which are considered to have weaker environmental laws than the Commonwealth.

Labor, The Greens, and Cross Bench Senators blocked the Bill in the Senate, in part because it did not include reference to national environmental standards.

Environment groups argue that National Standards must be in place before the devolution of responsibilities to states and territories can be properly considered.

Mr Mahto of the AMCS said the foundation of the Final Report’s recommendations are a draft set of legally enforceable National Environmental Standards.

“The report also provides welcome recommendations for an assurance framework to support implementation of the standards, such as improved monitoring of compliance with the Act, greater deterrents for compliance breaches and improved independence in decision making.”

“Professor Samuel puts front and centre the need for the right strong and independent frameworks and standards to be in place to ensure decision making is about environmental protection and does not facilitate a rushing through of harmful developments.”

Wilderness Society spokesperson, Suzanne Milthorpe said:

“The immediate and urgent legislative reforms put forward by Samuel are not at all what the Government has currently before the Senate. It is crystal clear that any devolution of Commonwealth environment responsibilities without adequate and effective national standards and independent assurance frameworks in place is not in line with Samuel’s recommendation.”

Rachel Walmsley, Head of Policy & Law Reform at the Environmental Defenders Office (EDO) agreed. She said the Government has heard the message that any devolution of responsibilities to the States is unacceptable without having National Standards in place.

“The final report made it clear that standards are the centrepiece and have to be in place before any devolution.”

“The problem is that the Government hasn’t really made a formal response to the recommendations. There’s no commitment so far on what standards the Government will put forward: whether they will adopt Graham Samuel’s Interim Standards proposed in the report, or whether their starting point will just be the requirements in the EPBC Act at the moment.”

“That’s a pretty high risk, because the Graham Samuel report has shown that the EPBC Act has failed.”

“If the Government’s idea of placating the crossbench is proposing standards that are essentially current requirements, then that’s not going to work. That’s not going to reverse the trajectories of environmental decline.”

Climate Trigger

While the report does not recommend climate action be addressed in the EPBC Act, it does recommend the full emissions profile of proposed developments be transparent and consider factors like the effectiveness of emissions mitigation measures on matters protected under the Act, such as the Great Barrier Reef.

Rachel Walmsley of the EDO said it’s disappointing that Professor Samuel did not support a greenhouse trigger in his recommendations. But she said he is proposing two things: the first is a requirement that projects must disclose the full emissions of a development; the other is a requirement for more detail about climate adaptation.

Ms Walmsley said that while this does not have quite the same effect as a climate trigger, it would be a step forward if proponents are required to consider the effectiveness of their avoidance and mitigation measures under a range of climate change scenarios.

“There are multiple references in the final report to climate change, cumulative impacts, and resilience, so I do think there’s potentially some scope to address cumulative impacts and resilience in some of the regional planning mechanisms, and through the other mechanisms and standards.”

Government Response

The Federal Environment Minister, the Hon Sussan Ley MP said last Thursday that the Commonwealth is committed to national standards.

“As outlined in our response to Professor Samuel’s interim report, the Commonwealth is committed to national standards, to a single touch approval process, rigorous assurance monitoring for bilateral agreements and the modernisation of indigenous cultural heritage protection,” Ms Ley said.

However, speaking on ABC Radio on Friday, her Labor Shadow, Terri Butler, expressed doubts about the Government’s will to deliver.

“I think people are a bit sceptical about whether this Government will actually even deliver on environmental protection. I mean, this is a report that shows very clearly that the Australian natural environment is being failed when it comes to protection, and so is Australian industry.”

“I don’t trust them. I don’t think the Australian people trust them. But having said that, if they come up with something serious that reflects this important review process – I’ll be really looking forward to seeing that, and considering it properly.”

Professor Samuel’s report:

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