Political integrity experts have raised concerns about Labor’s proposed new nature laws, including a contentious new “national interest” exemption, as pressure mounts on the Albanese government to rethink major parts of the reform.
As debate on legislation to overhaul the Environment Protection and Biodiversity Conservation (EPBC) Act resumes in the lower house on Tuesday, the Centre for Public Integrity has identified several “integrity risks” that threaten to undermine attempts to fix the broken system.
The thinktank has joined a chorus of critics – including environment groups, the former Treasury secretary Ken Henry and Labor MP Ed Husic – in raising alarm about a new exemption that would allow the minister to approve a project in breach of new nature laws if it was in the “national interest”.
While the environment minister, Murray Watt, has insisted the power was designed for projects linked to defence, security or national emergencies, he hasn’t been able to rule out the possibility it could be used for other applications – including fossil fuel developments – because of the discretionary nature of the exemption.
“Despite the claims to a limited application, the centre holds grave concerns about the scope, transparency, and accountability of the exercise of the discretion,” the thinktank wrote in an analysis of the bill published on Tuesday.
The thinktank was also concerned about the apparent lack of independence of the government’s proposed independent environment protection agency.
Under Labor’s model, the regulator would exercise some functions at arms-length of government, including the policing of nature laws, but the minister would keep the power to approve projects.
The retention of ministerial decision making power was a key demand of the Coalition and industry groups, but has been criticised by environmentalists.
The centre’s report said it was “highly unusual” for an independent regulator to cede such “significant powers” to a minister.
“Public confidence and trust in environmental decision making would be better served if responsibility lay with an independent body, free from political influence and less susceptible to vested interests,” the report said.
The centre’s head of research, Gabrielle Appleby, said the government’s bill was flawed.
“Environmental decision making is especially prone to capture by vested interests – that’s why integrity safeguards must be strong,” she said.
“Yet these bills leave serious gaps: the new regulator lacks independence and appropriate powers, and the minister retains sweeping powers to sidestep environmental protections. The government has the solutions in front of it – it just needs the will to close these loopholes and build a system Australians can trust.”
The thinktank criticised the government for developing the legislation largely behind “closed doors” in consultation with select stakeholders.
It also raised concerns about the process for creating new national environment standards, which were the main recommendation of the Samuel review that inspired the reforms.
While the bill establishes a power for the minister to make, vary, or revoke new green rules, the standards themselves aren’t included in the legislation.
The thinktank said the standards should have been detailed in the legislation and subject to parliamentary approval. The minister is planning to consult on the design of the standards before their introduction, starting with those applying to matters of national environmental significance and offsets.
Labor’s grassroots environment action group is currently lobbying the government to make two amendments to the bill, which it ultimately wants passed after years of internal campaigning to fix the EPBC Act.
The first would remove or limit the “national interest” carveout by giving parliament the power to disallow the decision through a majority vote in either house.
The second would abolish a “continuous use” exemption that allows historically legal agricultural land clearing, particularly in Queensland, to continue without the need for federal approval or oversight.
This exemption is also used by state governments to justify shark netting programs that pose a threat to endangered whales.
The national secretary of Labor Environment Action Network, Janaline Oh, said there was a strong case for national interest exemption that could be used in national emergencies, but there was a significant risk that a minister could abuse that power and the power should be limited.
“In the case where a project is of such overriding national interest that it can be allowed to have even unacceptable impacts, the government should go through an additional process of parliamentary scrutiny,” she said.
