Will Labor’s environment laws actually address Australia’s biodiversity crisis? Five reasons to be concerned | Australian politics

The Albanese government is overhauling national environment laws. It wants its changes to the Environment Protection and Biodiversity Conservation (EPBC) Act rushed through parliament before the end of the year.

But should they be?

Australia’s environment is going downhill and the changes are meant to turn that trajectory around. But lawyers, experts and advocates say the legislation is full of loopholes and problems.

Much has been said about whether the government will reach a deal with the Greens or Coalition but less about the bigger question: can these bills do the job of addressing Australia’s biodiversity crisis?

Here are five areas of concern.

1. Excessive ministerial power

Australia’s nature laws have been widely criticised for giving too much power to the minister of the day to decide whether or not developments go ahead and what conditions are applied to ensure threatened plants, animals and ecosystems are protected.

In his 2020 review of the EPBC Act, Graeme Samuel, the former chief of the competition watchdog, said the “unfettered discretion” granted to ministers to interpret the laws was a major problem that had led to poor outcomes for Australia’s environment.

Experts and campaigners say there are positive elements in the new legislation. These include requirements that developments result in a “net gain” for the environment and projects with “unacceptable impacts” be refused. Projects would be assessed against new, legally binding national environmental standards.

But they say this is undermined because the minister would still have significant power to interpret whether these requirements have been met, or if they even apply. That is, the legislation does not fix the problem of ministerial discretion.

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A legal briefing by Environmental Justice Australia and the Environmental Defenders Office warns that if the legislation is passed in its current form it would “exacerbate” the flaws of the existing EPBC Act and lead to poor outcomes for nature by “increasing” the amount of ministerial discretion, rather than constraining it.

“Unfortunately in the bills there’s a high degree of discretion retained for the minister that potentially undermines the powers the laws could have to actually protect nature,” the deputy director of policy and law reform at the EDO, Rachel Walmsley, said.

This is done through subjective and weak language. For example, rather than mandating that a development only be approved if it clearly complies with national standards, it is up to the minister to decide if they are “satisfied” a project is “not inconsistent” with them.

Whether or not the impacts of a development are unacceptable or a project delivers a net environmental gain is also left up to the minister’s satisfaction. The words “the Minister is satisfied” appear hundreds of times in the legislation.

Concerns have also been raised about a new exemption that would allow the minister to approve a project in breach of nature laws if it was in the “national interest”.

Nicola Rivers, co-chief executive of EJA, said if the government was serious about halting extinctions, the level of discretion could be fixed through simple amendments.

“You just have to remove those words ‘the Minister is satisfied’ for those key provisions that [otherwise] are not going to work the way they’re supposed to work,” she said.

2. Climate, forestry and First Nations expertise is missing

One of the major criticisms of the legislation is what is missing from it.

Under the existing laws, logging covered by a regional forest agreement between the federal and a state government is effectively exempt from federal law protecting threatened species.

The Albanese government had promised to fix this by applying new national environmental standards to the agreements. But the bills before parliament retain the industry carve-out.

Another point on which Samuel’s review was scathing was the failure by successive governments to harness the knowledge of Indigenous Australians to improve management of the environment.

The scientist-led Biodiversity Council says the new legislation does not meaningfully address this problem or embed Indigenous participation in decision-making. A promised standard on Indigenous engagement is also yet to be released.

The environment minister, Murray Watt, has so far released just one draft standard for matters of national environmental significance, such as threatened species and world heritage areas. He has promised a second draft standard on offsets before the bills are voted on. Others are “under development” but the legislation does not specify which standards are required or under what timeframe.

The failure of national environmental laws to properly consider climate change would also continue under the proposed laws. Developers would have to disclose a project’s domestic emissions. But anything substantial that would require an assessment of climate harm is “missing”, says the Australian Conservation Foundation’s Brendan Sydes.

3. A problematic framework for offsets

Environmental offsets allow developers to compensate for the damage they cause by restoring habitat for the same species or ecosystem elsewhere.

The policy has been beset with problems, including that promised offsets are sometimes never delivered or are insufficient to compensate for the environmental loss caused by a development.

You’re basically saying you can trade koalas with a land snail in Tasmania or a small plant in north Queensland

Brendan Wintle, Biodiversity Council

The legislation would establish a government “restoration contributions” fund that developers could pay into, rather than finding and securing an offset themselves.

The legislation would also overturn a ban on offsets forming part of the federal nature repair market.

Experts say these proposals would introduce the sort of problems that led to major environmental and integrity failures in offset schemes at the state level, as exposed by a Guardian Australia investigation that triggered several inquiries in New South Wales.

The NSW auditor general found a similar state-managed fund had poor oversight and failed to adequately deliver the necessary offsets meant to help nature.

The government has said its fund could deliver “landscape”-scale restoration, but experts say it would allow developers to “pay to destroy” nature with no guarantee offset obligations would be met.

The proposed restoration contribution fund would also relax “like-for-like” rules that require offsets to deliver an environmental benefit for the same species or ecosystem affected by a development.

Prof Brendan Wintle, lead councillor at the Biodiversity Council, said it was “absurd”. “You’re basically saying you can trade koalas with a land snail in Tasmania or a small plant in north Queensland.”

4. Streamlined assessment reduces consultation

The bill abolishes three methods for assessing projects under Australia’s environmental laws and replaces them with a single streamlined process that would see projects approved within 30 days.

The government wants to encourage developers to do their environmental documentation in advance to reduce assessment delays – particularly as Australia tries to speed up the rollout of renewable energy.

But Kirsty Howey, of the Environment Centre NT, said organisations on the ground were worried it reduces transparency, “guts” community consultation and has no guardrails on the size and types of projects that could be fast-tracked. Community consultation would be limited to a short period when a project is first referred to the government for a decision on whether it requires an assessment and what type.

Georgina Woods, from the Lock the Gate Alliance, said the streamlining plan could lead to “quick and dirty approval of all kinds of development, including mining and fracking, with no public consultation”.

5. Vague definition of unacceptable impacts

One of the government’s key reforms is to define “unacceptable impacts” to nature that would prevent developments that were too damaging.

Experts have welcomed this as a positive step but fear its potential effectiveness is weakened in the legislation’s current form by vague and subjective concepts such as whether or not a development could “seriously impair the viability” of a species or ecosystem or “cause serious damage to critical habitat”.

Wintle said such language lacked explicit definitions or thresholds – for example specifying how much destruction of an ecosystem or a species’ habitat would be considered unacceptable – and was again open to ministerial discretion.

He said an objective set of tests that made the definition of an unacceptable impact clear would be better for the environment and for industry.

“Business won’t be wasting time on things that shouldn’t get past the first hurdle,” he said.