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The EPBC Act reform: the framework for a nature positive Australia

Written by Nicolina Holmes

 

Introduction

 

The State of the Environment 2021 made it very clear that Australia’s natural environment is poor and deteriorating. Immediate action is required to stop pressures such as climate change, invasive species, industry and population, having further detrimental impact on native species, the ecosystem and the wellbeing of Australians.

 

 

The Australian Government responded by implementing actions and initiatives targeted at addressing the environmental decline and working towards a nature positive Australia.

 

 

At the helm of this nature positive movement is the Environment Protection and Biodiversity Conservation Act (the EPBC Act) reform with new environmental laws shaping the way the nation protects, repairs and manages Australia’s natural environment.

 

 

 

 

 

 

“Nature positive”: The global shift in biodiversity conservation

 

Given different definitions dependent on the literature, “nature positive” essentially means to stop and reverse biodiversity decline. A global movement, the term “nature positive” represents the world’s collective ambition to reduce biodiversity threats and restore and enhance ecosystems.

 

 

The Kunming-Montreal Global Biodiversity Framework (GBF), which was adopted at the 2022 UN Biodiversity Conference, aims to achieve this nature positive ambition by 2050. The GBF includes four global goals and 23 global targets, agreed upon by participating countries, driving the direction for global biodiversity action.

 

 

Australia, one of those participating countries, is demonstrating its commitment to biodiversity conservation and restoration through its Nature Positive Agenda. The Nature Positive Agenda includes a plethora of actions and initiatives, all with the main objective to protect, restore and manage nature. One of those actions is the transformation of Australia’s environmental laws, specifically the EPBC Act. (Some other actions are highlighted later in the article).

 

 

 

 

 

 

Background on the EPBC Act and need for reform

 

The EPBC Act is the centre piece of Australia’s environmental laws, regulating and protecting matters of national environmental significance . These matters are parts of Australia’s unique landscape that are significant, and that Australia has made international commitments to preserve.

 

The matters of national environmental significance

  • nationally threatened species and ecological communities
  • listed migratory species
  • wetlands of international importance (Ramsar wetlands)
  • World Heritage Properties
  • National Heritage places
  • Commonwealth marine areas
  • The Great Barrier Reef Marine Park
  • protection of the environment from nuclear actions
  • protection of water resources from coal seam gas developments and large coal mining development (also known as the water trigger).

 

 

Reformation for better protection

Professor Graeme Samuel’s 2019 review, highlighted that the existing EPBC Act was archaic, cumbersome on businesses and inadequate to withstand current, emerging and future threats to the Australian environment.

 

 

Samuel’s review, and findings from the State of the Environment 2021, prompted the Australian Government to enact a major reform of the EPBC Act, and on the 8th of December 2022 , it released the Nature Positive Plan: better for the environment, better for business.

 

 

Enacted over three stages (each explained below), the plan aims to strengthen the country’s environmental laws to better protect and repair those matters of national environmental significance.

 

 

 

 

 

 

The three stages of the EPBC Act reform

 

Stage one

In December 2023, legislation was passed introducing the Nature Repair Market and the expansion of the water trigger in the EPBC Act.
 

Nature Repair Market

The Nature Repair Act 2023 was passed in Parliament on the 15th of December 2023 and introduces the world’s first biodiversity market. A government initiative, the Nature Repair Market is a national, voluntary scheme aimed to incentivise actions that foster nature conservation and restoration. Individuals and organisations can undertake nature repair projects on land and water to generate biodiversity certificates. These certificates can then be sold to generate income.

 

 

The Nature Repair Act 2023 legislates the functioning of the market and participants’ requirements. Participants can include First Nations peoples and organisations, conservation groups and farmers.

 

 

The Nature Repair Market is anticipated to be open in 2025.

 

 

Expanding the water trigger

As previously mentioned, the EPBC Act regulates and protects the country’s water resources from impacts relating to coal seam gas developments or large coal mining developments (also referred to as the water trigger). The Act was amended, expanding the water trigger to include impacts from all forms of unconventional gas.

 

 

 

 

 

 

Stage two

In May this year (2024), legislation was introduced to Parliament to establish the Environment Protection Australia (EPA) and Head of Environment Information Australia (EIA), two key components of Australia’s nature positive movement. The implementation of these entities aims to strengthen environmental protection with an emphasis on compliance, accountability and transparency of information.

 

 

There is no anticipated date for when these environmental laws will be passed. Their introduction into Parliament has come up against some strong debate.

 

 

Environment Protection Australia

The Nature Positive (Environment Protection Australia) Bill 2024 was introduced to establish Environment Protection Australia and its regulatory functions under Australia’s environmental laws.

 

 

The EPA, Australia’s first independent national environmental protection agency, will be responsible for administering and enforcing regulations under the EPBC Act and other Acts relating to recycling, hazardous waste, wildlife trafficking, sea dumping, ozone protection, underwater cultural heritage and air quality.

 

 

This includes functions such as:

  • making environmental assessments, decisions and post-approvals,
  • issuing permits and licenses,
  • educating industry, business and the community on the environmental protection laws,
  • issuing ‘stop work’ orders to prevent serious environmental damage,
  • delivering harsher penalties for serious breaches,
  • auditing organisations’ compliance with EPBC environmental approval conditions.

 

 

The EPA will run as an independent body with its own CEO and budget. This was a deliberate decision by the Government with the intention to restore accountability and trust from the public in the EPBC Act delivering nature positive outcomes.

 

 

The EPA will be effective after the legislation has passed.
 

 

Environment Information Australia

The Nature Positive (Environment Information Australia) Bill 2024 was introduced to establish the Head position for Environment Information Australia.

 

 

The EIA aims to improve access to environmental information and data to allow for more informed and faster nature positive decisions. The role of the Head is to ensure that high-quality environmental data and information is delivered to the Minister for the Environment, the CEO of the EPA and the public.

 

 

Other responsibilities of the Head of the EIA include, but not limited to:

  • reporting on the State of the Environment every two years, and including science and Indigenous knowledge;
  • tracking and analysing environmental trends; and
  • providing progress reports on the national environmental goals and the trajectory to becoming nature positive.

 

 

 

 

 

 

Stage three

Consultation has been ongoing since 2023 on legislating the other Government commitments outlined in the Nature Positive Plan, including but not limited to, assessment and approvals system, restoration contribution and climate change related reforms.

 

 

Stage three will complete the reform with delivery of a complete package of new environmental laws, including National Environmental Standards.
 

 

National Environment Standards

The National Environmental Standards will play a crucial role in driving a nature positive Australia by setting clear priorities, expectations and outcomes for regulatory activities under the new EPBC Act.

 

 

Six standards are currently in development:

  1. Standard for Matters of National Environmental Significance: setting protections for nationally important matters
  2. Standard for Restoration Actions and Restoration Contributions: setting measures for compensation where significant impacts on protected matters are allowed
  3. Standard for First Nations Engagement and Participation in Decision-making: enabling early engagement with First Nations people in project design and regulatory decisions
  4. Standard for Community Engagement and Consultation: enabling community contribution to decision-making.
  5. Standard for Regional Planning: setting requirements for new regional plans
  6. Standard for Data and Information: setting requirements for the information used in decision-making.

 

 

 

 

 

 

Other initiatives driving Australia’s nature positive movement

 

From a national level

The EPBC Act reform is one part of the nature positive movement in Australia. Here are some other planned and current biodiversity efforts from the Australian Government:

 

 

From a state level

State governments have also implemented, or are implementing, initiatives to better protect and conserve their natural environments and ecosystems and contribute to the national and international nature positive movement.

 

 

Some of these are:

  • NSW’s plan for nature, is a framework for improving the protection and conservation of biodiversity in NSW. It was prompted in response to a review of NSW’s Biodiversity Conversation Act 2016 and native vegetation provisions of the Local Land Services Act 2013.
  • Queensland’s Biodiversity Conservation Strategy aims to protect, restore and recover the state’s biodiversity, support it adapting to changing environments and connect it to the people. Its vision is to ensure that nature is actively supported to thrive.
  • Tasmanian Positive is a collaborative project incorporating businesses, community and the Tasmanian people to enhance the state’s positive progress towards sustainability.
  • Biodiversity 2037 is the Victorian Government’s long-term vision for protecting the state’s natural environment. The 20-year plan aims for Victoria’s biodiversity to be healthy, valued and actively cared for by 2037.

 

 

 

 

 

 

Follow the nature positive reform with Environment Essentials

 

Summaries of the Nature Repair Act 2023 are currently available in our environmental online directory, EnviroLaw. We anticipate other summaries in EnviroLaw, specifically those related to the EPBC Act, will be affected once the reform is complete. If you’re subscribed to EnviroLaw, you will be notified of any updated summaries through our updates email service.

 

 

Our HSE Bulletin is also a great source for staying abreast of the reform as each element rolls out, as well as any other initiatives planned or implemented that works towards a nature positive Australia.

 

 

If you don’t have an Environment Essentials subscription but want to stay in touch with the progress of the new environmental laws, then sign up for a free trial or contact us on (03) 9095 6533.

 

 

 

 

References

These are additional resources used for this article: