Minister for the Environment

18th November 2013

Hon Greg Hunt MP

Minister for the Environment

PO Box 6022
Parliament House
Canberra ACT 2600

Dear Minister,

Environmental law standards

As you know, the Australian Network of Environmental Defender’s Offices Inc (ANEDO) is a network of community legal centres across Australia that specialise in public interest environmental law. We have a long history of engaging constructively with various governments on environmental law issues. We welcome the opportunity to provide preliminary comments on maintaining federal environmental standards, as requested at your Roundtable meeting held on 16th October in Canberra.

Consistent with the State of the Environment (SoE) Committee’s 2011 SoE report, ANEDO supports a strong Commonwealth role in efficient and effective implementation of the Environment Protection and Biodiversity Conservation Act (EPBC Act) to protect Australia’s unique biodiversity and heritage.We support the establishment of best practice environmental standards in all Australian jurisdictions, and the retention of environmental approval powers by the Australian Government for matters of national environmental significance. In this context, ANEDO has engaged in the COAG reform process to date by preparing background papers on best practice environmental laws and standards,[i] making submissions on current legal standards,[ii] and meeting with members of the Government and COAG taskforce on request to provide expert input.

We note the release of various documents related to the Government’s ‘One Stop Shop’ Policy for streamlining environmental assessment and approval including: Memoranda of Understanding with NSW and Queensland, a draft revised Bilateral Assessment Agreement with Queensland, documents related to the proposed strategic assessments of the Great Barrier Reef and for environmental assessment of offshore actions by NOPSEMA. This letter does not address these documents in detail as ANEDO will be assessing these and providing detailed submissions separately.

We would like to highlight 3 key issues regarding the reform process:

Role of the Australian Government

ANEDO believes that the effective implementation of the EPBC Act by the Australian Government is the most essential element of meeting Australia’s international environmental obligations. This cannot be achieved other than by the Commonwealth government retaining direct responsibility for key functions under the EPBC Act such as decisions about when the Act is triggered and final approval decisions.The ongoing role of the Australian Government – as signatory to international environmental agreements - is fundamental to meeting its legal obligations.

The Draft Framework for the Accreditation of Environmental Approvals under the EPBC Act (July 2012) and the Statement of Environmental and Assurance Outcomes (June 2012) comprise an accurate compilation of the 106 minimum legislative standards currently required under the EPBC Act and Government practice. Accreditation of State or Territory laws that do not meet these minimum requirements will put at risk matters of national environmental significance, potentially breach our international obligations, and potentially expose the Commonwealth to legal liability.

While efficiencies may be gained by improving and better coordinating environmental assessment processes with the States and Territories, the Australian Government must retain final approval powers and call in powers.The efficiencies to be gained from better coordination and integration of assessment processes must not be such that they undermine the necessity for strong Commonwealth involvement in the administration of the Act.

Furthermore, the Australian Government must retain robust compliance, enforcement and assurance mechanisms in legislation. There has been no clear indication of how monitoring, auditing, reporting, compliance and enforcement will work under the ‘One Stop Shop’ model. It is unclear what baselines or indicators will be used to ensure that bilateral agreements will maintain environment protection standards; and what independent body with the necessary environmental expertise will be appointed to assess this.ANEDO believes it would not be possible for the Commonwealth to vacate this sphere by delegating powers to States and Territories, without risking matters of national environmental significance, potentially breaching our international obligations, and potentially exposing the Commonwealth to legal liability.

State and Territory standards

As part of our analysis of existing environmental law standards, we were commissioned by the Places You Love Alliance of environmental NGOs to undertake an audit of threatened species and planning laws in all Australian jurisdictions. We attach a copy of An Assessment of the Adequacy of Threatened Species and Planning Laws in all Jurisdictions of Australia, December 2012. The key finding of this report is that no state or territory biodiversity or planning laws currently meet the suite of federal environmental standards necessary to effectively and efficiently protect the environment.

Since completing this audit, many States and Territories have in fact lowered environmental legislative standards relevant to the protection of matters of national environmental significance. For example, Queensland has relaxed requirements to permit clearing of previously protected regrowth and riparian native vegetation. NSW and Victoria are also in the processes of winding back native vegetation protection laws. Planning laws in Queensland and NSW are also being “streamlined.” The proposed planning laws in NSW, for example, fail the standards test at the outset by removing a reference to the principles of ‘ecologically sustainable development’ in the objects of the new regime. This is clearly a lesser standard than that required under the EPBC Act. Even laws that relate to some of Australia’s most iconic areas of national significance - national parks - are being amended to allow hunting, grazing and increased commercial uses. Such lowering of State standards is increasing the need for Commonwealth protection of the environment.

Timeframes

Hasty accreditation of State and Territory laws will not be possible where the relevant regulatory requirements are at odds with standards under the EPBC Act. Furthermore, it is not possible for the Commonwealth to accredit laws that are in a state of flux and transition. For example, the NSW planning legislation is currently being debated in parliament, with many environmental standards to be determined by future instruments that will not be finalised by 18th September 2014, when an approval bilateral agreement is intended to be in place. In order to achieve your aim of ‘maintaining high environmental standards’, any reform process must be predicated on States and Territories having the necessary comprehensive suite of legislated process and outcomes standards in place and operative before accreditation can occur. For the assurance that environmental protection will be maintained to be credible, the process needs to be focussed on the achievement of the necessary standards, not the meeting of an arbitrary deadline.

ANEDO will be engaging in the various processes underway for the reform of environmental laws and we are happy to provide our unique expert input in all jurisdictions. For further information or resources, please contact or (02) 9262 6989.

Yours sincerely,

Australian Network of Environmental Defender’s Offices

Rachel Walmsley

Policy & Law Reform Director

EDO NSW

Attachment:An Assessment of the Adequacy of Threatened Species and Planning Laws in all Jurisdictions of Australia, December 2012.

[i] See ANEDO “COAG environmental reform agenda: ANEDO Response – In Defence of Environmental laws” available at:

[ii] See ANEDO “Submission on the Draft Framework for the Accreditation of Environmental Approvals under the EPBC Act”, 23rd November 2012, available at: