The Liberals have botched environment law reform

By Terri Butler MP

22 June 2021

It's a delight to follow the member for Goldstein in speaking on the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021. He is a man so oblivious that in the week in which the National Party rolled their leader over climate change, with the Deputy Prime Minister of the nation changing as a consequence, and when we're in a global pandemic, the member for Goldstein thought he'd accuse us of self-indulgence and focusing on ourselves. It's quite a breathtaking assertion from the member. Talk about leading with your chin, Mr Speaker, when someone on that side of the House says the words 'self-indulgent' or 'focusing on yourself' during this extraordinary week. It's quite surprising in some ways, but in other ways it's completely par for the course for the member for Goldstein. Of course, we've also heard some of his really strange attempts to try to set up a dichotomy between Labor and the Liberals and Nationals in respect of which of us cares about conservation and commerce and which of us is self-indulgent. I think any fair observer would notice that, throughout the discussion of the 10-yearly review of the environment protection and biodiversity conservation legislation, it is Labor that has stood up for jobs and the environment, and it is the government that has been waging ideological warfare. And we see that again today with this proposed legislation.

To recap the circumstances: of course, we've had the second 10-yearly review of the EPBC Act. The conditions for review were very favourable. The government has majority government, and the government has a Labor opposition that has said, 'We will not rule anything out, we will not cherrypick, we will be open to considering anything sensible and constructive that the government wants to put forward to us.' Those are the conditions in which this 10-yearly review has been conducted.

The government received an interim report from the reviewer, Professor Graeme Samuel, an eminent Australian, who has written two very solid reports: as I said, an interim report and now a final report for this review. After the interim report was handed down to the government, they said, 'Thanks very much', then they took the recommendations of that interim report and moved them to one side. They then went over to the shelf, dusted off some Abbott-era failed legislation and lobbed that into the parliament instead. And what happened after the final review report came out? Well, they've done the same thing. They've now created this bill, the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill, and in support of this bill they have promulgated in a bit of a leak to the press—kind of, not really—some draft interim national environment standards, and those draft interim national environmental standards are materially the same as the draft environment standards that were drafted in support of that Abbott 2014 one-stop-shop bill. Once again the government have gone back to their old cupboard full of ideological warfare items and dusted off some 2014 proposals. In doing so, they've completely junked the hours of work and the millions of dollars that went into the Samuel review. They've completely disregarded that review's proposal for a range of interconnected reforms to be the first tranche of reforms.

I therefore move:


"whilst not declining to give the bill a second reading, the House notes the Commonwealth government's abject failure to deliver durable reform to protect the environment and create jobs".

The reason why it's important to move that amendment is that the government has before it some serious challenges. We have a government that needs to create jobs and we've got a government that needs to do more to protect the environment. The Samuel review has given them a clarion warning on the latter. Professor Samuel, as I said, an eminent Australian, whose background is in regulation through the ACCC and in business, has said to this government:

Australia's natural environment and iconic places are in an overall state of decline and are under increasing threat.

…   …   …

The pressures on the environment are significant—including land-use change, habitat loss and degradation, and feral animal and invasive plant species. The impact of climate change on the environment … will exacerbate pressures, contributing to further decline.

… in its current state, the environment is not sufficiently resilient to withstand these threats. The current environmental trajectory is unsustainable.

Those are the words from Professor Samuel through his review of the EPBC Act. It is very clear from his language that the government need to take immediate action for environmental protection, yet what they have served up to this parliament and, by extension, to the Australian people is a reform proposal that does nothing to improve environmental protections. On their own account, the standards they have drafted do nothing more than replicate the obligations under the existing EPBC Act—that is the government's own account of these standards. They say there is not an inch, not a millimetre, of additional environmental protection in these standards compared with the EPBC Act. That's what they're asking us to support.

The imperative for environmental protection ought to be very clear to this government and to everyone watching on. That is a matter that should be crystal clear to the environment minister, to the Prime Minister and to everyone in this parliament—and to everyone in this country—yet their response is: 'Look, just trust us. We'll put in place these standards that just reflect the current settings. Then what we'll do is in two years time we'll provide some standards that have improved environmental protections.' I don't think that's good enough, and I don't think the Australian people think that's good enough either.

The government is trying to pretend that what they're doing is consistent with the Samuel review and that somehow we are arguing for an all-or-nothing approach. The minister has made this claim. That's not the case. The Samuel review recommends staged reform. Labor is happy to consider a first stage of reform that is consistent with that review, but this ain't it; this is not it. We've said to the government that we are prepared to consider anything serious that they want to put forward that is consistent with the Samuel review. We've made very clear in our public comments and in speeches in this place—we have made it crystal clear—that we want to see strong national environmental standards. We want to see a tough cop on the beat for the environment. We've also made it clear we want to see them take genuine action to remedy their own disasters in environmental decision-making, including the delays and the poor decision-making on approvals for projects. We couldn't have been clearer, yet what they've given us is quite the contrary. They've given us no strong national environmental standards, only the Abbott versions from 2014. They've given us no tough cop on the beat.

What they've done is provide an assurance commissioner proposal in this bill. It's very clear to us that Australians would like to see a set of institutional arrangements that can restore public trust in the EPBC Act and the regulatory arrangements. But they've come up with this proposed assurance commissioner, which is an audit function. This just seems to provide a different entity to undertake that audit work. Now, the design of this new entity has been criticised by third parties as lacking sufficient independence and the statutory powers necessary to give effect to its role. I think Australians would like to see this government do better in relation to the audit and monitoring power to ensure genuine independence and also to make it clear what powers the entity will have to undertake that audit and monitoring function.

The Samuel report also recommended, as part of the first tranche of reforms, beefed up compliance arrangements. There is nothing of that nature in this bill or in the other bill. There's no commitment to that in this government's so-called first stage of reforms. It's just not there. It's just missing. I think Australians want to be able to have confidence that conditions are being met and that issues like, for example, making sure that native grasslands aren't being poisoned are being monitored correctly and that we make sure that we do have a tough cop on the beat for the environment. But this government is not interested in that. They've done nothing on these points.

It is incredibly important too that Australians have confidence that there will not be unnecessary delays in approvals of projects. Every delay that's unnecessary for a project is a delay for jobs, and it's a delay for investment. Now, this is something that Labor has consistently put at the heart of our discussions of this review. We have been consistently critical of this government's failures when it comes to making decisions on time, because their failures are causing delay. Their failures are causing delays in jobs. Their failures are causing delays for investment. Their failures are causing delays for projects. You don't just need to take my word for it; the Australian National Audit Office's report on decision-making under the EPBC Act laid bare this government's failures in relation to project approvals. I've seen a bit of material from this government complaining that somehow Labor doesn't support mining approvals when in fact it's their own government that is causing problems for mining approvals and for other project approvals. It is the Morrison government that is responsible for the fact that their own decision-making is full of delay and full of error. The Audit Office report, when it was handed down, found that in a single year 95 per cent, almost every single key decision under the EPBC Act—that's controlled decisions, assessment decisions and approval decisions—were made late, outside the statutory time frame. That's what this government does for project approvals and for other processes.

The same report found that 79 per cent of the approval decisions it considered are either noncompliant or affected by error. It's a report that found that between the beginning of this government's time in office—I know it was eight long years ago; they're a tired and old government—and the time of the report the delay for approval decisions had increased by 510 per cent. It had gone from 19 days late to 116 days late. That's the government's record. That's the record of this government when it comes to approval decisions. This government came into office and they thought: 'You know what we should do? We should cut the environment department funding by 40 per cent. That won't have any negative downsides, will it?' A 40 per cent cut to funding! What's the consequence of that? Jobs are delayed. Investment is delayed. There are project delays. When this government asks rhetorically 'Who's on the side of the resources sector?' I'll tell you who it's not. It's not the Morrison government, because if it was the Morrison government they would actually be taking real action to make sure that these decisions can be made on time, not cutting 40 per cent of the funding from the environment department and then saying: 'You know what? You know what the problems is? It's not our cuts to the funding, it's not our own mismanagement, it's not the errors that we make, it's not the delays to approvals and other key decisions. It's: we need to do something with law reform.'

Well, it's not good enough for the government to cause these massive problems and then try to point the finger at Labor, in the west or anywhere else. It's not good enough, and people won't cop it. People will see right through it, because, as we have said in the west and everywhere else that if you have got something serious to put to us we will consider it, but it's got to be serious. Strong national environmental standards, a tough cop on the beat and a fix to all of the problems that your government has caused through its own mismanagement—that's what we want to see.

On that point, this government has been trying to take Western Australians for mugs. They really have. It's really disgraceful behaviour. But I think Western Australians and all Australians will see it for what it really is, and that is just a continued attempt to create a political opportunity. It's always a political management question for this government; it's never about the merit. They're just trying to create a political opportunity for themselves. But I just want to say to them: after all of this time, throughout this entire review process, the position still remains—we haven't ruled anything out. We are open to considering anything serious that the government wants to put forward to us, but you've got to come to us with a package that can enjoy broad support.

All of the stakeholders that I've spoken to, no matter what their interest, whether they are environmental non-government organisations, whether they're resources sector peak bodies, whether they're business industry bodies. regulators or lawyers, they've all had an open mind and a willingness to negotiate and to compromise. And the reason that they have all had that is because they want reforms to be durable. They want them to get through on a bipartisan basis so that people can have certainty over several coming years and decades. Durability takes compromise and negotiations. Stakeholders recognise it. Labor recognises it. But what is the government doing? They're saying: 'No, it's our way or the highway. Cop it sweet.' Well, come back to the table, keep talking to us. We're happy to talk, but come to us with something we can meaningfully put back to all of the people who have an interest in this.

I might just add that the government's proposals under this bill and their other bill are to push onto other jurisdictions the obligation for doing some of the work under the EPBC Act, but what they haven't done is made any commitment of any additional resourcing to those jurisdictions. This should be ringing alarm bells for people because, if there's no commitment to resourcing and if state bureaucracies are going to take on additional workload without any additional resourcing, then it's very possible that will lead to greater delay, not less delay, in decision-making. It's entirely likely that that would lead to more problems for jobs and investment, not fewer. I noticed that, in the media statement put out by a number of resources bodies just this week, they made the same point. Those resources peak bodies said to this government: 'You've got to come up with a funding commitment for those state bureaucracies. You've actually got to come up with some assurance that not only will they be able to get accredited to make approval decisions under the EPBC Act but also they'll get some additional funding in order to be able to do so.' I think the government would be aware, because they talk to the same stakeholders that I do, that stakeholders are incredibly frustrated by the government's reluctance to afford the resourcing and support that is needed to make sure that these decisions can be made on time.

There will always be valid reasons why some decisions take longer than others. But, where the delay is caused by poor management, underfunding or workloads being too high, those are not legitimate reasons for these massive projects that generate jobs, investment and economic benefit to be delayed. Government mismanagement—and this government's mismanagement—is not a valid reason for Australians to miss out. The government would be aware of the cost of their delays to the economy and to the Australian people. With the Productivity Commission having estimated in 2013 that a one-year delay to a major offshore LNG project could cost between $500 million and $2 billion—and that was cited in the Senate dissenting report that Labor senators provided in respect of this bill—the government would be aware that their failures and their delays have real costs to the economy and to jobs.

My state, Western Australia, and all states in this nation want to see major projects going ahead. We want to see jobs. We want to see investment. These things are incredibly important. But what you don't do is create the problem of delay and then try to blame something else. You don't cut the funding by 40 per cent and then say, 'The problem is that we haven't had enough law reform.' You don't say, 'We're going to get the states to do all this work and not provide them with any comfort about the additional resourcing that they will need to use in order to do that.' Yet that's what this government is asking. They can take out all the attack ads they like in the west and they can try to point the finger at us, but it's just a desperate attempt to cover up their own gold-standard incompetence when it comes to jobs, when it comes to investment and when it comes to environmental protection. I don't often agree with the member for Goldstein, but I will agree with him on this. There's not some contest between environmental protection and jobs. You've got to be able to deliver both. You've got to find the win-win.

The stakeholders I talk to across the board—environmental, legal, regulatory, resources, business, industry, farming, property—all know that there can be a win-win. They all have that optimism that we can use the talents that we have as a nation to find a way through the problems that we face, to make our processes work better, to make sure there's better compliance, to make sure decisions are made on time, to make sure jobs aren't delayed, to make sure investment isn't delayed and to protect Australia's iconic native species and natural places. We can actually do that, but it takes a lot more than someone standing up and saying: 'Well, here's what we did in 2014. Take it or leave it.' And that is what the government is saying to us, to the parliament, and to all Australians right now. That's what you're saying to us: 'Take it or leave it. We are not prepared to propose any increase in environmental protection in those standards. You just have to take our word for it that you will get those increased environmental protections, those stronger standards, in two years time.' They're asking us to just trust them. That's what this government is doing. They're saying to the Australian people 'trust us'. I don't think the Australian people are going to trust them.

The bill that we're considering now, the bill that we've been working through, is just not enough. It's not good enough. The package is comprised of this bill, some draft standards that are rehash of 2014 and a reheated 2014 bill. How can the government seriously be asking us to support those things when we have outlined very clearly what it is. It's principles based. It's not prescriptive. We're not saying we rise or fall on Samuel to the letter. We just want something more meaningful, more substantive and more useful that we can take back to the Australian people, and that's in everyone's interest.

I think we would like a settlement. I'm not talking about buying and selling a used car here; I'm talking about a great settlement of environmental and project approval issues that can find that win-win, that can be durable, that can take us through the next years and decades, so we don't have to have another fight about what the environment laws are in a year's time or two years time or three years time. Let's find a way to set up that framework so that we continue to adapt. But at least business resources firms, farmers, property developers, environmentalists, regulator, lawyers and Australian people can have some certainty about what that framework is going to be. If we want that durability the best path for that is bipartisanship. The best path for that is having the parties of government being able to reach a genuine agreement, informed by stakeholder views from across the board, about what the settings should be and how they should work moving forward. I know that sounds difficult, but if our job isn't to create durable policy settings that help make Australia better then what are we all doing here? That's what we're doing here.

I don't need to tell you about the environmental problems in this country. You all know them. We're a world leader in mammal extinctions. We're in a situation now where we're in a biodiversity crisis. We're in a situation now where Australians are worried after the bushfire crisis, after what they're hearing about climate change, after what they're hearing about the extinctions. They're worried about native species. They're worried about whether their grandkids are going to be able to see live koalas. They're worried about what's going to happen with all of the native species that're under threat. They're worried about the fact that this government seems to have just given up on getting recovery plans done at all, let alone on time, that they don't seem to be able to get the key threatening processes documents together to abate those threats, that they seem to be comprehensively unable to respond to the gauntlet that's been thrown down to them by Graeme Samuel through this process about the state of decline that our Australian environment is in. Australians are worried about that.

Australians are also worried about government mismanagement and waste. They're worried about the fact that the department has had these massive cuts. They're concerned about the delays. They're concerned about the problems in environmental decision-making, the errors, the non-compliance. They're concerned about some of the issues that've been raised about failure to manage conflicts of interest—and if anyone is interested in that just go back and have a look at the Audit Office report. And today of all days they're worried about whether this government is doing enough to protect our world heritage properties, our natural wonders of the world that we're so fortunate to have, and our cultural wonders for that matter as well.

I want to encourage the government: stop pointing the finger at Labor, stop complaining that we don't want to cop your 2014 reheat. You've made it really clear. Come back to the table. We've been clear but not prescriptive. We are open to discussion. We are ruling nothing out. We want to you come to us with a first tranche of reforms that can be meaningfully considered. It's not a blank cheque. I'm not buying a pig and a poke. But if this government can come to us with some serious reforms, as a package of a first stage of reforms, if you can do that, then we will absolutely continue to keep talking to you, to properly consider them, to work with stakeholders from all backgrounds, from all perspectives, to find a durable set of improvements to the nation's environment laws. We would also support the government to fix some of the really serious problems in EPBC decision-making that are leading to delays, mismanagement and problems in the community when it comes to major projects. We will absolutely do all of that. Just come to us. My door's open. You all have my number. Let's see if we can't keep working on this and come up with some proposals that actually do meet some of the challenges that Professor Samuel and many, many others have laid down for us over a number of years.

If I could just be indulged, I want to thank all of the stakeholders. Every single stakeholder in this—from resources, industry, business, environmental organisations, lawyers, regulators—has engaged really constructively with this process. They have engaged really constructively with me. We haven't always agreed, but there has always been a spirit of willingness to talk, willingness to try to meet each other, and willingness to try to accommodate the different views and perspectives and imperatives that everyone faces. This review process has been a demonstration of what's great about Australian pragmatism, and good faith and open-mindedness. It has actually brought out the best in a number of those organisations and stakeholders. I think it should be reassuring for the government that, if they keep working with all stakeholders on this, there is a prospect—sure, you won't get anything that everyone is 100 per cent happy with, but at least, if we can keep working with all stakeholders on this and find something people can live with, there could be some win-win outcomes. If we don't see environment as oppositional to jobs and we don't see law reform as a zero-sum game and if we see that there are opportunities to improve environmental protections and reduce delays for projects that give rise to Australian jobs and investment in the Australian people—if we can all just bear that in mind—then we can actually find a package of first-stage reforms that do provide those win-win outcomes that actually support all of those different objectives that environmental law should support.

I commend my second reading amendment to the House. I ask the House to oppose this bill. In fact, I ask the government to withdraw this bill. As Labor senators requested in their dissenting report for the inquiry into this bill, Labor asks:

… that the government withdraw this bill and instead propose, for the parliament's consideration, an interconnected suite of reforms that:

provide for stronger environmental protections to address the overall state of decline and the state of increasing threat;

establish a tough cop on the beat to help restore trust; and

support efficient and effective decision-making under the EPBC Act in the interests of avoiding unnecessary delays to jobs and investment.