Australia's Albanese government is rushing through major reforms to national environment laws, but legal experts and conservationists warn the proposed legislation contains significant flaws that could undermine efforts to address the country's escalating biodiversity crisis.
Excessive Ministerial Power Remains Unchecked
The proposed changes to the Environment Protection and Biodiversity Conservation (EPBC) Act maintain what experts describe as excessive ministerial discretion that a 2020 review identified as a fundamental problem. Despite promises of reform, the legislation retains subjective language that gives ministers broad power to interpret whether environmental standards have been met.
Graeme Samuel's comprehensive 2020 review of the EPBC Act specifically highlighted that unfettered ministerial discretion had led to poor environmental outcomes. Yet the new legislation does little to constrain this power, instead using vague phrasing like "the Minister is satisfied" hundreds of times throughout the draft laws.
Rachel Walmsley, deputy director of policy and law reform at the Environmental Defenders Office, expressed concern that the high degree of discretion retained for the minister potentially undermines the laws' power to protect nature.
Critical Gaps in Climate and Indigenous Expertise
The legislation faces criticism for what it omits as much as for what it contains. Notably, logging operations covered by regional forest agreements remain effectively exempt from federal environmental protection, despite government promises to address this issue.
The proposed laws also fail to meaningfully incorporate Indigenous knowledge and participation in environmental decision-making, a key recommendation from Samuel's review. Additionally, while developers must disclose domestic emissions, the legislation lacks substantial provisions to assess climate harm from proposed projects.
Brendan Sydes from the Australian Conservation Foundation notes that meaningful climate change consideration remains missing from the proposed framework.
Problematic Environmental Offset System
The legislation introduces a government-managed "restoration contributions" fund that allows developers to pay into a central pool rather than securing specific offsets for environmental damage. Experts warn this approach mirrors failed state-level schemes and relaxes crucial "like-for-like" offset requirements.
Professor Brendan Wintle from the Biodiversity Council described the proposed system as absurd, noting it would allow trading protection for completely different species and ecosystems. The concern is that this could enable developers to "pay to destroy" nature without guaranteeing adequate compensation.
The proposed changes would also overturn a ban on offsets forming part of the federal nature repair market, potentially creating conflicts of interest in environmental protection.
Reduced Transparency and Community Consultation
The government's plan to streamline environmental assessments has raised alarms about reduced transparency and community input. The legislation would replace three existing assessment methods with a single process aiming for 30-day approvals.
While intended to speed up renewable energy projects, Kirsty Howey from the Environment Centre NT warns the approach guts community consultation and lacks safeguards for the types of projects that could be fast-tracked.
Georgina Woods of Lock the Gate Alliance expressed concern that the changes could lead to quick and dirty approval of all kinds of development with minimal public scrutiny.
Vague Definitions Undermine Environmental Protection
One of the government's key reforms introduces the concept of "unacceptable impacts" that would prevent particularly damaging developments. However, experts say the definition lacks clear thresholds and remains open to ministerial interpretation.
The legislation uses subjective terms like "seriously impair the viability" of species or "cause serious damage to critical habitat" without providing explicit definitions or measurable standards. Professor Wintle argues that objective tests would benefit both the environment and industry by providing certainty about what constitutes an unacceptable impact.
With the government pushing for parliamentary approval before year's end, environmental lawyers suggest simple amendments could address many concerns, such as removing the repeated phrase "the Minister is satisfied" from key provisions.
