Special Episode: EPBC Environmental Law Reform [S1-09]

Show Notes

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Music: “Insurrection”
Written by Pierre Chrétien
Performed by the Soul Jazz Orchestra
Courtesy of Do Right Music Inc.

Transcript

Callum Sinclair
Welcome to Why Can’t They Just, looking at politics, policy and getting stuff done. My name is Callum Sinclair. I’m a Labor Member and a member of the Labor Environmental Action Network known as LEAN and joining me today is Janaline Oh.

Janaline Oh
Hi, I’m Janaline Oh. I’m also a member of the Labor Party and a member of the Labor Environment Action Network and before we start, I’d like to acknowledge that Callum and I are both recording this on the unceded lands of First Nations people in Australia and I’d like to pay our respects to their elders, past and present, and also extend those respects to any First Nations listeners that we have today.

Callum Sinclair
So today is a bit of a topical and special episode. It’s the 18th of November in 2025 and recently a group of Bills have passed the Lower House, collectively called or known as the EPBC Reforms.

From what I understand, LEAN seems to regard these reforms as a good and positive step in the right direction for the Australian environment and would like to see these Bills passed largely as they are. As a member of the LEAN national community, what are the top sort of five important changes that these reforms make to improve the legislation and reforms around the protection of the Australian environment?

Janaline Oh
Yeah. So just to take a step back, EPBC stands for the Environmental Protection and Biodiversity Conservation Act. It’s an Act that was passed in 1999 by the then Howard government and it was designed to bring together various bits of legislation to establish a kind of national framework for the protection of the environment. The current laws are very much focused on development approvals. They give a lot of ministerial discretion. Essentially the Minister is the decision maker and while there are various processes that the Minister needs to undertake in order to make an approval, there aren’t any really objective environmental benchmarks to measure whether that decision was properly made or not.

The big changes in the reforms that were tabled in Parliament and passed the House of Representatives last sitting, so about two weeks ago, are exactly the definition of some of those environmental outcomes that need to be delivered.

So one of the key innovations is this concept of unacceptable impacts. So, in the current legislation, the Minister may decide to refuse a project on the basis of an unacceptable impact. That’s all it says. It doesn’t say what an unacceptable impact is. Under the proposed reforms, there is actually a list of definitions of unacceptable impacts for each matter of national environmental significance, so this immediately creates a bit more certainty about what is going to be considered unacceptable. So things like for threatened species, it would be: does this thing threaten the viability of this species continuing? If so, it’s unacceptable. For World Heritage areas: if this thing goes ahead, will it compromise the World Heritage property to the point that it no longer has World Heritage value? That would be unacceptable.

Alongside the unacceptable impacts, there’s also a thing called national environmental standards. So this was a key recommendation of a review into the environment laws that was conducted under the Coalition by Graeme Samuel and Professor Samuel said we should have these national environmental standards that are outcomes focused and they should be the benchmark against which decisions relating to the environment and protection of the environment are based. And so these laws, the law reform that passed the House, has proposed to give the Minister a power to create national environmental standards and then all through the reform there are various points at which the Minister needs to be satisfied that a decision is not inconsistent with any national environmental standard before that decision can go ahead. And that covers a whole range of things. So those two things immediately create some environmental outcomes-based benchmarks against which decisions can be measured. So it’s not just process, actually you’ve got to deliver some outcomes.

The second big innovation in these reforms is a really significant change to the relationship between the Commonwealth and the States and Territories. So under the current laws, the Commonwealth is responsible for what are called matters of national environmental significance, and these have been devised specifically to fall under Commonwealth constitutional powers. So most environmental protection and environmental decision making is the responsibility of the States. The definition of matters of national environmental significance gives the Commonwealth a role.

Now under the current laws, the Commonwealth can make an agreement with a State or Territory to say, OK, we think your environmental legislation is OK. And so we are going to just come to an agreement that you can do any approvals, and we will consider those to meet the Commonwealth requirements.

Under the reforms, the Commonwealth can do that, but it has to be an accredited process. The accreditation has to be undertaken by the new National Environmental Protection Agency, which is another big new innovation in these laws, to create an independent National Environmental Protection Agency. The Commonwealth will not now be able to just say to the State of Western Australia, we think your laws are fine, you just go ahead and any environmental approval that you provide, we will consider to have met Commonwealth requirements.

Under the new laws, the EPA will actually have to go and look through the specific processes that, let’s say, the WA Department of Planning undertakes in order to approve a housing project. And it can then say, OK, if these processes will not result in an unacceptable impact and will not be inconsistent with national environmental standards, then we can accredit this agency to undertake approvals on behalf of the Commonwealth for this particular set of projects.

So immediately, it’s a lot more narrow. Secondly, it’s not a blanket accreditation, it is an accreditation that will specifically deliver Commonwealth standards. And thirdly, there will be an ongoing monitoring role for the national EPA to make sure that the State or Territory agency continues to deliver decisions that are consistent with Commonwealth benchmarks. So it’s actually kind of the opposite of the old system. So whereas the old system just said, yeah, go for it, we trust you do what you like, States, the new system is we will license your State or Territory agency to do this particular action, as long as you keep meeting Commonwealth requirements. And when you stop meeting Commonwealth requirements, we will review that accreditation and potentially withdraw it.

So that is a really, really big new innovation and that is a place where I think there is a lot of potential benefit for business because what it means is that businesses can potentially go through one process rather than two processes. But importantly, the pressure from business should be then on the State governments to meet Commonwealth standards so that they can get a Commonwealth accreditation, instead of the current system, where the pressure from business is on the Commonwealth to just say to the States, go for it.

So at the moment, the laws talk about ‘no net loss’, which is just managed decline. The new laws actually say we need to have net gain. Now, a lot of it will depend on who decides what net gain and this is where data becomes very important. A lot of it will also be about how to design net gain so that it’s real, so that it’s not just illusory. But nonetheless, the concept is in there, and I guess what I come back to when I say that this is a very good platform for future reform. Because the concept is now in there and so in the future if we find that the way in which it’s implemented or the way in which it’s designed is not delivering net gain, we have a really good basis for looking at how we can design it better so that it does deliver net gain. But we no longer have to have that threshold fight about do we have net gain or not?

Another potential advantage for business frankly is that having these clear environmental outcomes as benchmarks should actually make it easier for business to understand how to design their projects so that they can actually get an approval.

So you know, whereas at the moment they have to just jump through, again, a bunch of process hoops, and it is really, really worth spending a lot of money on lobbying particular ministers to come to decisions for political reasons, under the new system, there will actually be a more level playing field for those businesses who can’t afford to spend all of their shareholder money on lobbyists and who don’t want to, and who really are quite happy to meet environmental requirements. They just need to know what they are and what they have to do. Because again, one of the messages that we constantly hear from business is the need for certainty. They’re quite happy to abide by the law. They just need to know exactly what they need to do because that is what raises costs. The uncertainty of having to go back and get more information, or do things differently or, you know, go through endless court processes because there is uncertainty.

I guess our view is that these things are really quite significant along with the independent EPA. The other thing that these reforms deliver that we think is incredibly important and that honestly I think has generally been underreported, is the establishment of an independent environment data agency which is called Environment Information Australia. And the point of this data agency is that it will be able to declare particular data as being a national environmental asset, which means it needs to be publicly available.

At the moment a lot of proponents for projects have to undertake their own environmental assessment and gather their own data, even though a lot of that data might already exist somewhere else. So having a kind of public, available register of national environmental assets potentially means that proponents could save money by using data that’s been collected by other people that is relevant to their particular project. It means that things will be more transparent. And also just that the knowledge base will be better because it’s really hard to make decisions on, you know, whether something’s going to damage the environment, if you don’t actually know what’s out there.

And it is really, really hard to do the other really important part of this piece, which is conservation planning - actual restoration of the environment. Because one of the things that LEAN has been pushing for for many years is that we need not just to stop the decline, but we actually need to be restoring the environment. So what having good data will do is make it possible to understand what needs to be done for that restoration piece. So I guess that is a snapshot of, you know, the highlights of the Bill.

I will say, our view is not that these reforms are perfect, and in fact an important part of the EPA’s mandate in the reform Bills is to advise on future law reform, so if the EPA, in administering the Act, finds that some things need to be improved, the EPA actually has a role in advising ministers on further reform that will be needed. And I think that kind of continuous law reform process is also really, really important.

Callum Sinclair
To try and summarise some of the significant good things are: standards, which are clear outcomes as benchmarks and not just process hoops; a national and independent EPA; adjustment to the ministerial discretion over unacceptable impacts; no blanket accreditation to States and with an ongoing monitoring role; and the data agency to make information public and accessible to whatever groups might want to challenge different decisions of over project approvals.

Janaline Oh
I think that is a very good summary. And I think what it comes down to is that the reforms are going to deliver rules where previously there have not really been any rules.

Callum Sinclair
So there have been a number of criticisms about this set of Bills. Why can’t they just end native forest logging?

Janaline Oh
Yeah, that is a really good question. So let me come to what we would actually like to have amended in this round of Bills. So as I said, far from perfect, the two significant things that we have put forward as amendments that we would like to see happen is one on the regional forest agreements. So at the moment there is a provision in the Act that just says anything that is done under a Regional Forest Agreement is exempt from this Act. This is like a great big carve out.

The second loophole that we would like closed is to do with what is called the continuous use exemption. So there is another provision in the Act that says if a thing was done lawfully in 1999, and it is still being done lawfully now, it is exempt from this Act. Now that is being used principally by the agricultural sector in Queensland to essentially do quite a lot of land clearing. They call it clearing woody weeds. We call it deforestation.

So we would like to see that exemption closed, and what we mean by that is not that all land clearing should be banned. What we’re saying is just that land clearing should be considered like any other activity, and should be assessed under the Act like any other activity. So if it is likely to have a significant impact on a matter of national environmental significance, and there is a lot of evidence to show that land clearing activities in Queensland are affecting the Great Barrier Reef - to the point where the UNESCO World Heritage Committee has identified that as a significant threat to the Reef’s continuing value as a World Heritage property - then it should just be considered by the Act.

We are also looking for a bit more structure around a couple of exemptions that the Minister has proposed. Now there is one called the National Interest exemption, which again exists in the current Act, has been used a number of times, mainly to deal with natural disasters. So the idea of this exemption is, if there’s a national emergency, the Minister can just make a really quick decision that may or may not have an unacceptable impact. If there’s a bush fire and the Minister needs to approve clearance of, you know, a bit of sensitive bushland in order to make a fire break, then that probably just needs to be done. We don’t have a problem with that exemption and we think the way it’s worded at the moment makes pretty clear that that is the intention.

There is another one, though, which was recommended by Professor Samuel, although he seems to have walked it back a little bit in the Senate inquiry process. But the second one is what is called a national interest approval and what Professor Samuel recommended was that there may be some rare exceptional circumstances where a project is of such significant national interest that you should be able to override your environmental protections.

He didn’t really specify what kind of project that would be, and the current way in which the reforms are drafted, it says the Minister may take into account defence or security considerations, or something like implementation of international commitments and it’s not limited to those.

But to us that seems quite vague and I guess the concern is that we would not like to see a situation where that just became the go-to because, frankly, every industry with a significant project is going to think it’s of national interest and it, in our view, just gives a little bit too much discretion to the Minister.

So there are guardrails around it. The EPA would have to do a full assessment. The outcome of that assessment would have to be public and the Minister would have to make public their decision and the reasons for it. So there are some sort of transparency guardrails.

We would like to see the addition of a parliamentary guardrail, which says in addition to all of that, the decision to make it a national interest approval should be disallowable by the Parliament. So what that basically does is firstly it means that the government of the day needs to persuade at least the whole of the Senate, or at least enough of the Senate to pass it, that it is of national interest. Like it is of such big national interest that you can override environmental protections. So that’s the first thing.

The second thing is that just going through the parliamentary process is quite difficult, time consuming and potentially annoying, and that in itself will be a disincentive to Ministers to abuse the power.

Now having said that, in terms of native forest logging, you know the reason the Government can’t just ban native forest logging is firstly because it is a state responsibility. But secondly, because you know, like a lot of things that sound very attractive, it’s not necessarily a workable outcome that will deliver what you want. And the reason I say this is because Victoria and Western Australia have both banned native forest logging. In Victoria it was done, I think, essentially as a budget measure. There was not a great deal of policy around how that would be implemented. And as a result, firstly it has had a fairly devastating effect on the timber workers who were still employed in that industry, and I know there’s a lot of, you know, a lot of environment groups will say, well, there’s hardly any workers involved now, and that is true it, it’s not a very large number of workers, but they all have families and they live in communities. And it is also very devastating for them personally.

I was told by a union representative in the ACT that when the South East Forests National Park was declared some years ago by the NSW State government, and a lot of logging jobs were lost, because it was effectively a ban on native forest logging in that area, the union basically spent the next two years putting all of their resources into suicide counselling.

So because we’re Labor, we actually care about these things as well. And I think that is the reason that when we put forward, as in when the Labor Environment Action Network put forward a proposal on forestry to the last ALP national conference, it was all about building an alternative forestry industry that included managing forests for conservation and wasn’t just focused on extracting timber. So I think it is really important to consider the human dimensions. That said, native forest logging has been tremendously destructive, right? So we do need to address it. And the way in which the Minister has promised to address it is by bringing the Regional Forest Agreements under national environmental standards. And this is a position that has been supported in a Senate inquiry process last term by the Australian Forest Products Association, which said we don’t have a problem with applying national environmental standards to the Regional Forest Agreements, because we think that we can continue sustainable logging under national environmental standards. Now again, like with land clearing, what we are saying is, let’s assess forestry activities in the way that we assess all other activities. Let’s look at whether they’re having significant impacts on matters of national environmental significance and if they are, let’s deal with that and make sure that they don’t.

The idea is not necessarily a blanket ban on native forest logging, but the outcome should be an end to the kind of native forest logging that creates a significant environmental impact. Now there are some people who would argue that all native forest logging is going to create that significant environmental impact, and that applying the national environmental standards will actually end the industry anyway. That may be the case. And if that is the case, then, you know, maybe the industry should be ended.

But it should be ended in an orderly way and it should be ended because it’s having a bad environmental impact. So I think it’s about actually tackling the problem. The problem is a bad environmental impact, and the way to tackle that problem is to make sure that all activities, whether they be forestry or whether they be land clearing or whether they be housing projects or mining projects or any other kind of project, should be assessed against the same criteria and essentially should be treated equally according to their environmental impact.

Callum Sinclair
So one criticism that’s been floating around is there still seems to be a large scope for ministerial decision making, particularly in terms of ministerial satisfaction.

If there was a clear objective assessment then you could address that in terms of whether the facts led to a decision against that objective assessment, whereas the sort of subjective ministerial satisfaction test seems to be maybe a bit hard, harder to appeal in a court. Why can’t they just have a more fair, more transparent set of rules and remove ministerial discretion entirely from these reforms.

Janaline Oh
The criticism about ministerial discretion I find a bit extraordinary because one of the things that I’ve seen reported as a criticism about ministerial discretion and one of, I think Sophie Scamps put this forward as a potential amendment in the House debate, is the idea that ‘the Minister is satisfied’ that something is not going to have an unacceptable impact or that it is not inconsistent with national environmental standards is somehow discretionary, I find puzzling. And the reason I find that puzzling is because the Federal Court has been very, very clear that it considers ‘the Minister is satisfied’ to mean that the Minister has taken into account all of the relevant information, has not taken into account any irrelevant information, and has, on the basis of that relevant information, come to the conclusion the requirements for the decision are met.

And a very classic case showing this and the Federal Court’s opinion on this was in 2021, when the then Coalition immigration minister had a visa decision challenged and his argument was he signed the thing, the ministerial submission, saying that he was satisfied and there was this famous photograph of his signature on the ministerial submission on a folder sitting on a steering wheel in a car, suggesting that he signed it while he was sitting in his car. We assume the car was stationary at the time because otherwise I think he probably would have been slapped with a few traffic infringements, but let’s assume he was parked at the time. But nonetheless the court concluded that the amount of time that he had between the submission being delivered to him, and him making that decision, taking into account all of the other things that he was doing at the time, and particularly the fact that he seemed to be signing it, you know, at a sort of roadside stop on his way from Canberra to Sydney, suggested that he could not possibly have read all of the documentation attached to the submission and therefore made himself satisfied that all of the conditions of his decision were met before making that decision. So I think that suggests pretty clearly that the federal court at least has a pretty high bar for what means for what the Minister has to be satisfied of before they can be satisfied. So I find that criticism a bit extraordinary to be honest.

Second thing I’d say, which is relevant as well is, when you say, why can’t they just have an objective set of standards? Why can’t you just say if the decision has to not lead to an unacceptable impact or be inconsistent with national environmental standards in order to be made? You still have to have somebody being satisfied, right? This is a human system. Maybe in future there’ll be some AI tool that can just decide that, yes, this is being met or no, this is not being met. That doesn’t exist at the moment. At the moment we live in a system where somebody has to be satisfied that the requirements are met for any government decision to be made and ‘the Minister is satisfied’ is a very well established formula that sets out a line of accountability that basically says the Minister is satisfied means the Minister takes responsibility for the fact that this decision has met the requirements.

So the Minister is satisfied that this is not likely to have an unacceptable impact means the Minister takes responsibility for saying this is not likely to have an unacceptable impact and if it does have an unacceptable impact, the Minister is accountable for that. That’s what it means.

Callum Sinclair
Moving on to another criticism that’s been floating around, the independence of the EPA proposed has been attacked, I think on two major fronts in that who appoints the CEO of the EPA remains to be sort of the Minister’s, or Parliament’s decision, and that the EPA is limited in the number of decisions they can make without the Minister. So why can’t they just have an independent EPA appointed at arm’s length from the Government, able to make all the relevant decisions over project approvals, data sharing and everything else?

Janaline Oh
Yeah. So, I mean, LEAN’s preferred position on the EPA was that you have an independent board that appoints the CEO against clear criteria around expertise. The clear criteria around expertise are there so the Minister can’t just appoint anyone. It is the Minister who will appoint the CEO, not the Parliament. But importantly, and I think this is being missed in some of the criticism, the CEO cannot be dismissed by the Minister. So once the Minister’s made that appointment, the CEO can only be dismissed by the Governor General, and can only be dismissed for cause, so for a bunch of reasons that are articulated in the legislation.

This is important because it means that the Minister can’t just sack someone on a whim. So yes, the Minister does get to appoint them, but it is against a set of transparent criteria, and the Minister can’t just sack them. So if the CEO starts making decisions that the Minister doesn’t like, the Minister can’t just sack them.

And it’s also very clear in the legislation, that while the Minister can issue a statement of expectations around what the Minister would like the CEO to do - which happens for all statutory agencies, this is not unusual - the CEO is not bound to follow that. The CEO is entitled to do what the CEO thinks is appropriate, according to the mandate laid out in the legislation. So it is an independent structure.

Look, I think best practice is that you would have an independent board and quite honestly, a lot of EPAs in Australia, like the Victorian EPA, for example, have started with this kind of structure and then done a review and discovered that actually it’s best practice to have a board and then they’ve created a board. So it’s possible the Commonwealth will go through that. We had slightly hoped that the Commonwealth would skip that step, but, you know, they haven’t. So I think the criticism is overblown, is what I would say. I think I would agree that it’s best practice to have a board that then appoints the CEO. But I think in the absence of that, having clear criteria for qualifications for the CEO’s appointment, and also making it basically impossible for the Minister to dismiss the CEO for no good reason, as in the Governor General has to agree, is a very important independence measure.

Callum Sinclair
Do project approval decisions lie with the Minister or with the CEO?

Janaline Oh
So again, LEAN’s preferred position would have been that the EPA was the default decision maker. In other words, project approval decisions would, by legislation, lie with the CEO, but that there would be a provision in the legislation for the Minister to call in a decision and make that decision himself or herself.

And the reason for that is because it’s sort of similar to the national interest approval concept, that sometimes there will be a decision that is of overriding national interest that the Minister needs to be able to take democratic accountability for, because the Minister is the one who is, after all, elected and democratically accountable.

They haven’t gone with that model, obviously. So the model they’ve gone for is similar to the current model where the Minister is the default decision maker, but delegates decision making - has the power of delegation. So at the moment the Minister delegates to the department and the department actually makes over 90% of decisions, like the Minister actually makes very few decisions themselves. It would be the same, except this time it would be the independent EPA that would be making those decisions.

I think what I like about the current reform is that the current Minister is binding himself to making decisions according to the rules. So all throughout the legislation you will see the Minister can’t approve a thing or make a decision that is likely to have an unacceptable impact or that is inconsistent with a national environmental standard. And I think those are very, very important guardrails because at the moment, as I said, there are no rules governing ministerial decisions.

So that is a really big step forward and I really don’t understand the argument that somehow these reforms are worse than the current system.

Callum Sinclair
In terms of how, sort of, review of government decisions or of challenging or appealing a poor government decision, why can’t the Government just allow environmental advocacy groups to appeal for merits reviews over decisions, and strictly apply it to only questions over whether the Minister could be satisfied, and not an objective assessment over the impact of the activity.

Janaline Oh
I mean the short answer is that you can always put forward a judicial review, which is exactly what you say. A judicial review would look into whether the Minister made the decision properly, which means the Minister was satisfied without going into the content of, you know, whether the actual facts of the decision were, you know, correct.

A merits review which you know a lot of the environmental groups have been asking for for a long time - basically, I have a lot of issues with merits review. I don’t really understand why you would have an inexpert judge essentially adjudicating on the merits of a pretty technical decision, like a pretty technical set of facts, rather than an expert EPA, because that’s effectively what a merit review suggests. It suggests that somebody decided that the EPA got it wrong, and they are therefore appealing to, I guess, probably in the first instance the Administrative Review Tribunal to look at whether they got it wrong.

Now my experience of the Administrative Appeals Tribunal, which is the Administrative Review Tribunal predecessor, in the case of protection visas, which was where I had some interaction with them in my career as a diplomat, they are not experts. And I don’t really understand why you would take those assessments and decisions out of the hands of the expert body and put it into the hands of somebody who is clearly an expert on matters of legal procedure and, you know, applying the law, but is not necessarily an expert on the habitat conditions of swift parrots, making those decisions on merits. So that is really my issue with merits review. I think quite honestly, part of the reason that environmental NGOs like merits review is because it is a way of stopping things that they just don’t like and you know, again, I don’t think you can run a government that way because at this point, and particularly I think in the current world, the environment movement and the climate movement have so many projects that we actually want to have approved.

So whereas in the past this whole sort of environment versus economy argument was a bit more clear cut, we want to have significant renewable energy projects go ahead, because that is the only way that we have any hope of getting anywhere near net zero.

And I think as a society, we really, really want significant housing developments to go ahead. Now, a lot of that I would like to think is going to be infill in existing suburbs, but some of it is going to have to involve some sort of environmental impact. And I think the key for us is to make sure that environmental impact is not unacceptable, and is managed in a way that avoids environmental harm if it can, and if it can’t, then mitigates that harm. And this is residual harm. This is not unacceptable harm. The draft legislation is very clear that an unacceptable impact cannot be made acceptable through other measures. It’s just unacceptable. So when you’re talking about mitigating environmental impact, you’re talking about residual acceptable impact.

So I think it’s really important to look at these laws in a frame that says things can still get approved. Things can actually happen, and they can happen in an efficient and cost effective way, because that is what we need in order to deliver 82% renewables by 2030 and with luck going even further to something closer to 100% renewables, you know, sometime in the 2040s.

Callum Sinclair
Talking about sort of fighting climate change and addressing the impacts of climate change. So why can’t they just use this legislation to combat the climate emergency?

Janaline Oh
Yeah. So I think a lot of that is premised on the idea that the only way to combat climate change is for Australia to ban new fossil fuel projects. I’m just going to say that. Now, the Government’s argument is that they’re not going to do this because fundamentally I think they don’t think it’s going to reduce emissions, and anybody who’s listened to our episode on climate will know that I tend to agree with them.

We exist in an international market. If Australia just stops fossil fuel projects, then there is a very, very good chance that our consumers are just going to go to other markets internationally. That won’t reduce emissions. What it will do, though, is it will potentially compromise the thing that the Government is trying to do, which is to decarbonise global supply chains through massive investments in green metals, so green iron and green steel, and in green hydrogen. Now a Future Made in Australia is all about building up those clean energy exports eventually to replace Australia’s fossil fuel exports. And there was a thing in the media today saying that South Korea has announced at the climate conference that it wants to ban coal. It wants to stop using coal in its supply chains by 2040. Now that will obviously have a significant impact on Australia, but if the Government’s plan is successful, that coal, that Australian coal, will be replaced by Australian green Iron or Australian green hydrogen or Australian green steel.

Now in order for us, though, to make that succeed, we need someone to buy it. So the Government is doing a lot on the production side there. They’re providing, you know, investment guarantees they’re underwriting things, they’re providing tax credits. But if nobody buys it, it’s not going to fly. And unfortunately, the people who are going to buy that stuff are currently buying Australian fossil fuels. Now Korea’s said they want to phase out coal, and that is awesome. So there opens a massive potential market.

Japan, however, has not said that yet, and they’ve particularly not said that they’ve got a problem with gas and they are our major LNG market. So if we’re to persuade Japanese heavy industry to decarbonize their supply chains by buying Australian hydrogen or Australian green metals, then that is quite risky for them and the way that we persuade them that it is not too risky is by saying we will continue to supply our current fuels until such time as you are able to fully incorporate these new things into your processes and your supply chains. And so please invest in our new things and please give us contracts to buy our new things because we will make sure that if that doesn’t work, you can still get the old things.

So it’s really about setting ourselves up as a reliable supplier, but also making clear that we see the future in supplying green metals and green hydrogen. So to say that, because this doesn’t have a mechanism for the Government to stop new fossil fuel projects means that it’s worthless, I think it misses the point that, firstly, I don’t think it is anything like a given that Australia’s stopping new fossil fuel projects is actually going to make that much difference to the global climate, but secondly, even if you think it will, climate change is a significant key threatening process to matters of national environmental significance, no doubt about it. But there are also other key threatening processes and what this Bill does is it deals with pretty much all of the other key threatening processes. It is also really really worthwhile to deal with those other things.

And I would say that, about the other things like even the things that LEAN has put forward, right, we would like to see those amendments, but if we don’t get those amendments, we would still like the Bills to pass. And the reason for that is because, as I said at the beginning, we don’t see this as the end of the road. There is always going to be law reform needed and we like that there is an inbuilt mechanism for the EPA to recommend law reform, but that also doesn’t mean that LEAN’s going to lay back and not push for further law reform. We’re going to be out there campaigning for further improvements as long as we see further improvements needed.

Callum Sinclair
I’ve got two more criticisms I’ve found out in the wider world. One of them is about offsets, which are seen as payments to destroy the environment. It’s being seen as a licence to damage the environment. What is the reform’s position on offsets, and how do they work and are they a problem?

Janaline Oh
So as with everything, everything is in the implementation, right? But in terms of the rules that have been proposed, I will be honest. You know, the Minister undertook a huge consultation process before he put these laws on the table and that consultation process also built on a massive amount of consultation done last term by Tanya Plibersek when she was Minister for the Environment. And a lot of the measures around offsets that have been proposed are very consistent with some of the concerns that were raised by the environment movement in the course of those consultations.

So one of the really valuable things that we have won is there is a mitigation hierarchy built into the offsets regime, which is firstly, an impact cannot be unacceptable. Secondly, for acceptable impacts, if you can avoid it, you have to avoid it. So if that means you have to redesign your project or change your siting to avoid the impact you need to do that. If you can’t do that, then you have to look at mitigating it. And what that means is maybe designing your housing development in a way that doesn’t interrupt a wildlife corridor or, you know, do something to the local water catchment. If you can’t mitigate it, then you can look at offsetting and in fact, even if you can mitigate it, but you can’t completely avoid it, you still have to look at offsetting, and the offsetting has to deliver a net gain and this is where net gain actually becomes a very important concept.

So the first choice of offsets is nearby on site, like for like offsets. So if you’re going to do damage to some bit of wetland that it’s going to affect some particular species’ habitat, you need to try and find something nearby that delivers similar services for that species and look at delivering some sort of restoration or expansion of that nearby site so that there is a better situation for that species in terms of bigger area or, you know, restoring something that’s previously being degraded, to offset it.

And then if you can’t do any of those, then you can look at making a restoration payment, which is a payment into a central fund that is managed by an independent monitor. And those funds will be allocated to priority investments for biodiversity restoration by that monitor. Now, this is the thing that people are nervous about and they are rightly nervous about it, right? Like, the New South Wales government had a Biodiversity Offset Fund, which was catastrophic because the biodiversity offset payments were basically treated as a cost of doing business.

So there was no mitigation hierarchy. Secondly, a lot of the funds just weren’t used. They just sat there and nothing happened to them. So those investments never happened, so there was no biodiversity gain. I think the way in which the Government proposed to deal with this in the previous term was actually to have a formula for the restoration payments that meant it would almost always be more cost effective to do something on site.

The second thing that they’ve done is they’ve insisted that part of the rules for the monitor is that they have to show that they’ve expended the funds within a certain time frame - I think it’s either one year or three years - of the money going in and they have to be very transparent about what the investments have gone to. So I think there are safeguards in there. I’m not going to stand here and say that the offset standard is perfect. I will say that it takes into account a lot of the concerns that were raised by environment groups through the consultation process.

But having said that, if it proves that in reality on the ground it’s not delivering within a couple of years, then there is a mechanism built in to enable it to be reviewed and tightened and improved.

Callum Sinclair
Part of the concern over offsets is that they feel a bit like they have similar problems to what carbon credits do in that they allow for protections of the environment which were already protected. But someone says, oh no, I’m going to bulldoze this and I need money not to. And then they get money and they don’t bulldoze it. And so it involves protections of things that are already protected or, you know, projects that would have already gone ahead. And it often feels like that trying to offset doesn’t usually deliver good environmental outcomes.

Janaline Oh
Yeah. Well, Tanya Plibersek used to put it like this, right, if you want to bulldoze one bit of swampy land and then you say, oh, well, if you let me do this, then I will make sure that nobody bulldozes this other bit of swampy land. And you say that it’s OK, they go ahead. But you still have only one bit of swampy land where you used to have two bits of swampy land.

So that is basically the problem that you’ve articulated and it is a real problem, right? Avoided deforestation has been one of the absolute dodgiest parts of the carbon credits scheme, and that is why Chris Bowen did a review into it and has actually suspended all new projects. Avoided deforestation is no longer a legitimate way to generate carbon credits. There are still some existing projects out there, but there haven’t been any new projects of that nature since 2022, I think, because of exactly that problem.

So what Tanya said at the time was that she wants to aim, in this law reform, to ensure that you still have your two bits of swampy land. And in fact, those two bits of swampy land are better than they were before. So I think that’s why the offsets regime has been designed to be firstly, according to the mitigation hierarchy, so you don’t go straight to offsets at all. But when you do go to offsets, the concept of net gain is going to be very, very important.

Callum Sinclair
I’ve got my final criticism that I’ve sort of scrounged from the Internet. I believe that there’s a view that a species being put on an endangered list in Australia is a bit of a death sentence. In other countries like America, these species see real revitalisation and often get lots of money thrown at them. Whereas here, it can just be a signal up, you know, get your last views, folks, because this is about to go extinct. Is that an accurate portrayal because this legislation does deal with reform of the recovery plans? Are Australian recovery plans insufficient and why can’t they just spend the money and stop extinctions of Australian mammals, plants and insects?

Janaline Oh
That is such a good question. I think the short answer is yes, Australian recovery plans have been insufficient. I don’t think there’s a lot of controversy about that statement. What these reforms do is that they require the Minister to issue protection statements and the protection statements need to actually protect the thing that they’re about.

Part of the problem, frankly, has been that recovery plans are one of the things where the States and Territories have to agree before they can be implemented, and sometimes the States and Territories just haven’t come back to the Commonwealth. So I think the protection statement should overcome that problem because that is a thing that the Minister, the Federal Minister, will issue and then that will empower the federal government to act on them.

One of the things that hasn’t been discussed by the federal government so far and which I think actually does need to be discussed is how much money are they going to have to implement this and one of the things that we will definitely be pushing very, very hard for is to have a proper budget allocation. Firstly to ensure that the new EPA can do the job that it needs to do: that it will have enough staff and it will have enough expertise and it will have enough resources to do what it needs to do. That Environment Information Australia will have enough resources to do what it needs to do and that there will be a sufficient budget to actually implement all of these conservation plans and recovery plans and bioregional plans and all of the additional stuff that is supposed to happen under this legislation. Because obviously if you are going to have a system that works properly, it has to have the level of investment that enables it to work.

Now that is obviously about budget allocations, which is, you know, a bigger question than just the environment law reform. But I think definitely there is a very strong argument to be made to the federal government that it should be making this a priority, and certainly I would say in the next forward estimates, over the next four years, in this sort of crucial initial implementation stage of the laws, if the federal government puts in a big enough investment to make these laws actually work, it will make such a difference not only to the environment, but also to public trust in the Government’s ability to deliver on its promises. So I would say, yeah, absolutely bring on the money. We need it.

Callum Sinclair
I have a few other questions, sort of about general things to do with the EPBC, which is what is the current role of indigenous First Nations people and their knowledge? What is the change in their role?

Janaline Oh
Yeah. So part of the objects of the current act, which won’t change, is that one of the objects of the Act is to promote the role of Indigenous knowledge or to promote and recognise, I think, the role of Indigenous knowledge in biodiversity conservation. There isn’t really anything operational in the current Act. There is consultation, as you say, with Indigenous groups and traditional owners for various projects. Under the reforms, there will be an Indigenous Advisory Committee, which will have the same legislated status as the Threatened Species Scientific Committee, the Water Resources Committee, a number of other expert committees that will advise the Minister on various aspects, so it immediately puts the status of the Indigenous Advisory Committee on a par with the scientific committees, which I think is quite important.

The second thing is the Government has promised an Indigenous - a First Nations consultation standard, which I know they have been consulting with a number of First Nations groups over the past term and throughout this term so far. Now does this mean that every Indigenous person in Australia is going to be happy with every decision that comes out? Probably not. I think it is very unfair to think that you know a million Indigenous people in Australia all have the same view about every single thing. So there are going to be differing views. I mean, traditional owners on the sites of specific projects often have differing views about the project and its potential costs or benefits to their communities. So I think what the Government needs to do and what I think it is trying to do is to have rules and processes to maximise the chances that Indigenous views are properly taken into account.

Callum Sinclair
There’s been a lot of talk about standards and what the standards should look like and whether they should be in legislation or whether they should be in the regulations. Tell us about the standards in the EPBC Act and how they operate.

Janaline Oh
Yeah. So one of the big wins I think is the idea that a very sort of baseline set of standards is legislated and that’s the unacceptable impacts. So if you do a thing that is so bad that it will send something extinct or destroy World Heritage property, you can’t do it. I think that’s quite a big win.

Beyond that, there is a need for more detailed environmental standards to deal with those other things, right? And it’s not just about approvals, it’s also about conservation planning. And it’s also about offsets. And it’s also about regional plans. Because you want all of these things to be able to meet a set of environmental standards that aren’t just the absolute bottom line, don’t send a thing extinct, that are actually starting to look at how you can not only protect, but also start restoring the environment. So I think there is a role for the standards, so as well as the unacceptable impacts baseline in the legislation, I think there is a role for standards in a sub-legislation regulation. And the reason you would want to do it in a regulation rather than the legislation is because scientific knowledge is changing all the time.

Now there isn’t a requirement to make standards that is true, but what there is in the legislation is a no regression provision that says once the Minister has made a standard, then any review of that standard, or any change to that standard cannot be worse for the environment than the standard that has been made. So in other words, when the Minister makes these standards - and he’s already promised to make a number of them, and he’s actually now published drafts for two of them. He’s published drafts for the matters of national environmental significance and for offsets, and he’s promised drafts for, I think, First Nations consultation and environmental data. Once he’s made those standards under that no regression clause, a future minister can’t just repeal those standards unless they can demonstrate that not having those standards is better for the environment than having the standard, and I think that would be a pretty hard thing to demonstrate, but more importantly, if a future minister wants to review those standards, they can’t just gut them.

So I guess the real message that I would like to give to people about this law reform is that it is not perfect, like no way is it perfect, but it is a significant step forward. It is much better than the current laws, and what is really important about it is that it embeds a number of really important concepts into the legislation, like a definition of unacceptable impacts, like national environmental standards, like the idea of net gain, like an independent EPA, like an independent environment data agency, like an accreditation process for the States that is under Commonwealth supervision and not just up to the States.

All of these things, even if they are not perfect right now, provide a really good basis for further reform.

Callum Sinclair
Thank you, Janaline. This music is called Insurrection, written by Pierre Chrétien, performed by the Soul Jazz Orchestra, courtesy of Do Right Music Inc. My name is Callum Sinclair.

Janaline Oh
My name is Janaline Oh and this is Why Can’t They Just.