Australian environmental reforms set to introduce new watchdog, faster approvals

The EPBC Act was introduced in 1999, making it over 25 years old. Two reviews in 2009 and 2020 were critical of its complexity and effectiveness, but reforming it has been no small task.

The Albanese government promised to overhaul the EPBC Act ahead of the 2022 election, but shelved plans ahead of the 2025 federal election after struggling to win support from the crossbench, particularly those from Western Australia.

On Monday, the draft legislation was circulated to industry groups. The government believes the changes will deliver stronger environmental protection, while striking the right balance in ensuring faster approvals for renewable energy projects, housing and new mines needed to achieve its ‘future made in Australia’ agenda.

The National Environmental Protection Agency Bill, one of the seven bills introduced under these sweeping reforms, will establish the National EPA, known as NEPA, in the bill. The draft legislation identifies a number of powers to be conferred on the new NEPA, including the ability to establish advisory groups to carry out its duties and all functions conferred on the CEO by the EPBC Act.

The draft EPBC Act includes new powers for the minister to issue “protection statements” that will tell decision-makers, such as the head of the Environmental Protection Authority, to consider the impact on threatened species when considering projects. The statement will clarify restrictions on developments in areas containing critical species habitats.

The legislation will also strengthen the environment minister’s ability to override the standard process and approve projects if they believe it is in the national interest, by allowing conditions to be imposed that must be satisfied by a project developer within a certain timeframe.

Passing the bills will not be easy. Without a majority in the senate, the Albanese government must negotiate with either the Coalition opposition or the Greens on the crossbench to ensure that the legislation passes.

Despite signs that the Albanese government intended to do a deal with the Coalition to pass the reforms, the opposition’s request to split the environmental laws into two parts – focusing on the fixes to the approvals process and leaving other, more contentious, issues until a later date – has been rejected by the government.

“We need to have a clear definition of the types of projects that would simply be unacceptable to the impact they would have on the environment,” environment minister Murray Watt said.

“Of course, that would be beneficial for the environment in stopping unacceptable developments going ahead but it’s also really important for business to have the kind of clear definition, so they get a fast no on a project and know that a particular project isn’t going to get approved.”

The Greens have made clear that they want a climate change ‘trigger’ baked into the legislation, forcing projects that go above a certain level of carbon emissions to require federal approval. The Albanese government has rejected this idea, instead proposing rules forcing projects to disclose how they will instead comply with existing climate laws under a ‘safeguard’ mechanism.

Business groups have also raised concern over the definition of ‘unacceptable impacts’ and the powers given to the CEO of the new Environmental Protection Agency in respect to stop work orders.

Although the draft legislation has been introduced to parliament today, the government still needs the support from either the Greens or the Coalition to ensure it is passed into law. How this impacts the reforms remains to be seen.

Co-written by Miranda Frith of Pinsent Masons.