The federal government is proposing to devolve the power to approve developments which affect matters of environmental significance, listed under the Environmental Protection and Biodiversity Conservation Act 1999, to the State Government.
The EPBC Act is the Commonwealth’s core piece of environmental legislation which outlines the legal framework for the management and protection of nationally and internationally important flora and fauna, as well as the approval of actions or developments that affect these species.
It also regulates the management of Australia’s World Heritage Sites and international treaty obligations on the environment.
The federal government argues devolving development approval powers under the EPBC Act to the states and territories will “streamline” the approvals process for businesses and avoid “unnecessary duplication” when state and federal governments assess the same project twice.
The Marshall government expressed in-principle support for the devolution proposal at a meeting of national cabinet in July last year. The changes are currently before the Senate.
But the Environmental Defenders Office, a national legal services firm specialising in environmental law, says South Australia’s current environment and planning laws fall short on at least 14 requirements of the EPBC Act.
The firm says neither the federal nor state government have undertaken “any meaningful analysis of whether South Australia’s current laws are fit for this purpose”.
“It is clear that matters of national environmental significance are not adequately protected under current South Australian laws, and any devolution of EPBC Act approvals powers would require substantial reforms of South Australia’s laws to ensure they actually meet existing requirements,” an EDO briefing note on the proposal states.
Among the legal group’s concerns with South Australia’s environmental protection laws are:
- they do not explicitly refer to – or require consideration of – Australia’s international treaty obligations, including World Heritage listings
- they do not require consideration of impacts to federally listed endangered species and vegetation
- they do not require decisions on projects for which the State Government is a proponent of to be made by an independent decision-maker
- they only “partly prohibit” the approval of nuclear actions.
“If the EPBC Act approvals functions are devolved to South Australia, based on existing state laws there is a real risk that matters such as Ramsar sites and migratory birds would not be adequately protected in line with our international obligations,” the briefing note continues.
“In particular, the iconic Coorong at the mouth of the River Murray and those species visiting the Adelaide International Bird Sanctuary will be at risk without enforceable national protection and intervention.
“Furthermore, numerous EPBC Act-listed threatened species and ecological communities would have reduced protection from habitat destruction and any offsets required would not necessarily compensate habitat losses.”
There are around 200 federally listed threatened species in South Australia, compared with more than 1000 listed under state law.
EDO director of policy and law reform Rachel Walmsley said the absence of federally listed threatened species in SA law was the most concerning aspect of the devolution proposal, as “the vast number of referrals” under the EPBC Act relate to endangered species protection.
“What it will mean is that there are certain … iconic species like the migratory species of the Adelaide International Bird Sanctuary or certain species in South Australia like your Southern Brown Bandicoot or your Yellow-footed Rock Wallaby – those species will have less protection from projects that are proposed at the moment,” Walmsley said.
“[When a project is proposed], you’ve got your South Australian laws but there’s also these matters of national environmental significance so there’s that extra layer of federal assessment and approval required by the EPBC Act.
“If powers were handed over to South Australia and the EPBC Act no longer had to be applied, then that removes that whole backstop, that whole level of protection at the federal level.
“The fate of those species and those iconic places would be purely dependent on South Australian laws, and according to our assessment of those laws, the South Australian laws don’t actually provide that same level of assessment that the EPBC does.”
The EDO’s analysis of all laws in all eight states and territories found that only the ACT’s planning laws reference federally listed species.
No planning laws in any state or territory refer to world heritage conventions.
The EDO’s briefing note says that “all states – including South Australia – would need to do significant law reform to meet existing national environmental requirements” due to the “significant risks, liabilities, resourcing issues and uncertainties” associated with the devolution proposal.
South Australian Law Society President Rebecca Sandford said while the current EPBC Act is “far from ideal and in need of reform”, it has provided a “reasonably solid framework” for legislative approvals.
“The intention of the Federal Government to devolve its environmental approval responsibility to the States may streamline the process, but it is crucial that appropriate legislative safeguards are in place to ensure that State Governments seriously consider the environmental impacts of development proposals,” she said.
Sandford warned that state governments may be inclined to view development applications through a different lens than the Commonwealth.
“States may have a greater tendency in some cases to give more weight to economic considerations or political expediency over environmental concerns,” she said.
“Whereas the Commonwealth, by virtue of usually not having as much at stake politically, would often be better placed to objectively assess developments by reference to Australia’s international law obligations for the protection of the environment.
“Also, the Commonwealth would be appropriately placed to consider environmental impacts of proposals that cross State borders.”
Sandford said Samuel’s recommendation for a “full suite of strong, legally enforceable national environmental standards” should be established, but the reforms need to be subject to public consultation and parliamentary review.
“There must be appropriate mechanisms to enforce compliance with these standards,” she said.
“This should occur prior to the passage of current EPBC amendment bills which remain before Parliament.”
The federal government’s proposal to amend the EPBC Act came after a once-in-a-decade review of Australia’s environmental laws from former ACCC Chairman Professor Graeme Samuel.
In his final report handed down in January, he found the EPBC Act is “not fit to address current or future environmental challenges”.
He recommended developments be assessed against a series of “legally enforceable national environmental standards” to ensure “all decisions clearly track towards improved environmental and heritage outcomes”.
He also proposed the federal government devolve approval laws to the states and territories if state governments can demonstrate that their environment regimes comply with the national standards.
InDaily contacted the office of Environment Minister David Speirs for comment but did not receive a response before deadline.
Local News Matters
Media diversity is under threat in Australia – nowhere more so than in South Australia. The state needs more than one voice to guide it forward and you can help with a donation of any size to InDaily. Your contribution goes directly to helping our journalists uncover the facts. Please click below to help InDaily continue to uncover the facts.