Australia Legal Environment

The interim report headlined that Australia`s environment is in an unsustainable state of decline and that our iconic places and species are increasingly threatened by habitat destruction, climate change and invasive species. He noted that the law was ineffective and that successive Governments had not implemented it. The government must also describe how it will address the massive environmental blackouts identified in Samuel`s interim report. Australia has the highest mammal extinction rate in the world, and governments have failed to protect habitat, implement recovery plans for endangered species, or address the greatest threats to our environment. This was already the case before the 2019-2020 bushfire disaster, which put more species and ecosystems at risk. The third judge considered that the Minister`s obligations, anchored in an environmental framework, could therefore be accompanied by a duty of care. Our environment, he said, «is not only there to admire and objectify.» However, a recent inquiry by the Senate Committee on Animal Extinction concluded that there are «serious questions as to whether the EPBC bill is still fit for purpose and actually achieves [its] objectives.» The committee recommended new legislation to replace the EPBC Act, as well as an independent EPA «with sufficient powers and means to monitor compliance with Australian environmental laws». Similarly, a recent major UN report on species extinction recommended strengthening environmental laws, policies and implementation. However, industry groups such as the Minerals Council of Australia believe that the increase in federal environmental powers will mean more of a «green belt,» leading to delays in development permits. The Minerals Council suggested that creating a federal EPA would create another layer of «green bureaucracy» that would «cost jobs, deter investment, and facilitate project disruption and delay.» Instead, he argues that existing regulations should be streamlined to make them more efficient and effective. The Australian Constitution does not explicitly give the Commonwealth Parliament the power to legislate for the environment.

However, the Commonwealth may legislate under a number of indirect constitutional powers in environmental matters. These include power in external relations (based on Australia`s obligations under international agreements) and extended corporate power. The EPBC Act focuses on protecting nine «issues of national environmental importance.» These are largely based on Australia`s responsibility under international environmental agreements, as well as political agreements between the Commonwealth and states. These include an agreement reached in 1997 by the Heads of Agreement on the roles and responsibilities of the Commonwealth and the State in environmental matters. But the other two were deterred from their view that the EPBC law does not protect the environment in general. Nor is it explicitly aimed at mitigating climate change. It works on a piecemeal basis, rather than looking at ecosystems as a whole or our dependence on them. Its recommendations called for a review of the laws, which would take place in three phases.

The basis for the reform would be a new set of legally enforceable national environmental standards, with an independent regulator tasked with enforcing it. For decades, it has been recognized that humans depend on the environment for their survival and that a stable climate system is necessary for life as we know it. The EPBC Act defines an «interested person» as a person or entity whose interests have been or would be harmed by the conduct in question, or who, at any time in the past two years, has engaged in a series of activities aimed at protecting or conserving (or seeking the environment). The trigger for water was a change introduced by the Labour government in 2013 that requires coal and coal seam gas projects that affect water resources to be assessed under national environmental laws. The EPBC law has been criticized since its adoption for its incomplete coverage due to the limited list of issues classified as of national environmental importance. The law, for example, does not directly address land deforestation or climate change, although there have been various proposals to create a «greenhouse trigger» dating back to the Howard government. The Commonwealth has accredited state and territory assessment processes. However, accreditation of state and territorial approvals has never taken place, despite attempts by the Australian government to create a «one-stop shop» for environmental permits.