Rachel Walmsley Policy & Law Reform Director, Environmental Defenders Office, NSW

The biodiversity of Australia is extraordinary. It is diverse, spectacular, often unique and vital for ecosystem health, human wellbeing, and productive landscapes. It has immense intrinsic as well as commercial value. It is also under threat.

Extinction of fauna species is a national tragedy. And it is a national embarrassment that we are world leaders in fauna extinction rates. Almost 2,000 species and ecological communities are listed as critically endangered, endangered or vulnerable to extinction in Australia, with many more listed at the State and Territory level. The fact that our current laws are failing to protect even iconic species like koalas does not bode well for protection and recovery of the less charismatic but ecologically important species of flora and fauna.

The role of law in turning around the current trajectory of biodiversity decline is critical.

Australia’s laws are sometimes accused of merely ‘cataloguing extinction’, rather than preventing it. The laws may look good on paper—for example, including mechanisms for scientific listing processes, and for threat abatement and recovery planning—but our current laws are not adequately resourced or effectively implemented.

Our national law, the Environment Protection & Biodiversity Conservation Act 1999, is due for a review this year. In 20 years of operation, only a handful of projects have been refused, with most developments approved (sometimes with conditions) even where they are likely to have a significant impact on a matter of national environmental significance. It is clear from the evidence that the laws need a re-write, not just a tweak.

EDO NSW has prepared a report for Humane Society International which sets out the basic requirements for the introduction of the next generation of national biodiversity law in Australia. The report was published in June 2018 and follows earlier proposals in 2015 and 2017. Credit: EDO NSW.

Recent regression of laws at the State level makes national leadership even more important, consistent with our international obligations to protect biodiversity. Based on our experience across all jurisdictions, the Environmental Defenders Offices (EDOs) of Australia support the development of stronger national environmental law. Below are 14 law reform ideas that could help better protect our unique biodiversity:

1. A new Australian Environment Act that elevates environmental protection and biodiversity conservation as the primary object or aim of the Act.

2. Duties of the decision makers to exercise their powers to achieve the Act’s aims, and apply expanded principles of Ecologically Sustainable Development and non-discretionary obligations to achieve the Act’s aims.

3. Strong institutions to steer proactive and evidence-based environmental policy advice, development, coordination, oversight and compliance activity. Two new statutory environmental authorities are needed, separate from the Department of Environment—a National Sustainability Commission (Sustainability Commission) and a National Environment Protection Authority (EPA).

4. New triggers for federal protection are required. In addition to the existing matters of national environmental significance, the National EPA should also assess actions that significantly affect the a) National Reserve System of terrestrial and marine protected areas, b) Ecosystems of National Importance such as significant wetlands, key biodiversity areas and high conservation value vegetation, whether or not they are under threat, and c) vulnerable ecological communities, which currently receive less protection than endangered species, populations, ecological communities and critical habitat. Further the Act should also address significant land-clearing activities, significant greenhouse gas emissions, significant use and extraction of water resources (beyond coal and coal seam gas project impacts), and other matters of national environmental significance.

5. A dual focus on protection and recovery of threatened species and ecological communities, and landscape- scale conservation plans and programs that are guided by national environment and sustainability plans.

6. Simpler, timely and accountable listing processes for nationally protected matters, backed by strengthened protections.

7. A new framework and emphasis on integrated, multi-sector bioregional plans to coordinate action, protect places of natural and cultural heritage, achieve biodiversity goals and ensure ecologically sustainable development.

8. A National Ecosystems Assessment to holistically identify important natural assets, their status and the ‘ecosystem services’ that nature provides to human society.

9. Greater emphasis on indigenous leadership, land management and biodiversity stewardship, including formal recognition of Indigenous Protected Areas to enable greater access to ongoing funding and legal protections.

10. Strong public participation through greater community engagement, transparency and reasons for decisions.

11. Improved access to justice via merit review rights on decisions that affect the environment, open standing for the public to take breaches to Court, protective costs orders for legal proceedings in the public interest, and a modern compliance and enforcement toolkit to deter misconduct and improve public trust.

12. A national environmental data and monitoring program that links Federal, State and Territory data on biodiversity, strategic planning and environmental impact assessment to ensure strong biodiversity outcomes.

13. A suite of international conservation protections to ensure Australian Governments, companies, citizens and supply chains protect and support global biodiversity.

14. Better resourcing and foresight for agencies, conservation programs and natural resource management, including a cohesive National Biodiversity Conservation and Investment Strategy that pools resources, multi-sector investment in ecosystem services, databases and new tools.

For more information read our report on the next generation of biodiversity Laws, including best practice elements for a new Commonwealth Environment Act.

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