Australia’s road to ‘nature positive’: newly announced detours and delays

Those who have been waiting to see the Federal Government’s long-awaited ‘nature positive’ reform package will have to wait a little longer, with the Minister for Environment and Water announcing on 16 April 2024 plans to stage the introduction of the reform legislation.

In this alert, we look at which reforms we can expect to see introduced in the coming weeks, which have been deferred and what new funding has been committed to speed up environmental approval processes in the interim.

Background

As explained in our previous alert, the Nature Positive Plan is the Federal Government’s blueprint for national environmental law reform. It includes the replacement of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), the rollout of legally binding National Environment Standards, the establishment of the independent Environment Protection Australia (EPA) and Environment Information Australia (EIA) and the creation of a world-first Nature Repair Market.

All legislation required to give effect to the reforms was originally intended to be introduced to Parliament by the end of 2023. Only the legislation underpinning the Nature Repair Market met this deadline (see our previous alert on its last-minute passing in December 2023, which also fast-tracked the expansion of the water trigger), with the Federal Government deferring the introduction of the additional 4 Bills which will replace the EPBC Act to “as early as possible in 2024”.

Now, the Federal Government has announced further staging of the remaining reforms.

What happens now?

Stage 2

Draft legislation to establish the EPA and EIA is set to be introduced to Federal Parliament in the coming weeks, in conjunction with $100 million in additional funding to support faster environmental approval decisions.

While the EPA was originally intended to be an independent statutory authority tasked with assessment and compliance, we understand the EPA may form part of the existing Department of Climate Change, Energy, the Environment and Water (Department) in the interim until such time as the Stage 3 reforms are passed. The full scope and extent of the EPA’s functions and powers in this interim period will become clearer once the draft legislation is introduced.

While we also have not seen the draft legislation establishing the EIA, its intended role includes providing government and the public with high quality environmental information, publishing State of the Environment reports every 2 years and publicly reporting on Australia’s progress towards its commitment to protect 30% of Australia’s land and seas by 2023.

The $100 million investment announced on 16 April 2024 is intended to include:

• more support for staff to assess project proposals from businesses, including for renewables and critical minerals projects;
• more tailored support to help businesses more effectively comply with environmental law;
• more funding for research into threatened species so sensitive areas can be more easily avoided and suitable projects can be more quickly approved based on robust, existing publicly available data; and
• more planning (working with State and Territory governments) in 7 priority regions to make it clearer to businesses where complying development can more easily occur and where the ‘no go’ areas will be.

Stage 3

The indefinite deferral of the Stage 3 reforms could ultimately see the most significant reforms deferred until after the 2025 Federal Election.

While this may generally bring relief to industry and disappointment to conservation groups, the key benefit that comes with the delay is the Federal Government’s intention to now consult more meaningfully on those reforms and to provide a comprehensive exposure draft prior to introducing the new laws to Parliament. Currently, consultation has largely occurred behind closed doors and the public was not expected to receive an adequate consultation opportunity before that draft legislation was introduced.

Next steps

We will continue to monitor the progress of the Stage 2 and Stage 3 reforms, including what functions the EPA will have as part of Stage 2 as compared to Stage 3.

The Department is hosting a public webinar at 2pm AEST on Friday 19 April 2024 to provide an update on the progress of the Nature Positive reforms - registration details are available here.

We encourage industry to monitor the ongoing reforms and engage in further consultation processes as they become available.