Australian ‘nature plan’ represents radical transformation for environmental legislation

The Nature Plan

The ‘Nature Positive Plan: better for the environment, better for business’ (60 pages / 193MB PDF), known simply as the ‘Nature Plan’, is the government’s formal response to a 2020 independent review into the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). It outlines ministers’ plans to radically overhaul the EPBC Act and wider Commonwealth environmental regulation.

Implementation of the Nature Plan will include a package of new national environmental legislation, prepared in the first six months of 2023. The government will consult with stakeholders while the new laws are drafted before they are introduced into the parliament before the end of 2023.

Detailed reform package

At a strategic level, the Nature Plan proposes to introduce national environmental standards, which will set out the environmental outcomes that the proposed reforms are seeking to achieve. The initial national environmental standards that the government intends to develop relate to matters of national environmental significance; First Nations engagement and participation in decision-making; community engagement and consultation; regional planning; and environmental offsets.

The draft national environmental standards will be subject to extensive consultation and released in draft form alongside the amendments to the EPBC Act. It is intended that these will be given legal effect, and that these standards will guide all decision making and enforcement under Commonwealth environmental laws.

Amendments to Commonwealth environmental legislation

Key substantive amendments to Commonwealth environmental legislation proposed as part of the Nature Plan include the creation of an independent Environment Protection Agency (EPA) responsible for administering Commonwealth environmental laws independent of political influence, although the Minister for Environment will have the power to ‘call in’ decisions that would otherwise be made by the agency.

State and territory agencies will be allowed to apply to become accredited decision makers under Commonwealth environmental laws, allowing for ‘single-touch’ approvals. It is likely, however, that the single-touch approval process will take several years to come into force given the proposed accreditation requirements for state agencies.

Amendments will make climate impacts a mandatory consideration for decision makers when granting Commonwealth environment approvals. Proponents will be required to publish the expected scope 1 and 2 emissions for their projects and justify how project emissions align with Australia’s commitments to reduce its emissions by 43% on a 2005 baseline by 2030.

The reforms also seek to reduce ‘green tape’ in biodiversity conservation laws, including by establishing a liquid ‘nature repair market’ for biodiversity offsets, administered by the Clean Energy Regulator. Meanwhile, land use preservation environmental offsets will be phased out in favour of environmental restoration offsets, and the ‘water trigger’ under the EPBC Act – which currently only applies to large scale coal mining and coal seam gas – will be expanded to include all forms of unconventional gas, such as shale and tight gas.

Amendments will introduce mandatory consultation with First Nations people impacted by projects as well as dedicated legislation to protect First Nations cultural heritage, replacing the existing Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The government also intends to put in place regional plans by 2028 that designate areas of high environmental value where development is prohibited; areas of moderate environmental value where development is subject to an approval process; and priority development areas where development can proceed without Commonwealth approval. The amendments will also harmonise radiation control laws across states and territories. 

The long-term outlook

The proposed changes are the first step in what is likely to be a radical transformation in Commonwealth environmental legislation. We anticipate that, while the assessment process for Commonwealth environmental approvals is likely to simplify and align more fully with state approval timeframes, the required rigour of project assessments will only continue to increase. This could result in increased assessment and offset costs in the longer term.

Co-written by Alec Kibblewhite of Pinsent Masons.