What is the EPBC Act and how is it meant to protect our marine wildlife?
The EPBC Act is Australia’s primary legislation governing the protection of nature. Since 1999 its purpose has been to protect and conserve the environment, including biodiversity, and to promote the sustainable use and management of natural resources.
Is it working?
The EPBC Act was an important development when it was created over two decades ago because it showed the Australian government’s commitment to environmental protection. However, over the years, cracks in the law have widened, allowing the ongoing destruction of Australia’s unique seascapes. Given Australia’s dubious honour as the world leader in mammal extinctions, and the fact that our coral reefs, kelp forests, incredible marine life are reaching breaking point, it’s safe to say, no, the current nature laws are not working. They are weak, outdated and failing.
It’s time for new nature laws
The report from the second ten yearly independent review of the EPBC Act, conducted by Professor Graeme Samuel AC, was released in October 2020. The Samuel Review unambiguously found that the EPBC Act is not fit for purpose and in need of substantial reform, suggesting a number of changes including a move to focus on outcomes rather than processes. One of the Samuel Review’s key criticisms of the EPBC Act is that it focuses too much on how decisions are made and not enough on the actual impact of these decisions on the environment. Currently, the EPBC Act doesn’t make it clear what needs to happen to protect our environment. It doesn’t, for example, make it mandatory for Ministers to stop species from going extinct, safeguard important habitats for threatened species or stop projects that add to climate change.
This wasn’t a surprise for the nationwide Places You Love (PYL) alliance. AMCS is a leading member of this group of conservation organisations, who have been advocating for stronger environment laws since 2012.
Australia’s east and west coasts provide front row seats for the annual humpback whale migration between their feeding grounds in the Antarctic and breeding areas in the warmer tropical waters in the north. Their status as cetaceans and migratory species makes them eligible for protection under the Act. In order to protect humpback and other whales, it is essential that their critical habitats - their feeding, breeding, nursing areas and migratory routes - are better protected.
Any human activity that may have a significant impact on whales or their habitats requires assessment and approval under the EPBC Act. This includes activities like shipping, fishing and coastal developments in areas frequented by whales. The Act requires that activities with significant impacts on whales must have mitigation measures implemented to minimise harm. For example, shipping lanes may be adjusted to avoid collision risks with whales, and fishing practices may be modified to reduce bycatch.
However, the Samuel Review found the Act is not providing sufficient protection for habitats that are critical for many marine species. Instead of being focussed on the necessary environmental outcomes, the EPBC Act currently sets out the steps to evaluate how they are impacted, in many cases losing sight of the need for greater protection in the first place.
In reality, there is very little enforcement and compliance. The resources allocated for monitoring and enforcement are often limited, making it difficult to effectively police and regulate activities that may harm marine wildlife. Insufficient penalties and a lack of systematic monitoring are undermining the Act's effectiveness and putting wildlife at risk. The slow and bureaucratic processes of the Act also result in decision-making delays, which can impede action needed to address potential threats to marine wildlife and their habitats.
The EPBC Act is not only failing to prevent habitat and wildlife harm, it is failing to address the recovery of threatened species and habitats. New nature laws need to ensure that recovery is a central element of the reforms, and that well-funded recovery strategies are in place for all threatened species.
How do we fix our nature laws?
Right now, the Australian government is rewriting our national environment laws for the first time in over 20 years. We have a once in a generation opportunity to demand strong laws that protect and help restore habitats and biodiversity.
The key elements of reform we’re asking for include:
A strong set of outcomes focussed National Environmental Standards are essential if we want to protect our environment and future proof it against bad decision making. National Environmental Standards will guide decisions that governments take to ensure that industries, businesses and individuals adhere to responsible practices that minimise harm to the environment. These standards should encompass a wide range of issues and serve as a vital framework for controlling pollution, conserving natural resources, and mitigating the impacts of climate change.
The good news is that the Australian government has committed to develop National Environmental Standards to initially cover:
- Matters of National Environmental Significance (MNES)
- Environmental offsets
- Regional planning
- Community engagement and consultation
- First Nations engagement and participation in decision-making
Laws are only effective if they are enforced. The Albanese government has committed to creating an independent agency - Environment Protection Australia (EPA) - to serve as a vigilant watchdog working to ensure that laws and regulations are followed. It will need to be vigorously independent to ensure politics does not interfere with enforcement.
We need to close legal loopholes that favour big business over nature; the EPA’s enforcement activities will be crucial in holding individuals and organisations accountable for their impact on the environment.
The EPA’s responsibilities and jurisdiction should include to:
- Inform and educate stakeholders about the law and their role
- Set and monitor compliance against National Environmental Standards
- Monitor compliance with the law
- Enforce the law
- Encourage higher performance to go beyond regulatory requirements
- Ensure transparency and accountability in its activities by reporting findings and actions to the public
Recovery plans and strategies are pointless unless they are acted on quickly and with proper investment. We need to ensure that the new standards and laws are not only strong, but actively prevent poor environmental decision making through adequate funding and enforcement. Sufficient funding is critical to ensure environmental standards are upheld in the face of powerful financial interests.
What can you do?
The Albanese government has committed to publishing draft legislation later in 2023, to be introduced into Parliament in 2024. We need your help now to ensure the government hears how urgently strong new environment laws are needed to protect our marine species and their habitats.
If you love nature, help save it: