Environment law reform
How do new environmental standards stack up?
Australia’s new environment laws promised strong national environmental standards to help protect nature.
Scroll down for an assessment from environmental lawyers on how well they deliver.
Join us for a free webinar and Q&A
Australia’s new nature standards: what’s in the fine print and what does it mean for nature?
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When
Thursday 3 September
1-2pm AEST
Where
Online via Zoom – RSVP to receive the link.
WHAT
Join legal experts from Environmental Justice Australia and Environmental Defenders Office to unpack what these new standards mean for nature, where the weaknesses lie, and the important decisions still to come.
We’ll also talk through the next opportunities for you to have a say on how Australia’s new nature laws are implemented.
This is a free event and open to the public. Please feel free to share it with your networks.
Thought Australia’s environment law reform wrapped up last year? Think again.
The Albanese Government has now finalised the first four key national environmental standards – rules that will shape how Australia’s new environment laws work in practice.
The devil is so often in the detail, and the newly released nature standards will play a key role in whether Australia’s new laws deliver real protection for nature.
But a standard is only as strong as the rules inside it.
Do Australia's new standards set clear rules for protecting nature, require decision-makers to follow them, and will they deliver real results for threatened wildlife and the places they call home?
Scroll down to find out...
OUR ASSESSMENT
How do the new standards stack up?
Here are the initial impressions of Environmental Justice Australia lawyers on how the Standards for Matters of National Environmental Significance and Offsets stack up:
1. DO THEY PROTECT THREATENED SPECIES AND THEIR HABITAT?
The standards do not provide strong enough protection for threatened species, ecological communities and migratory species – or the habitat they need to survive and recover.
2. DO THEY REQUIRE REAL RESULTS FOR NATURE?
Following the process can be enough – without actually showing the environmental result has been achieved.
3. DO THEY PUT REAL LIMITS ON PAY-TO-DESTROY OFFSETS?
Companies can pay money instead of providing an appropriate offset, without strong enough limits on what can be traded away.
4. DO DECISION MAKERS HAVE TO COMPLY WITH THE RULES, OR JUST CONSIDER THEM?
The rules leave decision-makers significant discretion, rather than consistently binding them to clear environmental requirements.
5. DO THEY MAKE AUSTRALIA'S ENVIRONMENT LAWS STRONGER AND RAISE THE BAR FOR NATURE?
The standards contain significant weaknesses, and their full impact will depend on how they are applied across Australia’s new environment law system.
Scroll down for the detail on each of these tests of success.
TEST 1: A CLOSER LOOK
Do they meaningfully protect threatened species and their habitat?
Our verdict: WEAK. These standards do not provide strong enough protection for threatened species, ecological communities and migratory species – or the habitat they need to survive and recover.
Why it matters
Protecting threatened wildlife means protecting the places they need to live, breed, feed and recover.
The Samuel Review recommended specific and detailed outcomes, particularly for threatened species, migratory species and ecological communities.
While the MNES Standard broadly identifies that habitat should be protected, conserved and restored – this isn’t to the level of specificity required to actually protect these threatened species and ecological communities.
The fine print
The Outcomes and Objectives – the parts of the standard that describe what environmental decisions are meant to achieve – are too broad to provide clear, specific protection.
The objective for threatened species, migratory species, and ecological communities includes that habitat, including critical habitat, is protected, conserved and restored to support survival and recovery of the species. While this is a good start, it is not specific enough to truly ensure enforceable outcomes for these species and communities.
What it means
The standard does not set the strong, specific national protections threatened species and their habitat need to survive and recover.
TEST 2: A CLOSER LOOK
Do they require real results for nature?
Our verdict: FAIL. A major weakness remains which allows following a process to count as delivering the environmental result the standard is meant to achieve.
Why it matters
Following a process isn’t the same as delivering a result for nature.
The Standard contains Outcomes and Objectives, which describe what environmental assessment decisions are meant to achieve for nature.
It also includes Principles, which guide how decisions are made.
But the standard allows meeting the Principles to count as meeting the Outcomes and Objectives.
Think of it as the difference between following the steps and achieving the result.
A decision could follow the required process for considering impacts on koala habitat, for example, without having to demonstrate that the environmental Outcome or Objective (healthy koala habitat) has been achieved.
This also means that the federal government could now make agreements with states and territories to approve projects without actually meeting the Outcomes and Objectives for nature.
The question should ultimately be whether a decision protects the species and the habitat it needs to survive and recover – not simply whether the right process was followed.
The fine print
The key issue is section 7 of the standard, which provides that, by “having regard to” the objectives and outcomes, the decision-maker may be satisfied that a decision is consistent with the standard.
That makes the Outcomes and Objectives much less meaningful: instead of having to demonstrate that the environmental result itself has been achieved, satisfying the Principles can be enough.
What it means
The standard’s headline environmental Outcomes and Objectives do not provide the firm bottom line for nature they appear to provide.
TEST 3: A CLOSER LOOK
Do they put real limits on pay-to-destroy offsets?
Our verdict: FAIL. The new rules allow companies to pay money when appropriate offsets aren’t available, without strong enough limits on when those payments can be used or what environmental damage can be traded away.
Why it matters
Some environmental damage can’t simply be made good somewhere else.
Australia’s new environment laws allow projects that significantly damage nationally protected nature to use environmental offsets to compensate for that harm.
The new system also allows “restoration contributions” – payments into a fund – where genuine offsets are not available.
That creates a serious risk if there are not clear limits on when payments can be used.
Some environmental values are too important, or irreplaceable, to be traded away.
The fine print
The Offsets Standard contains Principles intended to improve the quality of offsets – including requirements around whether an offset is feasible, additional and appropriately matched to the environmental value being damaged (“like-for-like”).
But under the new framework, a proponent can instead elect to make a restoration contribution without meeting those same Offsets Standard principles.
The wider framework also includes regulations, protection statements and a declaration power under section 134AA that are relevant to how restoration contributions are limited and regulated.
Our assessment is that restoration contributions can be used without meeting the same Offsets Standard principles that apply to ordinary offsets, including requirements around feasibility, additionality and like-for-like offsets.
Our assessment is that the framework does not provide strong enough, science-based limits on what environmental damage can be offset or when restoration contribution payments can be used.
What it means
The new system leaves a pathway for environmental damage to be approved in exchange for money, without strong enough safeguards around what damage can be traded away.
TEST 4: A CLOSER LOOK
Do decision-makers have to comply with the rules, or just consider them?
Our verdict: FAIL. The standard leaves decision-makers too much discretion, rather than setting clear environmental rules they must follow.
Why it matters
Small words can make a big difference in law.
Requiring a decision-maker to comply with a rule is very different to requiring them they only to “have regard to” it.
Likewise, requiring a decision-maker to be “satisfied with” something leaves much more room for discretion than setting a clear environmental result that must be achieved.
National Environmental Standards were meant to provide a strong national benchmark for environmental decisions. But if the rules leave too much discretion, they provide a much weaker bottom line for nature.
The fine print
Across these standards and the broader EPBC framework, different legal language determines how much freedom decision-makers retain.
In important places, decision-makers only need to consider particular matters or be satisfied that requirements have been met, rather than being bound by a clear environmental result.
There are also exceptions and alternative pathways that can further weaken how the standards apply.
What it means
These standards do not provide the clear, binding national rules for environmental decisions that were expected from these reforms. Decision-makers retain significant discretion over how the rules are applied.
TEST 5: A CLOSER LOOK
Do they actually make our nature laws stronger and raise the bar for nature?
Our verdict: NOT YET. The standards contain significant weaknesses, and their full impact will depend on how they are applied across Australia’s new environment law system.
Why it matters
National environmental standards were a central promise of Australia's environment law reforms.
They are meant to set a strong national benchmark for decisions affecting nationally protected nature – including decisions made through other governments and regulators under accredited arrangements.
But our assessment has found significant weaknesses in that benchmark: inadequate protection for threatened species and habitat, vague environmental outcomes, the deeming loophole, weak limits on offsets and too much decision-maker discretion.
That raises serious questions about whether the new system will deliver stronger protection for nature in practice.
What happens next really matters.
The government is developing accreditation arrangements and bilateral agreements that could allow states, territories and other regulators to make more decisions under the national environment law framework.
The standards will be important to how those arrangements operate.
With significant weaknesses in the standards themselves, the safeguards built into accreditation and bilateral agreements become even more important.
You can read more about these in this legal explainer.
EJA will be watching closely to see whether these arrangements maintain strong Commonwealth oversight and accountability, and whether they deliver stronger protection for nationally significant nature.
What it means
The standards have not yet demonstrated that they will raise the bar for nature. Their weaknesses create real risks as the government moves to the next stage of implementing the new laws.
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