A bill introduced to parliament this week, if passed, would limit the government's power to reconsider certain environment approvals when an activity is harming the environment.
Authors
- Phillipa C. McCormack
Future Making Fellow, Environment Institute, University of Adelaide
- Justine Bell-James
Professor, TC Beirne School of Law, The University of Queensland
It fulfils Prime Minister Anthony Albanese's promise last month to introduce new laws to allow salmon farming to continue in Tasmania's Macquarie Harbour. This salmon farming is currently mooted for reconsideration.
There's no doubt Australia's nature laws need reform. The latest review found "Australians do not trust that the EPBC Act is delivering for the environment, for business or for the community".
But stopping the government from reconsidering a past decision is no way to fix these flaws. Reconsidering decisions is necessary if new evidence shows the activity is causing much more harm to nature, or a different kind of harm, than anticipated.
Salmon farming in Macquarie Harbour
Salmon have been farmed in Macquarie Harbour for almost 40 years , but activity has increased over the past decade.
In 2012, Tasmania's Department of Primary Industries sought approval to expand farming in the harbour, despite possible impacts on threatened species and the Tasmanian Wilderness World Heritage Area .
But then-Environment Minister, Tony Bourke, declared no further consideration was needed and the action could proceed , because the proposal was not " a controlled action ". Under the Act, a controlled action is any activity likely to impact on a matter of national environmental significance, such as a threatened species. A project or development deemed a controlled action then requires approval from the environment minister.
However, Bourke's decision was subject to conditions - most importantly, to ensure no significant impacts to the Maugean skate.
In late 2023, Environment Minister Tanya Plibersek received a series of requests to reconsider Bourke's 2012 decision.
New evidence comes to light
The power to request a reconsideration is available to anyone. If substantial new information justifies it, the minister may revoke the original decision and make a new one.
In the Macquarie Harbour case, these reconsideration requests relied on scientific studies completed after 2012. One highlighted the skate's vulnerability to changing water conditions . Another released last month showed a strong correlation between more intense salmon farming and increased extinction risk for the skate.
Plibersek has not made a decision yet. However, documents her office released under Freedom of Information laws show new evidence. This evidence supports a declaration that salmon farming in Macquarie Harbour should be reconsidered. That could trigger a full review of salmon farming in the Harbour.
However, the bill Labor has introduced would strip the minister's powers to reconsider the earlier decision.
What does the new bill propose?
On Monday a government spokesperson said :
This bill is very specific - it's a minor change, with extremely strict criteria - focused on giving Tasmanian workers certainty while government investments protect the Maugean Skate. The existing laws apply to everything else, including all new proposals for coal, gas, and land clearing.
But we disagree. The bill describes the circumstances in which the minister can reconsider a decision. These are cases (such as Macquarie Harbour) where an activity is allowed to proceed without full assessment and approval, in a "particular manner". The "particular manner" must include complying with a state or territory management arrangement. For example, the salmon farmers have to comply with a Tasmanian government plan for Macquarie Harbour . Finally, these activities must be currently underway, and ongoing in that way, for at least five years.
It is not uncommon for "particular manner" decisions to require compliance with state or territory management arrangements. So the new legislation will catch more than just the Macquarie Harbour project in the "net".
For instance, our quick search of the EPBC Act portal revealed a similar particular manner decision . This means that, after five years of operation, this second decision will also be immune from challenge.
There would be more where that came from. The bill will not only protect salmon farming in Macquarie Harbour.
What's more, reconsideration powers have been used sparingly - there seems no reason to limit their use further. A search of the EPBC Act public portal reveals only 52 reconsideration requests since the Act began, averaging just two a year. Many of these requests were made by proponents, disgruntled with a "controlled action" decision made in relation to their own projects.
One bad bill after another
This may sound familiar, because Labor's bill is similar to Liberal Senator Richard Colbeck's private bill proposed in December, which also concerned protecting salmon farming jobs in Macquarie Harbour.
The Senate's Environment and Communications Legislation Committee made a single recommendation on that bill: that it not be passed.
The majority report (from Labor, Greens and Independent senators) provided sensible reasons for recommending the bill be abandoned. It noted the power to request a reconsideration already has " appropriate safeguards ".
Furthermore, these "safeguards strike an appropriate balance by providing industry with confidence and certainty that a decision made will not be easily reversed, while allowing decisions to be reconsidered should new and significant information relating to the decision arise".
Just four months later, these remain compelling reasons for maintaining the power to reconsider decisions.
We don't have time to go backwards
This amendment will not achieve the comprehensive reforms the EPBC Act needs. In fact, it will actively undermine these goals. It has been rushed through after years of effort to improve nature laws, on the eve of an election, in a marginal electorate, and has been put to Parliament on the day of a budget lockup.
Despite removing this scrutiny, the bill is unlikely to resolve the controversy in Macquarie Harbour.
Phillipa McCormack receives funding from the Australian Research Council, the National Environmental Science Program, Natural Hazards Research Australia, Green Adelaide and the ACT Government. She is a member of the National Environmental Law Association and an affiliated member of the Centre for Marine Socioecology.
Justine Bell-James receives funding from the Australian Research Council, the Queensland Government, and the National Environmental Science Program. She is a Director of the National Environmental Law Association and a member of the Wentworth Group of Concerned Scientists.
