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Environment and Communications Legislation Committee

BURNETT, Dr Peter, Honorary Associate Professor, Australian National University College of Law

BUTLER, Dr Edward, Member, Tasmanian Independent Science Council [by video link]

EVANS, Dr Megan, Lecturer and Australian Research Council Discovery Early Career Researcher Award Fellow, University of New South Wales

GERSHWIN, Dr Lisa-ann, Member, Tasmanian Independent Science Council [by video link]

KIRKPATRICK, Professor James, Chair, Tasmanian Independent Science Council [by video link]

RICHARDSON, Professor Benjamin, Member, Tasmanian Independent Science Council [by video link]


CHAIR: I understand that information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. Do you have anything to say about the capacity in which you appear?

Prof. Richardson : I am with the Faculty of Law at the University of Tasmania and am a member of the Tasmanian Independent Science Council.

Dr Gershwin : I'm a member of the Tasmanian Independent Science Council, and I'm also the Director of the Australian Marine Stinger Advisory Services.

Prof. Kirkpatrick : I am a distinguished professor at the University of Tasmania and the Chair of the Tasmanian Independent Science Council.

Dr Butler : I am an independent researcher and a member of the Tasmania Independent Science Council.

CHAIR: Thank you. As I've explained to other witnesses, because we have so many people on each panel we've asked you to table your opening statements. They will be incorporated in the Hansard, so they will form part of the evidence that the committee will draw on in compiling our report, but we will go to questions.

The documents read as follows—


Opening Statement: Inquiry into the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021

The Tasmanian Independent Science Council (TISC), composed of scientists and related professionals who provide independent, impartial advice, focusing on policy reforms of significant Tasmanian relevance, welcomes the opportunity to participate in this Senate inquiry. The EPBCA is significant to Tasmania because of its extensive World Heritage area (25% of the State) and many other nationally significant environmental places.

Whilst the TISC supports the Bill's provisions for generating national environmental standards (NES) and the creation of an Environment Assurance Commissioner (EAC), the Bill omits some of the recommendations we support in the Final Report of the Independent Review of the EPBC Act (the Samuel Review).

The proposed NES: our specific concerns include:

The decision-making process gives the Minister too much discretion on a case-by- case basis. Discretion is valuable, but should be tied to a stronger formulation of principles of the EPBCA.

The Bill envisions that the Minister would have the power to make and apply the NES in a variety of situations, as determined by the Minister on a case-by-case basis, as well the power to act inconsistently with an NES if the Minister is satisfied that it is in the "public interest" to act so and provided reasons are publicly available. Any such "public interests" test should be explicitly tied to a clearer statement of the objects and principles of the EPBCA.

The Bill does not prescribe any time frame for the NES to be implemented; this impedes accountability.

The proposed EAC should be useful for monitoring and/or auditing the implementation of any bilateral intergovernmental agreements under the EPBCA. However, our concerns in the current scheme envisioned in the Bill include:

EAC's functions should extend to overseeing individual decisions to approve projects, which are where the detailed application of environmental standards and protections materialises. The Samuel Review recommended that the Commissioner should have the ability to audit all arrangements under the EPBCA.

The Bill risks compromising the efficacy and independence of the EAC by the requirement that the EAC's work plan have regard to the written expectations of the Minister. The Bill lacks assurance that the EAC's role would be independent, without actual or perceived political interference.

If the EAC is to be an effective watchdog, the Bill must ensure that the Commissioner has the independence, powers and resources to investigate and influence proposed development projects.

The introduction of the EAC must be accompanied by a new intergovernmental environmental agreement that addresses the roles and responsibilities of all tiers of government.

The Bill inappropriately cherry picks from the recommendations of the Samuel Review, but the government has failed to respond to all the 38 recommendations in the Samuel Review, and that of public submissions to the Review, and most of Samuel's recommendations are omitted from the Bill. In particular, the Bill:

Lacks measures for facilitating ecological restoration - an important action for reversing environmental degradation in Australia.

Does not address the Samuel Review's recommendation to remove or modify special treatment of forestry operations (under the Regional Forests Agreements).

Fails to address how bioregional and landscape planning can be reinvigorated, as recommended by the Samuel Review, to help stop the decline in biodiversity (both terrestrial and marine) and to address cumulative environmental impacts (eg invasive species, intensive aquaculture, land clearing).

Fails to establish greatly improved data and information systems to ensure proper implementation and oversight of the EPBC Act.

Does not provide for establishment of an independent federal Environment Protection Authority (EPA), with responsibility for administering the Commonwealth's environmental assessment and approval system, and as recommended by others, such as the Australian Panel of Experts on Environmental Law, A federal EPA should be tasked with ensuring enforcement and compliance under the Act - a function that the EAC would audit.

Does not provide for an Indigenous Engagement and Participation Committee to advise the Minister on Indigenous peoples' consultation and participation in decision-making under the EPBCA.

Yours sincerely

Professor Benjamin J. Richardson, Professor of Environmental Law, University of Tasmania

On behalf of the Tasmanian Independent Science Council


About Peter Burnett

I was a long-serving senior executive with the Federal Environment Department, where was responsible for the administration and reform of the EPBC Act between 2007 and 2012.

My subsequent research has focused on national frameworks for environmental law and policy in Australia, including those associated with the Act.

I was a member of the advisory group established by Professor Samuel in the latter part of his Independent Review of the EPBC Act.

Key Points from Submission

The context for this Bill is findings by Professor Samuel that:

Australia's natural environment and iconic places are in an overall state of decline and are under increasing threat

the EPBC Act is outdated and requires fundamental reform; and

that Australians do not trust that the EPBC Act is delivering for the environment, for business or for the community, ie. there is a deficit of trust

Against that backdrop, my fundamental criticism of the Standards and Assurance Bill represents a piecemeal approach to reform, one that responds to a deficit of trust with a proposal that the Parliament repose additional trust in the Executive; and without informing the public of the Government's response to the Samuel Review more generally

As to the provisions of the Bill, and National Environmental Standards specifically, I draw the attention of the Committee to proposed s 65H in the Bill

The effect of this section is that standards are not an objective and mandatory benchmark but a requirement on decision-makers to form a subjective evaluation about compliance with the Standards, an evaluation that may take into account, and thus depend upon, various policies, plans, programs or funding of Commonwealth or State governments

In addition, the Government has now released an initial set of standards, standards that reflect the existing EPBC Act

A major problem with the existing Act is that its requirements either relate to process or are very weak as to outcomes: there is in effect no 'bottom line' in the Act, ie few if any standards in practice ⁃ provided a minister follows proper legal process, they can take almost any decision they wish

In effect the Standards are additional 'mandatory considerations' only and thus are Standards in name only

My respectful submission is that Committee might conclude that Bill should not go forward in absence of a comprehensive response to Samuel Review and a full set of outcome-based Standards based on Professor Samuel's recommendations and subject to an objective statutory test

As to the Bill more generally, I submit that various provisions of the bill represent an inappropriate overriding of other legislation or delegation of legislative power

I am now aware that the Scrutiny of Bills Committee has also raised a number of these issues and considered the minister's responses in Digest 6/21 of 21 April 2021

These concerns include

S65C(3) - no disallowance of the first standards

The scope of application of the Standards should be a matter for primary legislation, not delegated to minister by legislative instrument

The ability of the minister to make standards incorporating documents as amended from time to time or documents that do not yet exist raises the possibility of de facto amendments to standards without legislative scrutiny

As to the proposed position of Environment Assurance Commissioner, I am broadly supportive but submit that the Bill should be strengthened to maintain a clear separation between this independent statutory office and the Executive Government.


Thank you for this opportunity to provide evidence to the Senate Environment and Communications Legislation Committee Inquiry into the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 (hereafter "the Bill").

I am a Lecturer and Australian Research Council DECRA Fellow based at the University of New South Wales, Canberra. I have specific expertise in the design, implementation, and evaluation of the Australian Government's Environmental Offsets Policy under the EPBC Act 1999. I was one of five independent academic experts invited to participate in Professor Graeme Samuel AC's Consultative Group as part of the Independent Review of the EPBC Act in 2020.

Australia's environmental laws need reform, but this Bill is a backward step.

Australia is a high income, developed country with an astonishing wealth of environmental and values, yet we are among the world leaders in irreversibly eroding this natural capital. Our world is changing: businesses and financial institutions are increasingly seeking to account for and mitigate climate and biodiversity risks by shifting to more sustainable practices, and investing in nature1. To facilitate this transformation, government must create an effective enabling environment2: clear and coherent policy settings, regulations that incentive nature-positive activities, and investment in planning, data, and monitoring and evaluation. This Bill, unfortunately, does none of these things - in fact, it introduces additional provisions and scope for discretion that will further weaken the EPBC Act, which is already ineffective and inefficient. The Samuel Review emphasised that a "quantum shift" forward is needed to modernise the Act, but this Bill will further entrench Australia as an environmental laggard.

The draft National Environmental Standards are not "strong" or "robust" - they are incomplete, and largely replicate the existing failures of EPBC Act.

National Environmental Standards were the centrepiece of Professor Samuel's "highly interconnected suite of recommendations". This Bill does what Professor Samuel specifically warned against, and "cherry picks" just some of the Standards provided in the Final Report. Standards for Indigenous participation and engagement, Compliance and Enforcement, Data and Information Systems, as well as environmental offsets, planning, and restoration and recovery are all notably and inexplicably absent.

The National Environmental Standards drafted by Government merely replicate, often word-for-word, existing provisions of the EPBC Act. There is absolutely no benefit to this exercise. By simply duplicate the Act in a set of additional statutory instruments, the Government has created additional "green tape" - the opposite of "streamlining". The Government's National Environmental Standards are complex, verbose (e.g "not inconsistent"), and focus on prescribing processes (e.g "take into account") rather than promoting environmental outcomes (e.g "must deliver [outcome]"). They allow for significant discretion, which will promote inconsistency in application - a problem that will likely be exacerbated eightfold if bilateral approval agreements are entered into with the States and Territories without genuinely addressing the full package of recommendations outlined in the Samuel review.

The Bill introduces even more scope for discretion in decision making under the EPBC Act - e.g the Minister can make a decision that is inconsistent with a National Environmental Standard if the Minister deems it "in the public interest" (s 64H(7)). "Public interest" is not defined. The Explanatory Memorandum introduces the concept of "balancing mechanisms", which are simply offsets in everything other than name, but do not comply with the Government's existing Environmental Offsets Policy (2012). The Bill unnecessarily contains provisions for the first set of Standards tabled by Government to not be disallowable (s 65C(3)), removing the ability for Parliament to properly scrutinise the Standards.

The proposed Environment Assurance Commissioner (EAC) is a "toothless tiger".

The Bill is written such that the EAC's independence and capacity to function effectively could easily be undermined. The Bill does not permit the EAC to monitor or audit a single decision, but rather "must be more general". This seriously limits the capacity for the EAC to work independently (they would be reliant on reports from other jurisdictions) and at a level of detail that would be able to determine whether Standards are being met. The Bill provides for the EAC "delegate all or any of the Commissioner's functions or powers" to the Department Secretary or APS employee. Conceivably, an appointed Environment Assurance Commissioner could delate all their work (other than the workplan and Ministerial reporting) to the APS. The EAC must also request resources from the Secretary of the Department. In practice, the EAC would hardly be independent, effective or efficient.

The most likely effect of this Bill, if passed, is that risks to environmental and Heritage matters under the EPBC Act will simply build and worsen - largely undetected.

In absence of more holistic reform and investment, I anticipate that environmental risks will simply build in the system and increasingly slip through the cracks. An Environment Assurance Commissioner can only audit what is present in the system, not what hasn't been captured. Discretion, ambiguity and duplication promote inconsistencies and inefficiencies.

I submit to the Committee that the Bill should be rejected in its current form, and instead a Bill is drafted that encompasses the full first tranche of reform outlined in the Final Report of Professor Samuel's Independent Review of the EPBC Act. I also recommend that the Government provide a full response to Professor Samuel's Final Report, and clearly communicate their plan for environmental law reform beyond the "first phase" to the Australian Parliament and Australian public.

1 Evans, M.C., 2021. Taking care of business: the private sector is waking up to nature's value. The Conversation

2 Evans, M., 2020. The magic of the market won't help the environment unless government also takes responsibility. The Guardian

Senator HANSON-YOUNG: First of all, I'm just wondering whether any of you have, in the last few short days, been able to bring yourselves up to speed with the standards that have been released by the government.

Dr Burnett : Yes, they were released late last week and I've had the opportunity to look at them.

Senator HANSON-YOUNG: Thank you. What's your view of these standards? Do they implement the recommendations from the Samuel review, and are they adequate in making sure we reverse the decline in biodiversity in this country?

Dr Burnett : No, they don't implement the recommendations of the review. They reflect certain provisions of the existing act, and my concern with them is that, de facto, they are not standards at all; they are a distillation of requirements taken from the legislation. Some of those requirements are what lawyers would call mandatory considerations—in other words, things that decision-makers must take into account in making their decision; some of them reflect prohibitions in the act—for example, a prohibition on approving anything that would be inconsistent with some of the relevant international conventions; and some of them reflect process requirements, such as undertaking an adequate environmental assessment involving public consultation et cetera. But overall, because there's a fundamental problem with the existing act in that it doesn't really have any substantial outcome based standards, in my view these standards are standards in name only. They don't actually impose any outcome based requirements.

Senator HANSON-YOUNG: Dr Evans, have you got anything to add to that?

Dr Evans : Yes, Dr Burnett's view aligns with my own. I think the interesting thing is about what is a standard and what is an outcomes based standard. Because the act itself has so much wiggle room and is so complex, it's easy to say that a standard aligns with the existing settings of the legislation, but they can mean very, very different things. The standards that were put forward by Professor Samuel align with the existing legislative settings but try to remove some of that ambiguity and to tighten some of the language to be more specific. Rather than just say protection of a matter, we're being more specific—for example, no more clearance of habitat for critically threatened species. That's a much more specific term than to just say ‘protection’. I believe the intent of the standards was to set something that's within the existing legislative setting but is much more clear, concise and specific. But the standards that have been put out by government merely repeat the existing provisions in the act. I don't believe they provide any material benefit because they essentially just duplicate what's already in the act. Indeed, you need to refer back to the act in order to be able to do anything with the standard anyway. I kind of see the standards being put out by government as a duplication.

Senator HANSON-YOUNG: Do they in any way get to an outcomes based assessment of what's required? Are they outcomes based at all?

Dr Evans : I think it's sometimes difficult to know what an outcomes based standard is. I'll give you an example. My interest is in environmental outcomes, and I'm sure a lot of us are interested. We want to know that the area of habitat or the number of individuals in a population might be not declining or maybe even increasing. We want an outcome of number of individuals or an area of habitat. That's an outcome that I think is measurable, specific and clear. But the existing EPBC Act doesn't really compel that kind of outcome to be delivered because a condition is often placed—for example, develop an offset management plan. You can develop an offset management plan, and even put up some nest boxes to try to mitigate an impact, but if those nest boxes don't actually end up with birds nesting in them, you don't get an environmental outcome but you still end up being compliant with a legal condition. There's a real distinction between a process or an input versus an environmental outcome. I believe it's better and more efficient to focus on the actual environmental outcome.

Senator HANSON-YOUNG: Dr Burnett you said that these standards are in name only. One is simply a duplication of what's already in the act referring back to itself. What's the purpose of it then? Is it just window dressing?

Dr Burnett : I think you'd have to ask the government that. It doesn't seem to me to advance the cause of getting better environmental outcomes. In fact, I would argue that it takes it backwards. Look at proposed clause 65H of the bill. In telling decision makers how to apply the standards, it actually gives them the discretion. It makes it a subjective judgement not an objective test, and then it gives them the discretion to take into account other things such as government policies, programs and funding decisions. To give you a hypothetical example, if you had a standard that said that, for historic heritage, you should not damage the heritage fabric of the place that section would allow a decision maker to say: ‘Yes, I am going to approve an action that damages the fabric of the heritage place. I know that's prima facie in breach of the standard, but because the relevant government has put $100,000 on the table for better visitor services at the site, I conclude that on balance there's no breach of the standard.’

Senator HANSON-YOUNG: Or the government has a gas led recovery and this is for a pipeline.

Dr Burnett : Whatever it might be, it refers to policies, programs and funding decisions, so that's a very wide range of things, but it makes a totally subjective matter as to whether there's a breach or not.

Senator HANSON-YOUNG: That's effectively a work around.

Dr Burnett : Yes, it's not really a standard at all. It's a set of mandatory considerations. Yes, the decision-maker has to address these things, but then they have a very large degree of discretion as to where they land in terms of their final decision, and they can decide that a funding decision, for example, outweighs what would otherwise be a breach of the standards.

Senator HANSON-YOUNG: And, of course, there's no standard for compliance or monitoring even. So with such a large amount of discretion for the decision-maker, maybe on the balance of probabilities at that moment the decision-maker does decide that it's okay for that project to go ahead because there's money on the table for that area of the community. But there is no standard by which that will be monitored or even enforced. The money might not ever be spent.

Dr Burnett : No. That's true. At the time you may not know. There are two mechanisms to supervise those sorts of decisions. Firstly, the bill amends the minister's powers to terminate an accreditation under an approvals bilateral, so the federal minister could take the view that an accredited state minister was not complying with the standards in her subjective judgement. It's not an objective test. Alternatively, the proposed assurance commissioner could produce a report saying, 'I've been looking at these decisions and, in my view, the decisions by the accredited decision-maker do not comply with the standards.' But it's very hard to imagine such a conclusion being reached, because it's so much a subjective matter for the accredited decision-maker. If, in that example I gave, the accredited decision-maker says, 'I'm going to allow the damage to the heritage building because of the money that's been put on the table,' the act says that is a proper decision. It's hard to conceive of a situation where the watchdog, the assurance commissioner, is going to be able to reach a finding that there's a breach, unless the accredited decision-maker is just acting in flagrant disregard, totally ignoring what's in the standards, and then you might have grounds for saying, 'They're in breach.'

Senator HANSON-YOUNG: I'd like to ask the professors and the witnesses from the Tasmanian Independent Science Council if they are up to speed with the situation of bumblebees in Tasmania?

Prof. Kirkpatrick : I'm not.

Dr Gershwin : I'm not either.

Prof. Kirkpatrick : I know that bumblebees are distributed right throughout the state, including in the heart of the wilderness areas in the south-west, because I was one of the co-authors on a paper on its early distribution. They're very well established in the state and the work that's been done on their ecology indicates that they compete with swift parrots and compete with native invertebrates for pollen resources.

Senator HANSON-YOUNG: Is there anything in these new laws that the government wants to implement that is going to make it better for native species in Tasmania, given the situation with bumblebees?

Prof. Kirkpatrick : It's hard to say. It seems to me—

Senator HANSON-YOUNG: You may laugh, Senator Van, but actually it's a very serious matter.

Prof. Kirkpatrick : It seems to me that the legislation has been set up to allow development, rather than to protect anything.

Senator HANSON-YOUNG: Okay. I might ask you to take on notice whether you think that there is anything that can be done to strengthen this piece of legislation, given the situation down there in Tasmania. In relation to consultation, were all your organisations involved in the consultation run by Professor Samuel?

Dr Evans : I was part of the consultative group, yes.

Dr Burnett : I was too. We were both involved in an individual capacity. We're not part of any group.

Senator HANSON-YOUNG: Tasmanian science council, were you involved?

Prof. Kirkpatrick : We put in a submission to Samuel's inquiry, yes.

Senator HANSON-YOUNG: Dr Evans, you were on the official consultative committee. Are you surprised that, after this lengthy process and the enormous amount of work that was put into it, what is being presented to the parliament doesn't reflect the agreements that were made around that table or the advice that was given to government from the experts?

Dr Evans : Not surprised, just disappointed. There was a lot of work involved. There were a lot of late nights and there was a lot of goodwill and volunteer effort from many individuals and organisations, as it was a highly time constrained process, particularly in the consultative phase. The standards that were released in the final report of the Samuel review weren't perfect but they reflected, at least to some degree, the discussion as part of that consultative group, whereas we don't know what the process was that went into the development of the standards that were released by government last week. It is disappointing to see that work occur with not really any information as to why the standards that have been released by government don't match or align with what the Samuel review recommended.

Senator HANSON-YOUNG: Is that your view as well, Dr Burnett? Do you have anything extra to add?

Dr Burnett : Yes, Senator. I was surprised and disappointed. Like Dr Evans, I felt there was a huge amount of volunteer effort put in and very successful collaboration between a lot of the stakeholders, so I was surprised that the government didn't see fit to take that as its starting point, rather than going back to the act and to versions of the standards that have been around for a number of years.

Senator HANSON-YOUNG: I'm wondering about the issues in relation to offsets. Dr Evans, have you looked into that issue much? Obviously, one of the recommendations of Professor Samuel's report was that the offset mechanism be reviewed; it wasn't delivering environmental protections or outcomes as you described before. If the offset mechanism stays there the way it is and is written into state bilateral agreements, is that a risk?

Dr Evans : Yes. I've been working on offsets for about 10 years now. I was involved in helping to develop the EPBC environmental offsets policy that came out in 2012. With that policy there was meant to be a 12-month review and then a five-year review. Neither of those reviews occurred. I and colleagues who were involved in that policy development have been working over the years to assist the department in its interpretation and application of that policy. Part of my PhD research looked at that specifically, and I provided a report to the department a few years ago about my recommendations as to how that policy could be improved in its interpretation and application.

This bill and the standards don't address any of the issues that have been identified over the years with offsets; indeed, I believe the bill introduces even more scope for offsets, in everything other than name, to be introduced. For example, Dr Burnett mentioned subclause 65H(2), I believe, where balancing mechanisms can be incorporated or considered by a decision-maker—not just the federal minister but any decision-maker. That's an offset. It's just another way of saying it's an offset. It means that there's an additional entry point in which some kind of compensation can be considered in the context of an approval decision. My work has shown that there are already many points in the decision pathway where impacts to threatened species, ecological communities and other MNES aren't being effectively mitigated. Even considering ecologically sustainable development, at the point of a decision, assessment officers have to factor in environmental, social and economic considerations. And I've found that, for the most threatened matters, consideration of that interpretation of ecologically sustainable development at that point in time actually further endangers those most highly threatened matters. So it's really disappointing that this bill and the associated standards have actually further weakened and opened up even more scope for offsets and offset-like things to be factored into decisions that would ultimately further detriment matters of national environment significance.

CHAIR: Senator Hanson-Young, I'd like to give the call to Senator Green—so final question.

Senator HANSON-YOUNG: That's okay. Are you across the report that was written by the Auditor-General's office in relation to the failure of the department to know what these offsets are and the outcomes that are being delivered?

Dr Evans : Yes.

Senator HANSON-YOUNG: So you wouldn't have been surprised by those findings, then?

Dr Evans : No, the ANAO audit report aligned with what my research has identified—for example, the lack of a public offset register, which has been promised for close to 10 years. We still don't have one.

Senator HANSON-YOUNG: Could take on notice what would be the most important things to have in this bill to ensure that dubious offsets could not be just ticked off by the departments, either state or federal?

Dr Evans : Yes.

Senator HANSON-YOUNG: Thank you.

Senator GREEN: I appreciate there's a few different kinds of expertise on the panel, and I'll try to cover off something that relates to all of your submissions. I should say that Senator Hanson-Young has covered a little bit of what I was going to ask you, so I'll try not to double up. I wondered whether you had any comments or views around Professor Samuel's report, which also included consultation, standards and improvement of the way that the system is working in terms of Indigenous communities and the need to overhaul Indigenous cultural heritage protection. I apologise if you've already covered that off with Senator Hanson-Young, but it seems to me that that has been left out of the rehashed standards.

Dr Burnett : I can perhaps comment on that briefly, because I was in the department for a long time and had some experience in dealing with the Indigenous advisory committee which exists under the current arrangements. Professor Samuel concluded that the current arrangements were significantly inadequate, that they needed to be strengthened a great deal, that there needed to be a lot more attention paid to Indigenous knowledge and so on. I think this is something that is long, long overdue and has been welcomed by most stakeholders. Yes, it hasn't had a lot of attention, but I think it's something that's very important.

Dr Butler : Could I comment on that too, please?

Senator GREEN: Of course.

Dr Butler : In one of my previous positions I worked with a Groote Eylandt community, and I think it's a serious oversight in this legislation that it hasn't picked up on that, because there is a real win-win with conventional science coupled with Indigenous ecological knowledge. The sea country around Groote Eylandt is benefitting from the joint research being done by conventional scientists from government institutions and by the elders of the Anindilyakwa Land Council. So I would say, just from my limited experience in that area, that is certainly a significant oversight in this legislation.

Senator GREEN: Thank you for that contribution. The standards that have been released by the government essentially aren't in line with the Samuel review, based on the evidence you have already given, and they don't seem to be improving or strengthening environmental protections. We know from the Samuel review and from other reports that the environment is in a state of decline, but I just wondered whether, based on your field of expertise, you could comment on some examples of species or particular areas that are really under threat now and need some sort of urgent response. What I think is happening is this is being proposed as the first step in a longer reform, but what the Samuel review was proposing was to actually do it all in one go. So I think that, as senators on this committee, and someone who will vote on the bill, we need to understand what the risk is of not doing it all at once?

Prof. Richardson : I think we can look at the Tasmanian experience.

Senator GREEN: I think there's lots of people going to jump in there, so that'd be great.

Prof. Richardson : I invite my colleague Lisa-ann Gershwin to speak about the Tasmanian experience in its marine environment, which is a good illustration of that danger that we face. Lisa?

Dr Gershwin : Thank you, Ben. I'm just going to read a very brief statement. I apologise, but I'm a little bit nervous—

Senator GREEN: Don't be nervous.

Dr Gershwin : so I've actually put it where I can read it. I'm happy to submit it if you like.

Dear Senators, thank you for allowing me to speak today. I will be quite brief, less than five minutes. I just want to take a moment to bring it back around to what we are debating, what we are weakening rather than strengthening and why it matters. The EPBC Act is failing many iconic land and aquatic species, and yet we dither. Since the introduction of the EPBC Act in 1999, there have been at least five well-documented cases of vertebrate extinctions, and we don't even track the other 97 per cent of species that is the invertebrates, so God only knows about them. And God only knows how many more there are teetering on the brink. And yet we dither.

Let me tell you a brief story about my little dolphin. Several colleagues and I named and classified this new species in 2011. You have probably never heard of the so-called Burrunan dolphin, with a scientific name Tursiops australis, but I am blushingly proud to be one of is discoverers. It is south-eastern Australia's very own endemic dolphin, found nowhere else in the world. It is the common intra dolphin in two capital cities, Melbourne and Hobart. If you see a dolphin, it's probably this one, but it's three resident populations are all in great peril.

In Melbourne's Port Phillip Bay, it is plagued by urban run-off, disease, fluctuations in food, boat strikes and heavy metal poisoning. In fact, research in 2014 found it has the second-highest mercury content of all the dolphin species studied. Chronic exposure is thought to suppress immunity and interfere with neurological pathways. Just this year, Eastern Victoria's Gippsland Lakes lost 20 per cent of its population from a skin disease that is similar to third-degree burns. And almost every year it is in competition for food against increasing swarms of jellyfish. Jellyfish eat the eggs and larvae of small fish, such as pilchards, so then the dolphins have nothing to hunt.

In Hobart's Storm Bay, these dolphins used to be common. This is the species in the iconic photo for Pennicott adventure tours. That photo is one of the first things that visitors see at the Hobart airport, but there's not a single study on the species here. We know nothing about it, except that locals have seen it less often in the last few years. In Tasmania, by far its biggest threat is salmon farming. Salmon farming is, in practice, largely exempt from the EPBC Act simply because the state government looks the other way. Like Victoria, heavy metals are a problem here too. In the 1970s, the Derwent held the shocking title of being the world's most polluted estuary because of the heavy metals. Today, they are being resuspended by an unfortunate process of water chemistry that unbinds the molecules from sediments when the dissolved oxygen is very low—the inevitable condition created by salmon farming.

But make no mistake, the biggest problem for dolphins is noise. Salmon farming has turned quiet bays into unrelentingly noisy industrial sites, where big ships and heavy machinery are operating at all hours. It's creating a serious mental health crisis for the human locals, so imagine the effect on dolphins that use echolocation or sound frequencies in all aspects of their life, from finding food to social cohesion. On top of that deafening thrum, the salmon industry sets off up to about 40,000 underwater cracker bombs a year to deter seals. These explosives shatter bones, rupture ear drums and herniate brain tissue, so imagine what they do to the echo location of dolphins.

In Victoria, the threats this dolphin faces are largely environmental: disease, climate, pollution. But in Tasmania, what should be its refuge, it faces completely manageable human threats—ship noise 24/7, machinery noise 24/7 and 40,000 underwater seal bombs a year. This little dolphin is listed as endangered under the Victorian Flora and Fauna Guarantee Act and is currently being assessed as critically endangered, but it has yet to be listed under national or international codes because there's almost no funding for the required research. It's a vicious circle. It has little protection in Tasmania and with weaker legislation it probably won't get it. Yet, still, we dither. Here's the problem: my dolphin, our dolphin, is collateral damage—

Senator GREEN: Dr Gershwin, I'm just going to bring you back to the legislation that we're talking about today.

Dr Gershwin : Here is the problem. My dolphin, our dolphin, is collateral damage of a state government decision to grow the salmon industry at all costs. It is untenable to put the state government, which is responsible for growth, in oversight of the casualties of that growth. This is the fox guarding the hen house. Oversight, by its very definition, should be above not in. You alone have the power for positive change, so that we don't dither.

In closing, I just want to quote the American naturalist, William Beebe:

The beauty and genius of a work of art may be reconceived, though its first material expression be destroyed; a vanished harmony may yet again inspire the composer, but when the last individual of a race of living things breathes no more, another heaven and another earth must pass before such a one can be again.

On the behalf of the races of living beings, who have no voice, my little dolphin and so many more, I implore you to strengthen, not weaken, the EPBC Act. Thank you.

Senator GREEN: That's quite a powerful contribution and I want to thank you for that. If anyone else on the panel could speak to that need for urgency rather than incremental reform—urgency to get the whole package or suite of reforms progressed rather than going back to this 2014 reset—that would be helpful.

Dr Evans : We've been wanting to do something better with the EPBC Act for 20 years. First of all, I don't believe this bill represents an incremental step forward. I think it represents a step backward, largely due to the additional provisions that have been inserted into the bill that provide additional discretion in interpretation of the bill—for example, the public interest component and the balancing provisions component. There's already way too much discretion within the interpretation of the act, so putting even more scope for discretion takes this a step backward rather than an incremental step forward.

On the point of the whole package rather than just one step, I don't have confidence that there will be incremental changes beyond this point because history has indicated that these policy changes or these policy windows only open at the statutory review time frames. My experience with the environmental offsets policy suggests that even if there's a review promised in policy it doesn't happen. The only thing that compels change is a statutory review period; this is why we're here. The policy window is open now for change and it makes sense to me that change happens now rather than the promise of it occurring later, outside any kind of statutory review period.

Finally: Professor Samuel put this package forward as an interconnected suite of recommendations. These two cherrypicked components don't actually work in absence of that broader package. So I believe that a bill does need to be put forward which actually deals with all of this in one hit. I don't see any sense in this incremental step, which isn't actually a step forward at all. I think that if this bill passes it will simply create even more uncertainty, more discretion and more inconsistency, and that's not going to help businesses, the economy or the environment.

Senator GREEN: Thanks. Chair, I will leave it there because I'm conscious of time.

CHAIR: Terrific. Thank you for your evidence to the committee today—your written submissions, your opening statements and evidence today. If you have agreed to take anything on notice, would you please come back to the committee by 19 May; that will facilitate our writing and consideration of the report. Thank you very much.

Dr Evans : Thank you, Chair.

Dr Burnett : Thank you, Senator.