Australia’s Inconvenient Truth: Nature Positive Bill is Flawed!

Beware the equivalence of public service with the legislative potential to become a ‘Stasi” unit.  This piece is somewhat legalistic, and as Shakespeare wrote in Henry VI:

“The first thing to do is kill all the lawyers…”

William Shakesphere, Henry VI

Well, in this case, one might agree as it was Commonwealth lawyers who drafted the Bill but on drafting instructions from the Department of the Environment.  You have to ask in whose interests they were drafting and where the scrutiny of the Parliament has been if indeed, they are elected to look after the interests of all Australians. 

It is clear that special interest groups, including environmental bureaucrats, benefit from this Bill—no one else.

Protecting the environment is sensible. But the balance between draconian measures and the interests of individuals to protect themselves against heavy-handed and potential environmental ideologies that are not accountable is important if we are to call ourselves a ‘representative democracy. ‘

The Nature Positive (Environment Protection Australia) Bill 2024 sounds impressive.  It was introduced into the House of Representatives on 19 May 2024.

But here is what it actually does:

1. It will establish a Commonwealth Environmental Protection Australia to commence on 1 July 2025.
2. The Commonwealth EPA’s stated object is to support the delivery of accountable, efficient, outcomes-focused, and transparent environmental regulatory decision-making. The Bill set its own benchmark, but as will be noted, it fails.
3. The Bill creates the position of the CEO of the EPA.
4. The CEO confers functions on the holder of this office.  These are the responsibilities of nine pieces of Commonwealth legislation, including the EPBC Act, which is under review.  As this is the Commonwealth’s major environmental legislation, it is quite impossible to put the full importance of the role of the CEO of the EPA under full import.  There is simply no context. 
5. The CEO has to advise the Minister in the Minister’s exercise of Ministerial functions or powers to make recommendations to improve regulations and other powers provided by the Rules.  The Bill authorises the making of Rules as a Legislative Instrument under the Legislation Act 2003. These Rules have not been disclosed.  There is no transparency here.
6. The Bill states, “The CEO has discretion in the performance or exercise of the CEO’s functions or powers and is not subject to direction by any person in relation to the performance or exercise of those functions or powers.”  The Commonwealth Parliament is setting up an entity with no direct review or direction. The Bill makes it clear that the Minister can only provide a Statement of Expectations to the CEO.
7. The Commonwealth EPA is effectively a law unto itself save for one provision in another Act to which the CEO is answerable. The Public Governance, performance and Accountability Act 2013 Part 4.3, Division 2 refers to an independent review.  Such a review can only be called by the Finance Minister in consultation with the Joint Committee of Public Accounts.  All very third-hand and ‘hands off” and only initiated by the Government of the day.  The Parliament has no effective direct role. Not at all transparent or accountable. This can be corrected by allowing the Parliament to review the Commonwealth EPA’s operations.  Suppose all this independence is to ensure there is no undue influence concerning the protection of the environment and biodiversity (the Commonwealth head of power will legislate under the foreign affairs power). In that case, it must be remembered that the current government introduced the National Anti-Corruption Commission Act 2022, which established the National Ant-Corruption Commission.
8. Now to the Register of Registrable Decisions.  Clause 18(1)(b) authorises the publication of certain matters contained in the Rules.  This is of concern as any individual or entity has no recourse when their civil rights might be impacted by this publication.  The CEO can suspend the Register if a matter of integrity of the Register arises. But this is within the CEO’s total discretion.  Clause 23 sets out certain information not required to be published on the registers.  The basis for so doing can only be public safety, damage or a matter protected by a provision of Part 3 of the EPBC Act 1999 or damage to Australia’s security, defence or international relations.
9. What happened to the rights of the citizens of Australia that might be damaged without good cause?
10. The CEO has the power to gather information in the exercise of the CEO’s functions or powers.  Information can be disclosed to other Commonwealth entities, State or Territory government bodies with an undertaking not to disclose the information, but this opens a can of worms. A quick look at the Government Information (Public Access) Act 2009 Schedule 1, which lists ‘Information for which there is a conclusive presumption of overriding public interest against disclosure”, causes an immediate dilemma as to how the categories would capture an undertaking given to the Commonwealth EPA.  The respective State Parliament would have to ensure their legislation restricted the public disclosure of such material received from the Commonwealth.
11. Part 4, Division 3, Subdivision B authorises the use and disclosure of an entrusted person to disclose information gathered or obtained. Firstly, the term’ relevant information’ is used.  This is a defined term and essentially is any information the CEO is authorised to gather. Secondly, clauses 37 and 38 permit using information in the public domain or where the relevant information relates to a person who has consented.  However, what is not clear is that consent has not been given.  The reading of the Bill suggests that if information gathering is authorised, it can be used even if consent has not been given.  Here is the rub.  Individual rights are not recognised in this legislation.  The Bill rides over the top of them. Remember, the key issues are the EPBC Act, the defence of Australia and public safety.
12. Personal rights can be preserved with the Bill authorising an application to the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975 Act by section 25 of that Act where the CEO requests ‘relevant information’ where it might be challenged based on commercial-in-confidence, or its release will harm the individual or entity.  One can see clearly that if an act or action of an individual or entity damaged a flora or fauna or the environment, then the two grounds of objection would be seemingly difficult to uphold.  However, with such an amendment, the rights of the Australian people are upheld and not trampled.  No amendment to the Bill has covered this basic principle of a liberal democracy.

There is precedent for concern. In NSW, two Acts establish the NSW Environmental Protection Authority. Under one, only the Minister can direct the EPA. There is no other form of review in either piece of legislation. This means no one is reviewing the issuing of subordinate legislation (policies, protocols, standards, and codes) to ensure they do not override the legislative remit.  

So recently, these matters have been identified:

1. It has been established for over a decade that the NSW EPA has not been following procedure under its authorising legislation. 
2. There is clear evidence that some of its policies are outside the legislative remit.  There is only the capacity to run a Supreme Court matter for possibly $220,000 plus to correct the matter.  Who is going to do this? Yet the industry being thwarted on overseas estimates is climate change friendly, sustainable, and an employer of people.  The IPP recommend that the EPA has issued a policy to stopping the use of forestry wood residue. Yet European bodies and the IPPP have recommended and endorsed such a policy in line with sustainable climate change practice.
3. The same EPA officer has prosecuted one firm in NSW four times. Three times, the prosecutions have failed for lack of evidence.  This sounds like harassment, yet the EPA management has not noticed the issue.
4. In a recent in-field interview, it became evident that EPA Officers were relying on digitally gained evidence that was clearly tampered with, as the source of the data is designed to be indestructible or unalterable.
5. The EPA is inconsistent in its communications when issuing its protocols. There is growing evidence that communications alter the extent to which environmental lobbying has occurred to and with the EPA.
6. Last year, in the Tallagandra State Forest, a greater glider carcass was found.  The discovery was used to harm private businesses, and it was only through a Freedom of Information request that a highly redacted autopsy report from Taronga Zoo Sydney revealed the carcass died of natural causes, in all probability at the actions of a powerful owl. This owl is a natural predator for the greater glider. 

The point is that all this information is in the public domain, yet the NSW EPA cannot be questioned about any of it. 

There are Budget Estimates for the NSW Parliament, but specific details of names and places have to be provided.  There is a public concern that raising such matters publicly will only bring vindictiveness and harassment.  There is no means to privately raise any issues. One would not go to the CEO of the NSW EPA or any other officer.

Dictatorial regimes are easily identified in one-party states.

Stasi is an abbreviation of Staatssicherheit, the Ministry for State Security in East Germany during the Cold War era before the fall of the Berlin Wall. 

However, one could also use the abbreviation “KGB,” which stands for the Komitet Gosudarstvennoy Bezopasnosti, the Committee for State Security. Since 1991, the KGB has become the FSB (Federal Security Service of the Russian Federation) and the SVR (Foreign Intelligence Service).

The Chinese have a Ministry of State Security, one of the world’s largest and most secretive intelligence organisations.  The common point is all these organisations are bureaucracies of left-wing Marxist/Communist governments to control their citizens and advance the cause of their sovereign interest.

The relevance of this information is that in Australia, we are building an environmental equivalence to these State-run instruments of oppression and intimidation at the behest of the bureaucratic taxpayer-salaried people who, in reality, are unanswerable and unaccountable.

We all need to be careful what we seek. To achieve this outcome, we should say yes to a protected environment but no to Stasi or KGB administration styles.

With more alert MPs, this balance might occur.  However, the current parliamentary debating record of this Bill reveals that this is not occurring.