ASHBY, Ms Lis, Policy and Innovation Lead, Biodiversity Council BELL-JAMES, Professor Justine, Member, Wentworth Group of Concerned Scientists [by video link] BOOKLESS, Ms Claire, Senior Policy Analyst, Invasive Species Council [by video link] BOOTH, Dr Carol, Policy Director, Invasive Species Council [by video link] MARON, Professor Martine, Member, Wentworth Group of Concerned Scientists [by video link] STEINFELD, Dr Celine, Chief Executive Officer, Wentworth Group of Concerned Scientists [by video link] WINTLE, Professor Brendan, Lead Councillor, Biodiversity Council [12:26] CHAIR: I now welcome representatives from the Biodiversity Council, the Invasive Species Council via video conference and the Wentworth Group of Concerned Scientists via video conference. I understand that information on parliamentary privilege and the protection of witnesses giving evidence to Senate committees has been provided to you. I see nodding in the room and online. I now invite each of the groups to make a short opening statement. At the conclusion of your remarks, I'll invite members of the committee to ask questions. Prof. Wintle : Thank you, senators, for having us here today for this opportunity. The Biodiversity Council was happy to see the changes to the EPBC Act passed last year, particularly the introduction of unacceptable impacts tests, the provision for national environmental standards and the removal of carve-outs for the forestry industry. We just want to quickly remind the committee that, since the EPBC Act was established, we've seen on average a four per cent decline in populations of species every year. Last year, this current Commonwealth government approved the destruction of 56,000 hectares of endangered species habitat, which was double the amount that was approved in the previous year. That is just a bit of context about where we're at in the extinction crisis. To address those failings, Professor Samuel recommended national environmental standards that are clear, specific, legally enforceable and outcomes based, and also based on data and evidence. That was for all decisions. The draft standards in front of us fall well short of Professor Samuel's recommendations. They only apply to development approvals, not all decisions, and there's way too much discretion and weak and vague language. The MNES standard is particularly vague and discretionary. It focuses on process, not outcomes and it completely fails to address cumulative impacts. I'll say that again: the current MNES standard completely fails to address cumulative impacts, and that was a key area that Professor Samuel was eager to see addressed. The offset standard lacks a clear statement of outcome. It currently lacks a definition of net gain. The restoration's contribution holder can essentially steer away from all of the principles such as 'like for like' when deciding whether a payment for an offset is suitable, and, at the moment, neither standard specifies the rigorous monitoring of outcomes. If we don't require measurement and monitoring, there's no way we can actually know whether we're achieving our outcomes. Finally, we have very poor guardrails about what can be offset and what cannot be offset under the offset standard. We really need to have a clear list of things that are not offsetable because they are either infeasible to restore or there's too little of them to lose. We've provided marked-up changes to the standards that we hope you've been able to have a look at. We can always provide clarifications on those. I'm particularly looking forward to the conversation with Senator Bragg about the housing crisis. CHAIR: Thank you very much. May I go to the Invasive Species Council, please? Dr Booth : Good afternoon, everyone. The overarching theme of our message this afternoon is that if Australia's ever going to stop the cycle of biodiversity loss, we need to deal much more systematically with the major threats, and this can't be achieved just by focusing on the EPBC processes for assessing and approving new developments. We have a different focus from most others that you'll hear from today because we're focused explicitly on one of the biggest threats of all—invasive species. I'll just make three brief points. The first point is that invasive species have been by far the major cause of animal extinctions to date, including six of seven extinctions since the EPBC Act commenced. The second point is that means that, under any reform agenda, preventing and mitigating invasive species threats should be a priority focus, and this means that opportunities to improve the following functions should be a priority. Those three are live imports, threat abatement and bioregional planning. Our third point is we ask the committee to make a recommendation that standards be developed for these really vital functions of the EPBC Act. My colleague, Claire, will make a couple of brief comments on the standards already proposed. Ms Bookless : While the Invasive Species Council welcomes the development of the draft Matters of National Environmental Significance and draft offset standards, as they currently stand, they have failed to embrace the opportunity to more effectively address threats such as invasive species, and this risks their ultimate conservation goals. We recommend strengthening both standards by removing weak language and expanding the MNES scope beyond just simply addressing controlled actions to also addressing all relevant decisions, plans and policies as well. The draft offset standard also needs to provide clear red lines to prohibit offsets for irreversible impacts on critically endangered species and communities, or where offsets just simply aren't feasible. It must also apply to all offsets, which includes restoration contribution charges, mandate legal security and require ongoing management funding to ensure genuine, resilient conservation gains against threats such as invasive species. CHAIR: Thank you very much. And the Wentworth group. Dr Steinfeld : The EPBC Act reforms have been a fundamental element of the protection of Australia's Matters of National Environmental Significance. We welcome the reforms that were passed late last year. However, in the current form, they are just a set of legislation and the standards that underpin them, and the range of work that's needed to deliver the outcomes that are needed under the act, are simply not there right now and not sufficient to achieve what we think is the key fundamental need for reversing the decline of biodiversity in Australia and improving the state of our environment. This is in recognition that this has broader benefits for society and for business. The focus today is on the standards, and we strongly endorse the need for strong outcomes focused standards as envisaged by Graeme Samuel. That means the standards need to clearly set the measurable limits on environmental harm. They need to provide a pathway to improve environmental outcomes while providing the regulatory certainty and the enforceable guardrails that give us confidence that we're going to be achieving the outcomes that were intended. The proposed standards don't yet meet the legislative requirements of section 514YD regarding the making of national environmental standards, nor do they fulfil the role envisaged by Professor Samuel. What we need to see in these standards for them to be effective is the clear prescription of the measurable, enforceable net outcomes for affected matters, including an explicit requirement for net gain for matters of national environmental significance. A really important aspect of the standards, as well, is to provide the necessary guardrails for the streamlined assessment pathways, particularly the bioregional planning component, which accounts for cumulative impacts of development. That, as was reiterated by the Biodiversity Council, is a very fundamental challenge that we have in Australia and a key concern raised by Professor Samuel. There is no bioregional planning standard proposed under the suite of standards that we're expecting. That raises significant concerns around the outcomes that we'll get under the regional planning system. We're also very concerned about the discretionary language and a lack of clear wording specifying the outcomes based obligations. There were, very particularly, many words within the standards that reflect the weak or ambiguous terms, and as such the standards fail to set those clear outcomes that would limit environmental harm and provide the assurance that the net gains for nature will eventuate. This will cumulatively flow through to every decision that's made, every approval, every state and territory accreditation. We need to address that if we're to get the outcomes that that are intended. Finally, the information base is absolutely critical. With the establishment of Environment Information Australia last year—that was a very important step forward, but there's still vast scope for improvement in the regular, rigorous and transparent reporting under these standards. We have a crucial moment. This is the key opportunity for the Senate to contribute to informing the standards that are set, and we really need to ensure that the standards act as firm guardrails to ensure that there is no net loss of biodiversity and to provide the regulatory certainty that's much needed for industry. CHAIR: Thank you very much. Senator Hanson-Young. Senator HANSON-YOUNG: Thanks everyone for your submissions today. Obviously there's a lot of echoing of concerns about making sure these standards actually do what they've promised to do and about ensuring that there is genuine intent around protecting rather than just approving destruction. I want to know how much you feel that, in order to feel satisfied that the matters of national environmental significance standard and the offset standard, which are the two drafts we've got—how important it is to see those other standards before knowing whether those two are sufficient. Is it a jigsaw puzzle that does the whole lot, or is it okay to just do one after the other? Prof. Wintle : I can start. I think the Wentworth group articulated this pretty nicely. If we are going to look to regional planning, for example, as a solution to some of the significant challenges that we face in identifying where we should and shouldn't develop, then we need to understand very clearly how that regional planning would be done and how that intersects with the offset standard, because clearly the regional planning process would involve potentially significant amounts of planning around offsets. We also need to understand what kinds of requirements there will be for measurement and data collection around the application of all of the standards. We would really love to see a standard that sets out data and monitoring expectations. At the moment, there are really no clear expectations in either of these standards about the data that would be collected or even the accountability that would be required for us to tell whether or not we're meeting our objectives under the standards and under the act. Maybe, there might be some solace that would come in seeing data standards that specified those things, but I don't want to hold my breath for that. I would much rather see these standards of data, monitoring, reporting and accountability brought into these standards in front of us. Ms Ashby : I also think it's beyond this suite of standards but also the other new instruments that are being brought under the reforms. We understand that frameworks for protection statements are being developed right now. There's a risk that, if the MNES standard is not brought up to scratch, that the protection statements will provide a higher bar for a select group of species, but that a lot of others, for which protection statements may not be made, are existing in a sort of limbo or in a very discretionary space. Protection statements have the potential, for instance, to specify areas of critical habitat to be protected, to specify whether the matter can be offset or not, and yet the MNES standard falls well short of that. So seeing how they intersect is important to understand how they relate to each other and the ambition for how many protection statements will be made, but there is also detail to do with the restoration contributions holder that then has a relationship to the offset standard, because the restoration contributions holder is allowed to vary some of the requirements of the offset standard, and so things like the membership of the committee that will decide whether alternative offset arrangements are acceptable will be interesting, as will the way that the amount of restoration contributions are calculated and how long the restoration contributions holder has to find a compliant offset—all those things around how that scheme operates have a bearing on understanding how matters will be offset and whether they will be offset to a standard that is really, truly compensating for the impact. Senator HANSON-YOUNG: And you've got concerns, obviously, in relation to the current draft of the offset standard. You sound like you're pretty worried about that. Ms Ashby : Yes. Senator HANSON-YOUNG: Is there anything in particular, beyond the discretionary language—is it actually that it is not clear enough that this should be an absolute last resort? Prof. Wintle : Mitigation hierarchy is in there, but I think there's just so much flex in the language and there's so much discretion that we could see significant damage coming forward. There are no clear guardrails around what can and can't be offset. The principles that we would aspire to for offsetting can be waived away by the restoration contributions holder, who doesn't have to adhere to those principles. I'm conscious that Professor Maron's probably got some input that they might like to make on this topic as well. Prof. Maron : Thank you for that. On the first point about how these standards fit together, we've all been involved in this process for some years, so forgive me if I'm remembering this incorrectly, but my recollection is that, originally, the idea was that the MNES standard, given that that's what the act is meant to be protecting and recovering, was the overarching standard that set out what we needed to achieve for those matters of national environmental significance—the outcomes that we had to achieve. Then all of the standards around that—around the data that we needed to track whether that was happening, where offsets were relevant and how they would need to work to actually achieve that outcome—would all have relevance back to that MNES standard. While, yes, it is frustrating not to be able to see the full suite of standards together and understand how they work, the MNES one is a really, really key one to look at, because, if that's not clear, then everything else falls over because we don't understand what we're actually trying to achieve for the MNES. I think everybody here has commented that the outcomes required for MNES are actually not clear. On the offset standard, that's exactly right. I think there are a lot of good ingredients mentioned in the offset standard, but the language is vague, which means that in most cases you merely have to think about these things rather than do them or achieve particular outcomes, which obviously doesn't give you much assurance about achieving good environmental outcomes. Secondly, as Professor Wintle has just explained, they don't have to occur. Even if we could tighten the language, the restoration contributions holder doesn't need to achieve an outcome that's aligned with them. Offsets are defined in the offset standard as being the payment, not the outcome that needs to be achieved by the payment. A payment obviously doesn't do anything at all on its own for the matter that has just had some of its habitat destroyed when it's already on the brink of extinction. These are the issues that we need to see tightened up. Senator HANSON-YOUNG: Yes. Got it. Prof. Wintle : I could probably go on about offsets for quite a while, so you just tell me when you've had enough. But at the moment we don't even—there's no language in there that sets the baseline against which we would be measuring our performance. We would like to see a fixed baseline so that all decisions and actions lead to a net gain against that fixed baseline—ideally, the day these things are signed off. At the moment, that is not there, so there's no real expectation or aspiration against which we can measure the performance and the outcomes of the offset standard. That's a loose and dangerous place to be. We've already had previous groups—the Gunditj Mirring group—talking about how they feel the offsets are completely failing to protect country, and I think there's a lot of other evidence to indicate that offsets and offset programs in themselves brought about a lot of damage, including the review by Dr Ken Henry recently of the New South Wales BCT program. Senator HANSON-YOUNG: Whether it's Ken Henry or the Auditor-General, there's been a long list of problems highlighted and on the public record with the New South Wales system, and I think we do really have to protect against implementing anything that looks quite like that. Prof. Wintle : Yes. Senator HANSON-YOUNG: Could I ask you about forests and forestry and whether you've got any concerns with the approach that we've heard from the forestry industry in Tasmania, given that getting rid of the RFA exemption is so important if we're actually serious about protecting critical habitat. Prof. Wintle : We are concerned that there is a play—and perhaps that's even being fuelled by some words by the minister—that forestry will be able to essentially continue as is. Our expectation is that all actions that potentially impact on matters of national environmental significance would come under and be assessed equally across the spectrum of actions, and forestry should not be exempt from that. I was disturbed to hear the secretary of the Tasmanian state environment department talking about the idea that perhaps they could use offsets to cover the cost of firefighting helicopters and research in Tasmania. I think— Senator HANSON-YOUNG: It did strike me as quite odd. Prof. Wintle : that's a huge concern. We need to make sure that those kinds of perversions of the use of the offset system are avoided by having tight language in the offset standard that precludes those kinds of actions being considered offsets. They are not offsets by any measure of scientific credibility. So we really need to tighten the language to eliminate any misconception that you can destroy a hundred hectares of habitat and you can offset that by paying for some firefighting equipment that's going to try and prevent— Senator HANSON-YOUNG: Yes. I think one of the helpful things about that evidence is that it belled the cat. I thought it was an extraordinary admission that they want to find ways to make use of the offsets program other than protecting— Prof. Wintle : Can I be clear though. That comes with a lot of precedent. We've seen a lot in Western Australia already that offsets are essentially underwriting a lot of the research and development programs in WA with the notion that, if we learn more, we can actually do better for species. That may be true— Senator HANSON-YOUNG: How about we just stop destroying species' habitats? Then you wouldn't have to spend all the money. Prof. Wintle : That's right. It's a pathway to a net loss if we allow that. Senator HANSON-YOUNG: Thank you. CHAIR: Senator McLachlan? Senator McLACHLAN: I've got a question for the Invasive Species Council. Thank you for your submission. My understanding of dealing with invasive species is that it takes time and an ongoing process of unrelenting programs to not only eradicate invasive species but also ensure that they don't return. If your recommendations are not incorporated, what is likely to occur under the new regime, given that invasive species control is a little bit different from, say, the other discussions we've had this morning in relation to habitat? Dr Booth : You're absolutely right. It is a very different type of threat, and the assessments and approvals regime can have very little influence over that massive threat. If we don't get standards on live imports and threat abatement provisions, in particular, and we assume that that means perpetuation of the status quo, what we are likely to see is more and more new invaders—those that are permitted as imports and the pathogens and parasites that they can bring. We're likely to see more threats that lack effective threat abatement programs and continued expansion and intensification of many well-established threats. I'll highlight a couple of things that could be improved by standards. One scenario that should keep everyone awake at night is more and more diseases arriving in Australia, including those that arrive with live permitted imports such as fish. Currently, the Australian government is contemplating allowing the import of parrots from more countries, which seems crazy with the risk of bird flu already hanging over our native birds. Apparently, the environment minister relies on assessments conducted under another piece of legislation for disease risk, and there's no requirement for the objectives and the principles of the EPBC Act to apply to those assessments. There's been a recent critique by the Inspector-General of Biosecurity about that. One of the options for a standard would be to require the application of principles and standards under the EPBC Act to all decisions relevant to live imports. Another deficiency with live imports is that an awful lot of species on that live import list have never been assessed for risk under the EPBC Act or, in fact, under the preceding legislation, and that includes something like 90 per cent of the hundreds of freshwater aquarium fish on that list. That's because they were already permitted when the EPBC Act commenced. One thing you could do under a standard is require reviews of the species already on the list to be sure that we're not allowing the import of high-risk species. With the threat abatement, we've currently got major gaps in the threat listings, and there's not a focus on new and emerging threats, which is when you can really make a difference to a new threat, so we would want to see processes under the proposed standard to ensure there's a systematic identification of threats and a prioritisation of those threats so that we're focusing our limited resources on the most important threats. There are many other things that you could improve with a threat standard, a live import standard and a bioregional planning standard. That could make our focus on threats in Australia much more efficient and effective. Senator McLACHLAN: I'm opening this up to the panel, and this is probably very much a lawyer's question. If you take that approach, the standards then become less passive. I'm not coming from an approach against this; I'm just trying to understand how best these standards can be drafted to become quite forward leaning and take a very active regulatory role. I'm interested in whether anyone has reflected on that, because most Commonwealth drafting is somewhat in a responsive tone. I'm happy to clarify that. If you're going for invasive species or for other things that you need to positively address, is there any thought from the panel about how we approach what's in the standards more generally or how we express it rather than the usual regulatory approach of saying do and don't—or have I completely taken the whole panel in the wrong direction? Prof. Wintle : You've asked a really good question, and I think it speaks to the Invasive Species Council's last contribution. At present, the MNES standard is really just reacting to development approval applications. It's not using the language of addressing all of the policies and programs of the government that it should be addressing. For example, the objectives under the current draft of the MNES standard for threatened species just talk about habitat critical to survival—irreplaceable habitat—when in fact it should be talking about the outcomes for the species in terms of the species abundance and distribution, of which habitat is one contribution. If you only focus on habitat, you actually forget all about invasive species and the role that they can have. You forget all about the activities that actually catch and destroy threatened species, including fishing. So there are a whole bunch of reasons why the MNES standard should take a broader view to focus beyond just development approvals into all policies and programs that influence threatened species and ecosystems and expand the objectives to be beyond just focusing on habitat for species. Ms Bookless : To add to that: certainly, I think that there is a lot of room for improvement in the standards as they're currently drafted—the ones that have been released—and a role for proactively setting goals and outcomes that we actually want to achieve for all of our matters of national environmental significance. In terms of our spatially defined matters of national environmental significance such as World Heritage areas, Ramsar wetlands and National Heritage List places, a lot of the actions undoubtedly have an impact on these places, but some of the most pervasive and important threats to these places are things like invasive species and changes in climate, fire regimes et cetera. They need to be managed at a landscape scale, and that does require proactive and not reactive management. And certainly I think that these standards, in focusing solely on controlled actions, have really missed that opportunity to set the standard of what we'd like to see in terms of the management of these places. Our submission does recommend that, consistent with the Samuel review, the standards address not only controlled actions but all relevant decisions, plans and policies so that they're all directed towards the same outcome and goal, really set a national standard and seek to achieve both our national and international obligations to these places and species. Senator McLACHLAN: This is for the whole panel. When we debated the bill—this is not a criticism of anyone's contribution to the debate—it was very much about the decision-making time and development on one side of the ledger and then environmental protection. Where in the ecosystem this bill creates is the aspiration to improve biodiversity from the current position? Does that come in as government policy and is then injected into the standards? You could have a situation where this whole thing is working perfectly, but we stay the same and we don't seek to redress past behaviours. I'm not addressing that question to anyone in particular, and I'm not in the room, so I'll leave it to the chair to direct the traffic. Dr Booth : With invasive species, for example, we've got something like more than 30,000 introduced species, and 5,000 to 6,000 of them are out there in the wild. A lot of them are very newly established and only at the start of their life, having an impact on native species. So if you're thinking about how we actually improve the trajectory of biodiversity in Australia, then you have to be really focused on all the different threats out there and either preventing new ones or mitigating those that are on the start of their journey or well established. Yes, it does require that focus on new developments, but, in reality, the majority of extinctions to date have been those other types of threats that can't be mitigated by regulation. Senator McLACHLAN: Does anyone else want to have a go? That's my last question. Dr Steinfeld : If I may add to that, one of the fundamental concerns is around the fact that the standards don't clarify what that outcome looks like. As you'll know, the real focus of Professor Samuel's review was outcome based standards to guarantee outcomes, not process. That is where he expected to see clarified and injected that environmental value. What we think is really crucial here is absolute clarity on the on-ground outcome that's going to be achieved through the standards. In our expression of that, it is a net gain, an improvement, based on a baseline from where we are now. We've had many international agreements that we can draw upon to help further define and articulate what that looks like—for example, the global biodiversity framework that sets out ambitions for a 30 by 30 outcome, we have our Ramsar outcomes and migratory bird agreements. There are many ways to enshrine the outcomes of those agreements set into the standards, and that's what needs to be clarified in writing in those standards. Prof. Bell-James : I think this has gotten incredibly complicated over the five years we've been talking around this. Senator, I think you encapsulated it really well with what you said. Isn't this really just about reversing this trajectory of decline that we've got? It honestly should be as simple as that. That's the outcome, right? To not have biodiversity declining at four per cent year on year and to not have new extinctions. That's an outcome. What the reform act asks the standards to have is an outcome. What we see in the standards as drafted are not outcomes; they're processes, which is exactly what the critique of the Samuel review was—this focus on processes and ticking boxes. The things that are drafted in the standard are not outcomes in the way that that we're talking about it here. It's just more process. Senator McLACHLAN: Chair, can I have another question? CHAIR: Yes, you may. Senator McLACHLAN: This will be the last for me; I know you have other questions. Where in the whole of this process—I always look at it from life in the chamber—where do I go each year, when this is all working, to know that we have not only arrested biodiversity decline from an Australia-wide perspective but also gone the other way? Who's pushing to go the other way in the system? Is that the government? Do I hold the government to account for policy settings? Do I hold the regulator to account in estimates for their oversight of the whole system? It seems to me that it's an interesting system with a whole lot of delegated legislation, if I can call it that, or regulation standards, and they've all got to work in unison to produce an outcome. How much is government ambition? Or do we set this thing up, it rolls and then we hold the regulator to account? Ms Ashby : I think that's really— Senator McLACHLAN: Or is it too hard a question? Ms Ashby : No, I don't think it's too hard. I think the answer of where the data is is too hard to answer right now. But I think that regulation, in the way it's currently drafted, is only going to be one portion of the story. That's only going to be looking at reducing harm, or at least resulting, in the best case, in a neutral outcome related to whether we appropriately compensate for impacts. But it's the overarching policy settings and all those other instruments that exist in the EPBC Act, like recovery plans, that are meant to be delivering those recovery actions that take us from a species in decline to one that is at least maintaining or improving its status. It's very important, though, to think of the standard as something that wasn't ever intended to be just in the managing harm context, based on what Samuel's ambition was. And it's actually really important for us to have that standard that sets an expectation and an ambition, because I think that, then, it's able to help navigate those spaces between when we're regulating or when we're writing recovery plans and how these things change when there are changes to the environment. Phillipa talked about environmental disasters. We know that the 2019-20 bushfires changed areas of habitat that we expected to be really important for species because they burned, and then secondary areas became much more important. We know that certain things that we'll be doing for a species might not be effective, and we might have to change them. We may have different expectations of how harmful an activity is. When we go to a regulatory environment where it's very static and very much framed as minimum requirements, we're not establishing a situation where we can really navigate the dynamism that exists here and how the different pieces fit together. But when we have an overarching outcome, then we can go to the policymakers and we can say what's making a contribution to the outcome where we are right now and what aspects of that need to be improved. Is it the fact that we're doing our very best to recovery plans but we're seeing these cumulative impacts? Or are we in a net neutral space for a regulatory outcome, but it's just that we're not doing enough for recovery? But without that sort of overarching outcome and that ambition, we can't then look at the pieces individually to see where improvements need to be made in the action that's being taken by government. Senator McLACHLAN: Thank you. Back to you, Chair. CHAIR: Senator Bragg. Senator BRAGG: I've got some questions for the Wentworth Group. I thought your opening statement was interesting. Effectively, you're saying that you don't think that there's enough certainty about the definitions in the draft regulations. Prof. Bell-James : What do you mean by draft regulations? Do you mean the standards? Senator BRAGG: Yes. Prof. Bell-James : Yes. Correct. Senator BRAGG: This is the same point that the housing people make about not being able to get houses built. Is there a way that we can get something that's going to provide certainty for everyone who wants it? Or is this beyond the scope of human capacity? We can put someone on the moon, but we can't get the regulations right. Prof. Bell-James : I think we can. I think there's this problem of discretion that's just littered throughout the legislation. For example, the word 'satisfied' appears over 200 times in the reform act—the minister must be satisfied that it's consistent with. We've already got that discretion just absolutely layered in pretty much every obligation or power that's within the act. Then that's all flowing through into the draft standards as well—it 'should' do this. There's nothing there that tells you that this is what you need to get to as an outcome. Plus, as I said before, they're not actually outcomes; they're processes. And that's not good for anyone. The whole problem with the act that we've had in place for 25 years is that it's process based and nobody dealing with it can predict what the outcome will be. It means you get this really long process that 98 per cent of the time results in an approval, but you can't guarantee that. So I think that limiting discretion—having really clear ideas that this habitat is really important and we can't disturb that—is good for biodiversity, but it's certainly good for the industry you're talking about as well. Senator BRAGG: What about this idea of having a calculator? Do you like that idea? Prof. Maron : By a calculator, are you talking about the restoration contributions calculator? Senator BRAGG: Yes. Prof. Maron : It's hard to know where to start on this topic. This is one of the biggest problems with the changes to the act and with the standards. I'm in Queensland. We already have one of these. And we have the option for state based offsets to either pay into this fund, based on a calculator, or deliver their own offsets. More than 95 per cent of the time, the payment is the pathway that's selected. The vast majority of those offset obligations have not been able to be delivered. So the state is accumulating an enormous, largely unfunded liability. The developers, on the basis of handing over that liability to the state, who want to be able to say to their customers, to their shareholders, 'We have met environmental outcomes; we have offset the impacts we have caused,' can no longer say that, because it's not happening. The amount of money being collected is not enough. But the biggest issue is that the payments are allowed regardless of what the impact is. In a lot of cases, there are no offsets. It's not possible, even at any cost, because we can't recreate what's being destroyed. We're already past a key threshold, because we're talking about already threatened species and ecosystems. They're already below where they need to be. We need to recover them. If you destroy more of what is irreplaceable, you can never achieve that, and no amount of offset is going to restore things. This is not just a problem in Queensland. As we've heard reported, again and again, in New South Wales, it's a problem. It's a problem in Western Australia. It's a problem in South Australia. It's a problem in Canada. It is a problem everywhere these funds have been attempted, because the calculations and the safeguards have not been in place. Senator BRAGG: It sounds like you don't like the calculator idea. I'm trying to work out how this is going to all work. Effectively, what the parliament has decided to do is enact legislation which is leaving open a lot of the key questions to the delegated instruments that we're talking about here. There's also this prospect of having another federal agency running a lot of it, in a day-to-day sense. Wouldn't it be better for the law to set out what the key definitions are and what the key thresholds are, whatever they might be? Then you would have, effectively, one agency, rather than having two bodies in different states or a state and a federal jurisdiction, trying to do this. I'm just trying to think what's going to be the most effective and efficient way to give people the certainty they're looking for, regardless of their perspective. Prof. Maron : Can I briefly comment on the point as it relates to the offset? There's a broader question there, in terms of how things are handled administratively, which I might leave to my colleagues. We've made many suggestions about how this very messy, expensive, problematic system could be made more reliable in terms of offset payments, such as putting around safeguards. One of the most important ones is this: we do know a set of things that we can offset and that we can cost so that we know that we can accept an appropriate amount of funds for that. A list of what is offsetable and limiting offsets to those things, including accepting liability to deliver those offsets for those things, would be a really important step there. If we find that we are starting to accumulate offset liabilities that we can't deliver, there would be a 'no' on further impacts until we resolve that, until we find a way to address those sorts of impacts. I'll leave the comments on the administrative arrangements to others. Prof. Wintle : I would like to talk about certainty. Broadly, the objective of this whole process is to streamline and create greater certainty. I think we all support that. That was very much the objective that was articulated by Graeme Samuel as a precursor to this process. What does that look like? To me, it looks like very clear objectives that we set for outcomes for our biodiversity, very clear guardrails around the sorts of things we know we can't afford to do if we want to achieve those outcomes and good planning that's resourced properly, through regional planning, that actually maps whereabouts a developer can go with certainty to do a development and where we know they cannot go. That kind of clarity is the only way that we're ever going to reach, I think, the situation where you have the prospect of satisfying housing demand and you have the prospect of satisfying the urgent need for us to stop destroying habitats and driving species closer and closer to extinction—at the rate of four per cent a year in this country. The clarity comes from clear objectives, clear guardrails and good planning that's properly resourced, and then the data and the requirement to measure those outcomes so that we know we're actually heading towards a place we want to go. Senator BRAGG: Are there any comments about the prospect of this EPA and its functions—that it may not be able to do anything and completely undermine that concept of certainty that was just talked about? Ms Ashby : I think certainty really depends on what the rules are, right? One of the things that people talk about is how long it takes to do development assessments and approvals—that the time results in significant holding costs for developers. But a lot of that is to do with the discretion. Someone who's a regulatory officer who's sitting in the department who has to make recommendations up the line to the minister about whether or not he approves something, and with what conditions, has an easier task if the rules are clearer—if what is an acceptable type of development is clear, if it is clear what is going to be able to be offset and what conditions should be placed on that. The more ambiguity that exists within a standard, the more discretion there is and the harder it is for that person to assess an application and make a reasonable recommendation to the minister. They'll have to go round and round and negotiate things. They might put something up the line. There might be feedback that, no, they should take a different tack. That's not solved by having an EPA, because it's the same type of problem. It's the same type of person sitting there having to look at these rules and make a recommendation about whether something should be approved or not and whether compliance action should be taken or not. It's all dependent on the certainty and clarity of those rules. The thing that I'd like to challenge, though, is the notion that everybody within this system, on both sides—on the development side and on the environmental side—is interested in certainty, because I would say one of the reasons we've stepped back from having more certainty in this process is that some interested groups have seen that there is more advantage in having discretion because they perceive that they may get better outcomes through lobbying directly. I'm not saying that's everyone. I think there are a lot of people who would like there to be more certainty. But I think there are a lot of times when people want certainty when it's a yes, but they don't want certainty when it's a no. Senator BRAGG: Isn't the issue here that, if you have a body like an EPA which is going to be, effectively, making its own judgements if the regulations aren't clear, then we end up with an even worse situation? I think most reasonable people would say—even if your position was that you don't want to see any more houses built in Australia and you want everyone to live in the bush under a gum tree, it's not a good outcome for people to be wasting money on developments that will never go ahead. As you said before, it's better to know what are the areas that are available for development and what are the areas that are off-limits. Prof. Wintle : Yes, that's exactly right. That's the concept of clear guardrails. Senator BRAGG: If that's the point, then shouldn't our focus in delivering another Senate report here be on working out what needs to be in these regulations to ensure that that is better known and better understood, rather than leaving it all up to the vagaries of what a future regulator might do—whether its approval rights have been removed and it has an ongoing role. Wouldn't it be better if we had very clear, very simple, very well understood regulations? Dr Steinfeld : We're in furious agreement about that. That's exactly why the Wentworth group has been so supportive of the bioregional planning standard—to set clarity around where in the landscape would be the best areas to prioritise biodiversity, where would be the best areas to prioritise development and where would you be able to achieve multiple outcomes together. At the moment the legislation certainly doesn't provide that kind of holistic clarity around where you would draw those lines. For example, with the conservation zones, the requirements for specifying where you would draw lines on maps are essentially about specifying one or more areas. They're not actually about the clarity around what those lines should contain and how you would systematically do that across the landscape. In addition, what kinds of activities are allowed to occur within each of those categories is not well articulated, so that is also difficult to determine. Even if we did go through that process of mapping, what would be in and what would be out of a particular zone? Underpinning all of that is the need to provide for a bioregional planning standard that gives a lot greater clarity on where you would define those areas and making sure that those areas do align with the objectives of the act. Secondly, we need to ensure that the information base is available to enable that work to be done. At the moment, we're quite far from the information base that's needed. I'll just give you one example of that. Three states in Australia have mapping of pre-clearing and datasets on where trees exist in the landscape, but there is no national mapping of where woody vegetation occurs in a consistent way across the country. So we can't yet assess the cumulative amount of a habitat and also the consequences of changes in that cumulative amount. There's an opportunity here for standards that help clarify where in the landscape certain activities should occur, coupled with the information base that's going to enable us to, with confidence, determine where those lines on maps should be drawn. Ms Bookless : If I may just add to that, to take a step back out, not knowing what the full suite of standards will be really hampers understanding the work of each of the standards and what they need to do. I think that is a really important point. At the moment, a lot of people are trying to guess what the other standards will be and how they will all operate in concert. So, while we might not have all of the detail about all of the standards, at least knowing the intended suite of standards and making sure that that's comprehensive enough to actually provide the guidance required for each of these issues is really essential. It is really difficult to comment on, for example, the specific standards as they're released without fully understanding how they're going to fit in with the jigsaw of all the other standards. That's why we made recommendations for a number of standards that haven't been contemplated previously. The regional planning standard was previously flagged, but it hasn't been again. So I think there is a need for some clarity around that as well. Senator BRAGG: This is my last question then: if the regulations that are currently being considered as drafts were made and made permanent, where would that leave us? Would we be in a good place or a bad place? Prof. Wintle : I don't think we would be satisfied that we were heading in the right direction if they were signed off as currently written. We, on this call, are mostly, I believe, enthusiastic about the prospect of good environmental standards and the value that that would provide in terms of certainty for business and the community and also for the environment and environmental outcomes. We really think that the standards are a good mechanism, and that's why we supported the designation of standards under the reformed EPBC Act. But, as they're currently written, they are not going to help. So we really need to actually improve the language in the standards. We need to add in the things that are missing. We need to add in cumulative impacts so that we can set objectives for that so that we've actually got something to aim for when we're doing regional planning. There are some really fundamental things that have to go into these standards before we would consider them fit for purpose and before we would hand them to the EPA to administer, which I actually think is not a bad idea—having the EPA administering the standards—coming back to your previous question. Prof. Maron : I think it's astonishing that we're here saying that, from these standards, which were meant to be outcome based standards—that was the whole point of putting these together; to set out what we would achieve—we can't answer the question of what they would achieve. Things could go backwards environmentally very easily under these standards. They could improve; they could stay exactly the same. To me, any possible future exists under these standards, and I think that's what we would like to see change. I think all of the groups here today have suggested changes to wording that could help clarify a clear outcome based standard, at least on these two example standards that we've seen drafts of. Prof. Wintle : And we won't know which future we're pursuing, because there is nothing in the standards currently that compels measurement of our progress towards these outcomes, which are currently not properly specified. Senator BRAGG: Thank you. CHAIR: Thank you to our witnesses for their evidence today and for their preparation in terms of both submissions and what it takes preparing to appear at a committee like this and give the evidence they've given. Proceedings suspended from 13:25 to 14:10 .