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Enact a comprehensive land clearing trigger to conserve biodiversity, carbon and other benefits for landscape health. This could include 3 elements: • a trigger for clearing a certain scale of native vegetation (e.g. 100+ ha) in any two year period; • a trigger for clearing any native vegetation that is habitat for listed threatened species or ecological communities (at a minimum, listed critical habitat); and • a schedule of activities that would trigger the Act regardless of the hectares proposed to be cleared (for example, major coastal resort developments). The regulatory gap in relation to vulnerable ecological communities needs to be addressed. A central function of the EPBC Act is to require approval of significant impacts to threatened species and ecological communities. Sections 18-18A currently include offences to protect species that are vulnerable, endangered, critically endangered and extinct in the wild; and ecological communities that are endangered and critically endangered (but not vulnerable). The aim of listing is to prevent further decline and to promote recovery. While ecological communities can be (and are) listed as vulnerable, the current EPBC offence provisions do not in fact protect them from harm. Protecting vulnerable ecological communities is the missing piece in these offence provisions. This was identified in submissions to the Hawke Review (recommendation 14). A range of further measures are needed to update and strengthen processes and outcomes for threatened species, ecological communities and their habitats. This includes, but is not limited to, measures recommended in the Hawke Review. Renewed emphasis is needed on critical habitat protection for all listed species and ecological communities to promote climate resilience and avoid extinctions. The five-yearly review of Regional Forest Agreements (RFAs) is a timely opportunity to improve the rigour, performance assessment and oversight of forestry. Conservationists and the Courts have documented significant under-performance of state forestry management accredited under the EPBC Act, and in some cases, ‘exceedingly low’ state penalties. The Hawke Review proposed that if independent RFA reviews are not completed in time, demonstrate serious non-performance, or reveal inadequate information, then the full range of EPBC Act protections should apply to those forestry operations (see recommendations 28-29). A hallmark of good environmental laws is access to justice, including public rights to seek review of decisions in independent courts or tribunals. The EPBC Act protects the national environmental assets of all Australians. It should therefore provide ‘open standing’ for any person to bring judicial review of decisions—to ensure that decisions are made according to the law. Conservation groups and other interested persons should also be able to seek merits review of certain decisions. For example: • whether a proposed activity is a ‘controlled action’ under the Act (and if so, the assessment method required), • the issuing of permits affecting nationally-protected species, • international movement of wildlife, and advice about whether an action would breach a conservation order. Finally, the EPBC Act should be updated to provide a range of protective costs orders for public interest cases. As the former High Court judge, Justice Toohey noted, there is little point in opening the doors of the court if litigants cannot afford to come in. The risk of adverse costs remains a significant barrier to the community bringing public interest cases under the EPBC Act (as distinct from cases protecting private interests). The Hawke Review also supported new protective costs orders and other access to justice improvements (see recommendations 48-53), but these have not been implemented to date. These 12 recommendations provide a positive reform agenda for any Australian Government that takes its environmental leader - ship role seriously. Enacting these reforms will demonstrate good faith in restoring national environmental policy to an even keel. The proposals would improve public confidence and stakeholder engagement for more efficient and effective national environmental laws. This is part of the solution to ready Australia’s environment and economy for inevitable change, now and in the decades to come. Note: EDO NSW provided HSI with comprehensive briefing notes on ‘Priority EPBC Act Amendments’ and ‘Improving Access to Justice, Community Engagement and Public Confidence’ (under the EPBC Act). These briefings were presented to the Commonwealth Minister for the Environment, Greg Hunt, the ALP Shadow Environment Minister, Mark Butler, Greens Leader Richard Di Natale and selected Independent Senators. All political parties were urged to support the introduction of an EPBC interim amendment Bill which would see the Commonwealth maintain approvals powers over Matters of National Environmental Significance (MNES) and include a range of strengthening amendments suggested in the EDO briefing documents. The ALP has said that it will proceed with an interim EPBC amendment Bill and retain Commonwealth powers if it wins power at the coming Federal election. HSI also worked with the Places You Love Alliance (PYL) to prepare briefs on immediate legal reform needs and the shape and nature of required “Next Generation” national environment laws. 13