Leaked Minerals Council paper reveals major issues with Albo’s ‘secret’ Nature Positive overhaul of green laws

The Albanese Government is on a collision course with Australia’s biggest resources companies over its controversial plans to “radically” change environmental laws.

Industry warns the proposed changes will drastically reduce investment and impact other sectors from tourism to housing projects.

The legislation overhaul could also increase fines paid by companies to almost $1 billion, according to a leaked briefing paper by the Minerals Council of Australia, obtained by The Nightly, that was authored after the “third of four lock-up sessions” between government and industry.

Dated February 23, the paper outlines a number of “key new issues” while also maintaining that the council’s “overarching concerns” had still not been addressed despite being raised previously with the Government.

The key issues raised in the briefing note are significant and range from “perverse” new financial penalties to expanding the scope of heritage areas.

One “significant concern” is rewriting the “ministerial call-in” aspect of the current Environmental Protection and Biodiversity Conservation Act.

“The Minister has the power to call in any decision, but a proponent’s application must first be ‘accepted’ by the EPA. After a Minister calls in a decision, the EPA retains certain powers, such as the ability to return an application,” the briefing note states.

“There is a risk that applications will be repeatedly rejected by the EPA.”

The briefing note also warned the revolving door process “places the EPA and the Minister into potential conflict”.

The council’s briefing note on the proposed overhaul said the Albanese Government’s proposed “Nature Positive” environment laws would adjust penalties “to align with … financial crime”.

“Penalties will be based on a percentage of revenue (notionally 10 per cent) significantly increasing the maximum penalty to over $800 million,” it said.

“This … would significantly increase the risk exposure for companies, especially larger companies.”

The council said it was pressing for “proportionality in penalties” otherwise there would be “perverse outcomes” that “impact investment”.

A review of the EPBC, introduced by then prime minister John Howard in 1999, by former Australian Competition and Consumer Commission chairman Graeme Samuel in 2020 found the laws were ineffective and increased the cost to business without adequately protecting the environment.

Environment Minister Tanya Plibersek announced an overhaul of the EPBC in December 2022 and promised to strengthen environmental protections, slash red tape and speed up decision-making times.

One source said the biggest issue with the Albanese Government’s planned “Nature Positive Plan” was that it was being done in “secrecy”.

“They think they can redesign one of the most complex pieces of federal legislation without engaging properly … whether with miners or Indigenous communities or mum and dad tourism operations,” they said.

A spokesperson for Minister Plibersek said the department was undertaking a thorough consultation process on the proposed environmental law overhaul.

“Feedback from environment groups and business on these draft laws will be considered as part of our rolling consultation process,” she said.

The industry source said the current EPBC Act took nearly a decade to create and the Albanese Government wanted to replace it with a new act in less than 18 months.

The source said it would make Australia even less productive at a time when it has never been more important for the country to be price-competitive.

The Minerals Council document suggests that new laws will even require a “new offsets calculator” and the object of the Act will also include a reference to “responding to climate change”.

The scope of heritage matters has been increased to include “non-contiguous” matters.

It says the final lock-up with industry is planned over March 27-28.

Despite industry believing the EPBC Act overhaul is incredibly significant, there has been little noise about the changes from Ms Plibersek.

An eight-sentence media release in October last year said consultation would start soon.

“The new laws are complex. The whole package will run to over 1000 pages. This early consultation will help make sure we get the detail right,” she said.

“We’ll keep working with stakeholders to get the laws ready for introduction into the Parliament next year.

“The Albanese Labor Government is getting on with (the) job of fixing Australia’s environment laws so they better protect the environment and give faster, clearer decisions for business.”