A company connected to the former federal energy minister Angus Taylor that was ordered to restore critically endangered grasslands was asked to do less than would have been required if it had sought approval before it poisoned them.
The federal environment department’s efforts to reach an agreement with Jam Land to compensate for the 28.5 hectares of clearing on a property in the New South Wales Monaro region are revealed in new documents released to Guardian Australia after a four-year freedom of information battle.
There is no suggestion any compliance staff in the department acted inappropriately or the remediation measures proposed differed to those applied in other rural land-clearing cases, particularly those where the alleged breach was not intentional.
Rather, the material released to Guardian Australia after a decision by the Office of the Australian Information Commissioner gives rare insight into how environmental regulation and breaches are managed. This comes as parliament prepares to debate a proposal to establish a new environmental protection authority, which would be responsible for compliance and enforcement.
The Jam Land case was controversial because Taylor sought meetings in 2017 with senior environment officials and the office of the then environment minister, Josh Frydenberg, about the laws that protected the grasslands – known as the natural temperate grassland of the south-eastern highlands – while the investigation was under way.
The grasslands are one of the most endangered ecosystems in Australia and Jam Land was accused of spraying them with herbicide without approval under national environmental laws.
Taylor held shares in Jam Land via his family company Gufee and his brother, Richard Taylor, was one of Jam Land’s directors.
Angus Taylor has repeatedly stated he “did not make any representations to federal or state authorities” in relation to the investigation.
It took the department three and a half years to close the case, issuing Jam Land with a remediation order in 2020 to restore 103 hectares of grasslands on a different part of the property. The order was upheld by the federal court on appeal.
Dozens of documents shed light on tireless work by compliance officials from the federal environment department to try to reach an agreement with Jam Land throughout 2017. Simultaneously, other areas of the department were coming under political pressure about the listing of the grasslands, which protected the ecosystem under national laws.
Correspondence shows officials hoped to reach an agreement on an “offset proposal” to compensate for the clearing. But Jam Land felt this expectation was “onerous” because an expert had assessed the planned weed control for compliance with separate state laws and the company was unaware of the federal listing.
But letters the compliance officials wrote to Jam Land stated the department’s proposal was a lower threshold than the company would have been required to meet if it had sought approval and offset the clearing of the threatened habitat as required under national laws.
Documents show officials used the national offsets calculator – a numerical tool that weighs the effects of clearing threatened habitat against the benefits of a proposed offset to compensate for it – to help determine what remediation was required.
In an August 2017 letter to Richard Taylor, a compliance official wrote that the department had used “particularly generous” numbers to arrive at a proposal that would require the company to preserve 103 hectares of grasslands on the property and 91 hectares of woodlands. This included woodlands not listed for protection under national laws.
“I note that the inputs into the offsets assessment guide are particularly generous, and would not normally be accepted in an assessment process,” the official wrote.
“As a result, the outcome of this assessment has arrived at a suitable offset that is of a value that is lower than would have been required, had the action been referred for approval.
“This includes consideration of woodlands including woodlands not protected by the Environment Protection and Biodiversity Conservation Act, as an offset for significant impacts to a critically endangered grassland ecological community.”
Later in 2017, the case appeared to stall until early 2019 when compliance officials contacted the company again, by which stage the National Farmers’ Federation had become involved.
Despite Jam Land’s objections the proposal was onerous, compliance officials pushed on and the final remediation order issued in 2020 was for the restoration and protection of the 103 hectares of grasslands for a six-year period.
The director of the Biodiversity Council of Australia, James Trezise, said the detail and processes in the documents sent “a very worrying signal”.
It was concerning, he said, for the department to require an outcome for a compliance action “which seems less than what would have been required had someone gone through the formal assessment processes”.
“It undermines environmental outcomes and is also unfair to all the businesses who legitimately go through the proper assessment pathways to get approval,” he said.
“If we are to tackle Australia’s extinction crisis and restore trust in our national nature laws, then there needs to be stronger penalties against breaching the law and an independent regulator to enforce them.”
Chris McGrath, an environmental lawyer and regulation expert, said the material showed how difficult environmental regulation could be.
“The department had to balance a whole range of factors,” he said.
“Public interest is generally the overarching consideration and that includes remediating the harm that was done and deterring similar conduct in the future.”
He said the decision appeared a “reasonable outcome”.
The Albanese government has been under pressure from the Greens, the Coalition and crossbenchers to introduce a promised broader package of legislation to overhaul Australia’s broken nature laws.
Reforms have been delayed until after the next election but a bill to establish the regulator could be debated in the Senate as soon as this week.
In a bid to secure passage of the legislation, Anthony Albanese has said the government was considering watering down the proposal by abandoning a plan to allow the regulator to handle development proposal decisions – meaning an EPA would focus solely on compliance and enforcement.
Dr Megan Evans, an expert on environmental offsets and senior lecturer at the University of NSW in Canberra, said officials appeared to have worked hard to secure an environmental outcome “with the legal and policy tools available”.
She said it was understandable the department sought an administrative response given the high costs of court action.
Evans said, ultimately, Australia’s nature laws did not “have sufficient teeth to adequately respond to illegal clearing of threatened ecosystems”.
“When it ends up being cheaper to illegally clear and provide an inadequate ‘offset’ as remediation rather than follow the law, it’s a clear sign the law is broken and needs urgent reform,” she said.
An environment department spokesperson said “how the department works through a matter and applies outcomes is specific to the circumstances of each case”.
“The department continues to monitor the work done by Jam Land to ensure compliance with the remediation determination,” they said.
Guardian Australia has sought comment from Jam Land.
