Juli Tomaras, Law and Bills Digest Section
The Environment Protection Biodiversity and Conservation
Act 1999 (the Act) establishes a legal framework to,
among other things, provide for the protection and management of
nationally and internationally important flora, fauna, ecological
communities and heritage places, defined in the Act as
‘matters of national environmental significance’ (NES).
The Act lists eight matters of NES, whose importance lies in the
fact that proposed actions, which are likely to have a
‘significant impact’ on any of the listed matters of
NES, may require assessment and Commonwealth approval prior to
commencement. Similarly acting as a trigger, approval is required
for any action that takes place on, or is likely to affect
Commonwealth land, in terms of having a ‘significant impact
on the environment’. The list of matters of NES may be added
to by way of regulation.
Review of the Act after ten years of operation
The statutory independent review was undertaken by Dr Allan
Hawke, who was supported by a panel comprising Professor Tim
Bonyhady, Professor Mark Burgman, Paul Stein and Rosemary Warnock.
In addition to examining the operation of the Act and the extent to
which its objectives had been achieved, the review assessed the
appropriateness of current matters of NES, as well as the
effectiveness of the biodiversity and wildlife conservation
arrangements set out in the Act.
The final Report of the Independent review of the Environment
Protection and Biodiversity Conservation Act 1999 (The Hawke
Review) was tabled by the Environment Minister on 21 December 2009.
The Hawke Review made 71 primary recommendations, which were
informed by feedback from professionals and the broader community.
Public comments were broadly supportive of the Act and there was
general agreement that the Commonwealth has a legitimate and
central role in regulating impacts on matters of NES and protecting
Australia’s environment.
The Government provided an undertaking that it would consider
the findings of the review, though declining to commit to a
recommended greenhouse gas trigger. However, the improved position
of the Greens in the Senate may temper this stance, and inspire a
willingness to be more broadly receptive to amendments designed to
effectively deal with greenhouse gas issues.
The Hawke Review recommended an integrated reform package
revolving around nine core elements. Some of the core elements are
described below.
Modernising and making the Act more usable
The Hawke Review proposed redrafting and restructuring the Act
to:
- better reflect the Australian Government’s role,
streamline approvals, and clarify arrangements earlier in the
planning process
- make more effective use of strategic assessments, bioregional
planning and approvals
- remove unnecessary duplication of process, and
- simplify language and rename it the Australian Environment
Act.
New matters of national environmental significance
Other proposals were to create a new matter of NES for
‘ecosystems of national significance’, and introducing
an interim greenhouse trigger, with a threshold of at most 500 000
tonnes of carbon dioxide equivalent emissions, which would cease on
commencement of a Carbon Pollution Reduction Scheme.
Establishing an independent National Environment Commission and
Commissioner
This recommendation emerged in response to a general
dissatisfaction with the confidence in the quality and independence
in decision making. It is envisaged that the Commission would take
on the functions of providing the Government with independent
expert advice on project approvals, strategic assessments,
bioregional plans and other statutory decisions. It may also
perform the role of monitoring, compliance and auditing activities
under the Act.
A more efficient Environmental Impact Assessment Regime
In advancing this goal, the Review committee felt that more
strategic policy guidance needed to be developed to better clarify
what may constitute a significant impact on a matter of NES.
The issue of access to environmental data and information and
the desire to increase confidence in the quality of decisions was
also raised in this context. The assessment and approvals process
involves the Minister relying (at least in part) on information
provided by the proponent and environmental consultants. In view of
this, the development of an Industry Code of Conduct was
recommended for consultants supplying information for the purposes
of the environmental impact assessment and approval under the
Act.
Strategically widening the Minister’s power
This would better enable the Minister to:
- make decisions in accordance with environmentally sustainable
development principles
- be able to consider the impacts on all protected matters
affected by the project, notwithstanding their significance
- take into account the ‘whole of the environment’ in
deciding whether to approve an action, and
- have sufficient authority to seek information on project
alternatives.
Accessibility of information and transparency of
decision-making
It was recommended that in the interests of transparency and
confidence in decision-making, the advice from the Act’s
statutory advisory bodies should be made publicly available at the
time the Minister makes the relevant decision. This would include:
audit reports, expert reports taken into account by the Minister
when making the decision, and statements of reasons for all
decisions made by the Minister.
Review mechanisms and access to the courts
A recurrent complaint raised in public submissions was the
limited number of decisions under the Act that can be the subject
of merits review. Environmental groups were particularly concerned
that in practical terms, the availability of judicial review was a
rather ineffectual tool where the decision is (allegedly) flawed
from a policy, rather than legal, perspective. However, the report
recognised that the Act seems to be geared towards delivering
timely threshold decisions as to whether a project triggers the
assessment and approval process under the Act, and that the
application of merits review in such cases may have a delaying
effect.
Taking into account both perspectives, a recommendation was made
that merits review should be extended to decisions by the Minister
as to controlled actions and also as to the assessment process.
Furthermore, legal standing should be extended to include all
persons who make formal public comment during the decision-making
process. Finally, orders for security for costs and party-party
costs should be limited in such public interest proceedings.
Library publications and key documents
Department of Sustainability, Environment,
Water, Population and Communities, Independent review of the
Environment Protection and Biodiversity Conservation Act 1999,
http://www.environment.gov.au/epbc/review/publications/final-report.html