Regulatory arrangements at all levels of government
...threatened species laws in all jurisdictions need to be
reviewed, strengthened, and fully resourced and implemented...no State or
Territory has a good track record of adequately resourcing or effectively
implementing and enforcing their threatened species laws.
This chapter discusses issues raised during the committee's inquiry relating
- state and territory regulatory arrangements in relation to
threatened species and ecological communities, including the role and record of
state and territory governments; and
- environmental assessment processes where developments impact on
threatened species and ecological communities
Role of state and territory governments
The committee heard that there are concerns about the role of state and
governments in relation to threatened species and ecological communities, especially
proposals for approval powers under the EPBC Act to be delegated to state and
This issue was considered in detail by the inquiry into the EPBC Amendment
(Retaining Federal Approval Powers) Bill 2012.
The committee does not intend to re-examine the issues raised during
that inquiry. However, the committee notes that many of the submissions to this
inquiry highlighted the importance of the Commonwealth playing a strong leadership
role in relation to nationally listed threatened species and communities.
Further, the committee notes that the submission to this inquiry from ANEDO
contained a comprehensive review of threatened species laws in all
jurisdictions and concludes that 'threatened species laws in all jurisdictions
need to be reviewed, strengthened, and fully resourced and implemented'.
The ANEDO review was widely cited by many other submissions.
For example, ACF recommended that 'a comprehensive review of biodiversity
protection law at the state and federal level is required on an urgent basis,
to implement best practice standards and adequately fund their implementation'.
As Ms Rachel Walmsley of ANEDO told the committee:
No state or territory meets all the core requirements of best
practice threatened species legislation. While the laws in some jurisdictions
look good on paper, they are not effectively implemented. There are a number of
important legislative tools available for managing and protecting threatened
species that are simply not used. Key provisions are often discretionary;
critical tools such as recovery planning and threat abatement plans are not
mandatory; timeframes for action and performance indicators are largely absent.
Effective implementation is further hampered by a lack of data and knowledge
about the range and status of biodiversity across Australia.
Ms Walmsley further told the committee that 'there is poor integration
between threatened species laws and other natural resources management laws in
most jurisdictions'. She then gave an example:
For example, in New South Wales there are 14 pieces of
legislation that affect biodiversity and there are nine additional government
policies, which must be confusing for any developer or land owner. And that is
just New South Wales. There is some streamlining that can be done, but it is
not about reducing protections for threatened species. It is about identifying
the threats to the threatened species and integrating natural resource
management laws, planning laws and threatened species laws so that they are
The committee also heard, by way of example, that threatened species
legislation in Western Australia is out-dated.
The recently re-elected Western Australian government has committed to
introducing new legislation to replace the Wildlife Conservation Act 1950 (WA)
'as a matter of priority'.
However, Dr Burbidge was sceptical, observing that this was 'probably the
fourth election campaign I can recall where that promise has been made'.
ANEDO urged that Western Australia 'should implement best practice legislation as
a matter of urgency'.
Despite this, Professor John Woinarski observed:
Some states, particularly Western Australia, have done
remarkably good jobs in terms of threatened species management. Others have
been less good. But across all Australian states I think that the resourcing
and the capability are diminishing.
Professor Woinarski believed that 'in many cases the state agencies do
have better on-ground knowledge of the situation than those based in Canberra'.
Dr Burbidge agreed that 'on-ground conservation of land and species' is
largely done by state conservation agencies:
Most progress in conserving threatened species has been the
result of State and Territory initiatives. In most cases, it is clear what
science and management actions are required; the limitation is resources. State
and Territory governments, like the Commonwealth, have allocated limited
resources to threatened species conservation.
However, BirdLife Australia called for 'improved collaboration and
coordination among states', particularly for the management of species that
require actions to occur in to or more states.
SEWPAC's submission also emphasised the need for collaboration across
As responsibility for the environment is shared between all
levels of government, effective protection of threatened species and ecological
communities requires close collaboration with state and territory governments.
Hence, the Department continues to foster partnerships with the states and
territories in order to effectively deliver all of the statutory and
non-statutory protection measures for threatened species and ecological
communities. Key examples of co-operation include through: EPBC Act strategic
assessments; streamlined and more consistent listing assessments; recovery plan
development and implementation; building the NRS [National Reserve system];
delivery of Caring for our Country; coordinated efforts in conservation seed
banking; and implementing national biodiversity policies and frameworks.
State and territory management of
Concerns were raised during the committee's inquiry in relation to state
government management of 'national' parks and potential impacts on threatened
species and communities.
The committee notes that the title 'national park' is somewhat of a misnomer as
the vast majority are managed by states and territories.
As the National Parks Australia Council (NPAC) observed, 'national parks
are not national at all but managed according to a wide range of legislative
measures, objectives, priorities and management systems'. They were concerned
that 'despite their key role in conservation, national parks have become the
subject of political horse-trading. The Council claimed that respect for their
role in conservation of biodiversity is at an all-time low'.
Dr Andrew Burbidge described national parks and reserves as 'the jewel
in the crown for looking after our threatened species', but noted that the
primary responsibility for these rested with state conservation agencies.
WWF-Australia agreed that the states play an important role:
The states have also been the main engines of expansion of
the national parks system, with commonwealth assistance through the National
Reserve System program, with major benefits for threatened species.
However, concerns were raised at recent funding and staff cuts by
various state governments, particularly in environment departments and parks
For example, the committee heard that 300 staff had been lost from the
Department of Environment and Resource Management in Queensland, including the
loss of key staff in the area of threatened species.
Mr Andrew Heaver expressed support for government conservation staff:
My experience with staff from various conservation-related
governmental agencies has been overwhelmingly positive. I feel assured that the
staff of those agencies are highly skilled, and enthusiastically committed to
the task at hand. It is highly unfortunate that these agencies are currently
facing severe financial and personnel pressures, because I feel confident that
these agencies could achieve results that Australia could be incredibly proud
of, if they were to remain well‑resourced and well-staffed.
Professor David Lindenmayer similarly observed:
...there are several good examples of effective conservation
management when good staff are retained and funding levels are appropriate. For
instance, biodiversity management and monitoring in Booderee National Park in
the Jervis Bay Territory...and woodland conservation on private land under the
Australian Government's Environmental Stewardship Program.
In this context, many submissions stated their opposition to state
government proposals to allow recreational shooting in national parks as a
means of controlling feral animals.
NPA NSW stated that recreational hunting 'poses a range of safety and animal
welfare concerns, and has been shown to be ineffective as a means of feral
In contrast, the Australian Deer Association recommended that relevant
legislation be amended to enable accredited conservation hunters to control
feral animals in all national parks, wilderness areas, world heritage areas,
conservation areas and other protected areas in Australia.
Concerns were also raised about recent state government proposals to
introduce livestock grazing to national parks.
For example, several submissions mentioned the proposal by the Victorian government
to reintroduce cattle to the Alpine National Park in Victoria, which was
determined to be unacceptable under the EPBC Act and did not proceed.
Several submissions suggested that this demonstrated the need for Commonwealth
oversight in terms of approvals powers under the EPBC Act.
NPAC suggested that national parks should be made a matter of national
environmental significance under the EPBC Act 'because of their importance to
the overall conservation of biodiversity'.
Finally, the committee heard concerns that recreational demands for
national parks are being given priority over nature conservation, resulting in
a diminished level of protection for threatened species and ecological
communities. It was suggested, for example, that recreational uses such as
horse riding, mountain biking and 4WDs intensify threats to threatened plant
species and ecological communities.
For example, the Clarence Valley Conservation Coalition expressed its
The National Parks estate plays a critical role in providing
sanctuary for threatened species. Yet this estate in NSW is increasingly
threatened by the demands of interest groups seeking approval for inappropriate
activities in these reserves – activities which are inimical to the core
function of biodiversity conservation.
Similarly, the Hunter Bird Observers Club suggested that national parks
are 'often managed to meet the requirements of recreational stakeholders whose
activities are detrimental to threatened species and their habitat'. The Club
gave the example of Stockton Beach, north of Newcastle, where they said that the
breeding failure of Australian Pied Oystercatchers is due to vehicular traffic
along the beach.
Other issues raised relating to the role of state governments included:
- concerns about proposed reforms to state vegetation clearing
forestry practices in state forests and the regional forest
agreement (RFA) exemption in the EPBC Act.
These are discussed further below.
Vegetation clearing legislation in
state and territories
As outlined in Chapter 3, the committee received evidence that controls
on land clearing introduced by state and territory governments in recent years
seem to have made an impact in relation to habitat loss and fragmentation. For
example, WWF-Australia argued that:
...the states have played an important role over the last
decade in passing various vegetation protection laws. These have had a dramatic
effect on reducing direct habitat destruction.
Similarly the Queensland Minister for Environment and Heritage
Protection submitted that the introduction of legislation to end broadscale
clearing in Queensland 'was a major step forward for the protection of
threatened species and communities'.
However, several submissions expressed concerns about state vegetation
clearing legislation, including recent or proposed reforms.
For example, Dr Adrian Manning noting that 'potential nest trees for the superb
parrot are on a trajectory of decline', expressed concern that some of the
proposed changes to state vegetation clearing legislation 'could have serious
negative consequences' for the super parrot and other species dependant on
hollow bearing trees.
Forestry and the RFA exemption
The committee received numerous submissions expressing concern about forestry
practices in state forests, and the RFA exemption in the EPBC Act.
Under section 38 of the EPBC Act, forestry operations undertaken in
accordance with an RFA are not subject to the environmental assessment and
approval provisions in Part 3 of the EPBC Act.
Submissions expressed concern that forestry operations pose a serious threat
to a number of threatened species, such as koalas;
the Leadbeater's possum;
and tiger quolls.
In particular, there was concern that there has been non-compliance with RFAs, as
well as difficulties in enforcing RFAs.
It was therefore suggested that the exemption in section 38 of the EPBC Act
should be removed.
The removal of section 38 would mean that Part 3 of the EPBC Act would apply to
forestry operations and 'the Commonwealth would need to approve logging of
threatened species habitat in advance of it occurring'.
The inquiry in 2009 into the operation of the EPBC Act by this
committee's predecessor, the Senate Standing Committee on Environment,
Communications and the Arts, considered in great detail the interactions
between RFAs and the EPBC Act. That inquiry recommended that the Hawke review:
...recommend proposals for reform that would ensure that RFAs,
in respect of matters within the scope of Part 3 of the EPBC Act, deliver
environmental protection outcomes, appeal rights, and enforcement mechanisms no
weaker than if the EPBC Act directly applied.
Subsequently, Chapter 10 of the Hawke report considered RFAs and the
EPBC Act, and made recommendations 38 and 39 to address the issue. In summary,
recommendation 38 recommended that the provisions of the EPBC Act relating to
RFAs be retained, but 'be subject to rigorous independent performance auditing,
reporting and sanctions for serious non-compliance'.
Recommendation 39 proposed the Commonwealth government work with the states to improve
the independence of compliance monitoring; and develop processes to make
publicly available information about the number and nature of complaints about
RFA operations and the results of any investigations.
The government response to the Hawke review agreed with
recommendation 39 and agreed in part to recommendation 38, noting the
concerns raised about the operation of RFA, but stating that:
The government remains committed to RFAs as an appropriate
mechanism for effective environmental protection, forest management and forest
industry practices in regions covered by RFAs. The government is also committed
to working with state governments to improve the review, audit and monitoring
arrangements for RFAs, including their timely completion, and to clearer
assessment of performance against environmental and sustainable forestry
These improvements will inform the consideration of RFA
renewal processes. The government does not agree to the recommendation to
change section 38 of the Act, as the existing mechanisms for continuous
improvement contained with the RFAs can be used to achieve ecologically
sustainable forestry outcomes.
Environmental assessment processes
This section discusses concerns raised in relation to environmental
impact assessment processes where developments impact on threatened species and
ecological communities. The focus is primarily on environmental assessments
under the EPBC Act, however, some of the concepts discussed are equally
applicable to state or territory environmental impact processes.
The committee notes that the majority of actions requiring assessment
and approval under the EPBC Act have been triggered by potential impacts on
listed threatened species or ecological communities.
Two key issues raised during this inquiry relating to environmental
assessment and approval processes included:
- dealing with cumulative impacts; and
- use of environmental offsets.
Other issues raised relating to environmental assessment and approval
- difficulties identifying threatened species and ecological
- adequacy of assessment documentation;
- cost recovery proposals;
- transparency and accountability; and
- monitoring, compliance and enforcement.
These issues are discussed in turn below.
Several submissions expressed concern about the cumulative impacts of
developments on threatened species and communities.
As Professors Lee Godden and Jacqueline Peel explained:
A cumulative impact is understood as ongoing, progressive
environmental degradation caused by the combined effects of multiple projects
in an area. Although each project is individually assessed, the collective
effect is commonly described as 'death by a thousand cuts' and it is a major
cause of biodiversity loss.
However, many believed that environmental assessment processes,
including under the EPBC Act, do not adequately address cumulative impacts.
Indeed, the Wentworth Group of Concerned Scientists stated that:
The major flaw of the environmental impact assessment regime
of the EPBC Act is that it does not effectively manage the cumulative impact of
multiple developments on these species and communities.
Dr Greg Clancy agreed that a major problem with the EPBC Act and similar
legislation is that it relies on whether or not there is likely to be a
'significant impact' on threatened species. He noted that:
The loss of small areas of threatened species habitat may
not be significant in themselves but added to all of the other losses around
the country may well add up to a serious decline in threatened species habitat
and the species themselves.
Others echoed these concerns:
...no consideration is given to the cumulative impact of
multiple developments...While the risks associated with any one project may
appear reasonable with maintaining sufficient habitat to sustain the future of
a threatened species this may not be the case at the landscape scale. The
cumulative impact of multiple projects may result in habitat fragmentation to
an extent where there is insufficient connectivity to ensure the survival of
For example, it was submitted that while 'individual instances of
habitat loss are often considered to be small...cumulatively they represent the
main threat to the persistence' of the south-eastern red-tailed black cockatoo.
Ms Alexia Wellbelove from HSI gave the example of the Cumberland Plain
Woodlands ecological community. It was initially listed in 'endangered'
category, but was subsequently upgraded to 'critically endangered'. She argued
that this upgrade 'was mostly due to cumulative impacts on that community'
and lamented that:
...if we are not able to consider cumulative impacts under our
legislation, then we are really missing out on the bigger picture.
Submissions therefore suggested that there was a greater need to
consider cumulative impacts on, and to incorporate them into decision-making in
relation to, threatened species and ecological communities.
The Wentworth Group of Concerned Scientists put forward a proposal to
improve environmental assessment standards and to better address cumulative
impacts, in part through greater use of regional environmental plans and/or
strategic assessments using existing provisions in the EPBC Act.
WWF-Australia also supported of the use of bioregional plans:
Comprehensive, cooperatively designed bioregional plans could
provide adequate protection for all state and federal listed environment
matters, define no go areas, areas for further assessment and areas
pre-approved for particular types of development, with strong scientific
support, that would satisfy the planning requirements of all three levels of
The committee notes that the Hawke Review recommended that the Commonwealth
government 'expand the role of strategic assessments and bioregional plans so
that they are used more often; and strengthen the process for creating these
plans and undertaking these assessments, so they are more substantial and
The Commonwealth government's response agreed to this recommendation.
SEWPAC submitted that it is increasingly using 'landscape wide'
strategic assessments and bioregional planning 'to identify important areas of
habitat for threatened species and ecological communities as part of the
development assessment process'.
SEWPAC further outlined that:
The Department has already either completed or begun several
strategic assessments to address threats affecting species and ecological
communities at a landscape scale. Importantly, these strategic assessments
allow for cumulative impacts on threatened species and ecological communities
to be more effectively dealt with, as well as encouraging protection
considerations earlier in planning processes. Approaches to the use of this
mechanism are continually being refined.
The committee notes that a number of strategic assessments are currently
underway under section 146 of the EPBC Act.
There was some support greater use of strategic assessments and regional
environmental plans—subject to certain safeguards—to deliver better outcomes.
For example, Professors Godden and Peel explained that:
Strategic Assessments assess the environmental consequences
of a policy or plan, rather than a specific project. They provide a mechanism
to approve classes of development across a region. They thus negate the need
for EIA's, which are only necessary where strategic assessments and bioregional
plans are not in place and where proponents wish to undertake development that
is not covered by accredited plans.
However, they also cautioned that:
...strategic assessment should not be treated as providing
'blanket zones' for development that does not allow more finely graded
assessments and approvals to operate in respect of threatened species and
Others were quite critical of the use of strategic assessments. Some were
concerned that strategic assessments are being used 'primarily to establish a
blueprint for development'.
For example, NPAC argued that:
...the current move towards strategic assessments a tool for
more strategic Federal involvement is failing at the first tests. This approach
is based in a fundamental misconception that higher level strategic planning
can adequately substitute for specific case-by-case assessment of proposals.
Experience t[o] date has shown that State/Federal co-operation is not improved
by this strategy and that environmental outcomes are more at long term risk
under such an assessment than under a case-by-case assessment.
NPAC gave the example of the Melbourne Urban Growth Boundary Strategic
Assessment under the EPBC Act, raising concerns about non-compliance, lack of
independent monitoring, inadequate consultation and inadequate protection for
matters of national environmental significance. NPAC alleged that:
The process has been a windfall for the property development
industry, who not only get their approval process and assessment undertaken by
the tax payer (including $3-5 million of government funded environmental
surveys), but also get a upfront or umbrella regulatory approval – bankable for
decades (up to 40 years).
NPAC concluded that the strategic assessment process 'is not fulfilling
its key role of protecting endangered species—in fact it may be worse than the
previous regulatory frameworks'.
Others suggested that the Melbourne strategic assessment process should be reviewed
and evaluated before the strategic assessment process is used anywhere else in
Recent strategic assessments undertaken under the EPBC Act in relation
to urban development in the ACT were also discussed. It was felt that some
elements were positive, for example, the requirement for a buffer between
housing and a high quality woodland area. However, the Canberra Ornithologists
Group concluded that 'for the most part, environmental outcomes have been
Friends of Grasslands expressed qualified support for strategic assessments
undertaken in the ACT noted that they 'have been useful', but warned that their
long term impact 'in terms of an improved conservation outcome is still to be
Some suggested that the process relating to strategic assessments under
the EPBC Act needs to be strengthened. For example, Ms Claire Parkes from the
Wentworth Group of Concerned Scientists acknowledged that:
...there have been quite a few concerns with some strategic
assessments which have been done...they need to be improved and strengthened in
law. One specific thing is that there needs to be a requirement that the
strategic assessments include an assessment of whether the development which is
going to occur in that area is going to improve or maintain environmental
outcomes. That provides a much stronger test of whether the development is
going to be good for the environment or not.
ANEDO agreed strategic assessments have the potential to redress the
problem of cumulative impacts, but argued that 'the process for strategic
environmental assessment needs to be strengthened within the EPBC Act'.
They noted that 'the process at present seems implicitly focused on
streamlining and reducing the regulatory burden rather than on achieving the
best environmental outcomes'.
Mr Brendan Sydes from ANEDO described strategic assessment as 'the only
credible way of dealing with that death by a thousand cuts phenomenon—the
cumulative impacts', but warned that:
While a strategic impact assessment can be a good way to lock
in a good outcome for the long term, it is also a good way to lock in a bad
outcome for the long term. The way they are sold is that they give everyone
certainty. But you also need to reserve a certain degree of flexibility to
cover the fact that new information might be uncovered...
Professors Godden and Peel suggested that:
Consideration might be given to strategic assessments which
adopt a landscape ecology approach and which identify priority conservation
zones where the case for development might involve the precautionary principle,
such that where there is a risk of irreversible harm this alters the burden of
proof to one where the development needs to discharge a 'no harm' threshold.
The committee notes that in 2011 SEWPAC released 'a guide to undertaking
This guide states that the strategic assessment should use four mechanisms 'to maximise
beneficial outcomes' for matters of national environmental significance. The
four mechanisms are (1) avoidance of impacts; (2) mitigation of potential
impacts; (3) application of environmental offsets where impacts can't be
avoided or mitigated; and (4) ongoing 'adaptive management'. The guide goes on
to state that avoiding impacts to matters of national environmental significance
'is the highest priority'.
Use of offsets
Submitters also raised the use of biodiversity 'offsets' and concerns
about their potential to adversely impact on threatened species and
It was noted that offsets are '...not specifically addressed within the EPBC Act',
but their use 'has developed as an administrative practice over a number of
In October 2012, SEWPAC released a policy guiding the use of offsets
under the EPBC Act, in order to provide 'transparency around how suitable
offsets are determined'. 
This policy describes offsets as:
...measures that compensate for the residual impacts of an
action on the environment, after avoidance and mitigation measures are taken.
Offsets provide environmental benefits to counterbalance the impacts that
remain after avoidance and mitigation measures...Offsets can help to achieve
long-term environmental outcomes for matters protected under the EPBC Act,
while providing flexibility for proponents seeking to undertake an action that
will have residual impacts on those protected matters.
Dr Martine Maron observed that environmental offsets 'are increasingly
being used in an attempt to reconcile development and conservation'. However, Dr
Maron submitted that her research indicates offsetting the loss of biodiversity
in one place with a gain elsewhere has had 'limited success to date'.
Professors Godden and Peel noted that there is 'considerable research
that has examined whether offsets can effectively compensate for biodiversity
loss'. However, they argued that:
More research is needed into the long-term repercussions of
the practice of offsetting on biodiversity protection and how this practice
aligns to measures such as conservation planning. More careful monitoring over longer
time spans is required to ensure that offsetting where it does occur continues
to achieve the biodiversity protection objectives in the long term.
Professors Godden and Peel recommended that:
...the 'practice' of offsetting as a condition on approvals of
developments be re-examined with a view to ensuring that higher order
biodiversity protection measures such as [avoiding] or minimising the loss be
given greater priority.
Some described offsets as 'deeply flawed' or 'totally inadequate'.
Others suggested that the use of biodiversity offsets be prohibited where any
threatened species and communities are involved.
Some argued that biodiversity offsets effectively sanction, rather than avoid,
habitat destruction and should only be used as a last resort.
Others cited concerns about the long-term management of offsets.
For example, the Urban Bushland Council WA complained that:
Loss of habitat of a threatened species simply cannot be
replaced as complex ecosystems cannot be replanted or recreated in a new
location. There is always a net loss of habitat and therefore the concept of
offsets is fundamentally flawed on ecological grounds.
Professor Godden also expressed alarm at the 'proliferation of offsets'.
...the first step should be avoiding harm, keeping threatened
species and ecological communities intact where possible. After that, offsets
should only be used where necessary and feasible. I have concerns that they are
being used in the first instance and we are not giving sufficient attention to
that first step: avoiding the harm where possible...offsets are becoming the more
convenient way to balance development interests and environmental protection.
We need further investigation and research in this area, particularly in
respect of compliance issues in terms of offsets.
WWF-Australia provided a statement made with other organisations in a
letter to the former Minister for Environment Protection, Heritage and the
We have strong reservations about a national biodiversity
banking scheme and the use of biodiversity offsets. If an action has a
significant impact on a MNES [matter of national environmental significance]
then it should not be approved, rather than attempts made to offset the impacts
in ways that are uncertain and unreliable. The scientific literature shows that
offsetting schemes have generally not met their aspirations in practice. We
oppose general adoption of offsets until empirical research on pilot programs
proves they actually result in improved species recovery through the course of
The NFF had a slightly different perspective on the use of offsets. They
suggested that there might be a need to streamline government offset policies,
pointing out that:
...one of the big issues is that with some species there is
nothing left to put in place as an offset. So, if they are looking to do a
development—whether it is on-farm, whether it is mining, whether it is an urban
development—one of the perverse outcomes is that they are seeking agricultural
land to plant back into or to re-establish that community that no longer has
areas that are viable.
In response to questions on the use of offsets, SEWPAC told the
committee that the Commonwealth had brought in its offsets policy late last
year 'after several years of consultation on its development' and that the
concerns that 'many people have with offsets were considered at some length'.
SEWPAC informed the committee that the offsets policy was 'proving useful', by
'giving a clear guide as to how to calculate offsets and when, and how to
determine where they would best deliver the broader ecological and biodiversity
outcome'. This was compared to the past practice which SEWPAC representatives
described as 'ad hoc and project specific'.
SEWPAC told the committee that, up until this offset policy was put in
...it has often been the case that, if they have come through,
for example, state processes or the like, the Commonwealth has not actually
been aware of the offsets that might have been given up. So one of the things
that we are trying to do with our new policy is to standardise the approach to
Commonwealth offsets and to also be able to standardise our monitoring of them
so that we know where they are. We have a project going on in the department at
the moment to sort of go back and try to discover those ad hoc arrangements and
map them so that we know where they actually are in the landscape...It is the
first step to saying whether or not they have had an effect.
However, SEWPAC cautioned that there has not yet been time to evaluate
the 'actual effect of the policy':
It is a new tool to us. It is one that obviously has to be
used carefully; but it is one that we think does give us an additional positive
Identification of threatened
species and communities
The committee heard that the identification of threatened species and
ecological communities poses a challenge in many circumstances. For example,
the NFF submitted that:
...in many situations, the skills and abilities required to
identify species and ecological communities are not capacities that landholders
generally have – these being skills of appropriately qualified scientists.
Anecdotally, the NFF has been informed that there are perhaps only a few such
qualified people in Australian scientific community.
Others agreed that 'failure to recognise a known listed species is a
major problem'. It was noted, for example, that the identification of orchids is
particularly challenging 'due to the deciduous nature of most terrestrial
orchid species and their reluctance to present either leaves or flowers if
conditions are unsuitable in any given season'.
In circumstances where there is uncertainty or lack of information, it
was suggested that the precautionary principle
needs to be more widely applied.
However, others were sceptical of the precautionary principle. For
example, the NSW Council of Freshwater Anglers suggested that instead:
...where lack of scientific certainty exists in respect of
serious concerns as whether a species is likely to undergo decline or as to key
threatening process or similar issues, that Scientific Committees should have
power to recommend key research programmes, and have a budget to commission
urgent critical research.
It is noted that the need for more surveys and data relating to
threatened species was discussed in Chapters 2 and 5.
Adequacy of assessment
Adequacy of assessment documentation was also raised as an issue.
Several submissions were concerned that surveys conducted for environmental
assessment purposes are inadequate and unsystematic.
For example, the Hunter Bird Observers Club expressed the view that 'too often
there is an unrealistic time limit placed on environmental consultants to prepare
environmental assessments, preventing a thorough seasonal analysis of habitat
use by threatened species.
Several submissions were also critical of the process by which the
proponent prepares the assessment documentation, suggesting this could lead to
a conflict of interest. For example, the Hunter Bird Observers Club submitted
This is a situation which places an onus on the consultant to
obtain an outcome which is best for the developer rather than the
environment...Put bluntly, some proponents would find another consultant prepared
to support the development and the environmentally sympathetic consultant would
risk continuity of business.
WWF-Australia suggested that the Commonwealth should commission
'independent, objective, scientific assessments of impacts, funded out of
development application fees'.
Cost recovery mechanisms are discussed further below.
At the same time, it was suggested that information or data collected on
threatened species by proponents during the environmental assessment process
should be collated and made available in publicly accessible databases such as
SEWPAC's National Species Profile and Threat (SPRAT) database.
However, the Nature Conservation Society of South Australia also felt
that there is a need for improved data management and reporting processes for
referral and assessment information under the EPBC Act:
Deficiencies in information management are a barrier to
evaluating the effectiveness of the EPBC Act and the assessment processes. A
recent request made to the EPBC section of the Australian Government for a list
of referrals relating to a listed threatened species, could not be met. The
Australian Government had no ability to search for past referrals relating to
the species (other than by geographic area) and could not provide information
to identify on what evidence referral decisions were made. This information was
requested for the evaluation of a threatened species recovery program and would
have assisted in determining whether the implementation of the recovery program
was effective and appropriate. Failure to provide this information was a
failure to facilitate transparent reporting and evaluation of public investment
in the administration of the Act and in the recovery program.
Cost recovery proposals
The issue of cost recovery in relation to environmental assessment
processes was also canvassed during the committee's inquiry.
The Commonwealth government has proposed the introduction of cost recovery
arrangements for environmental impact assessments and strategic
assessments under the EPBC Act as part of the EPBC Act reform package,
and as recommended by the Hawke review.
A draft Cost Recovery Impact Statement was released for public
consultation in 2012. The committee notes that cost recovery cannot
take effect until the passage of amending legislation and new regulations are
Some were supportive of cost recovery mechanisms. WWF‑Australia
submitted that cost recovery should be a 'key principle of EPBC
BirdLife Australia similarly stated that cost recovery is 'needed to ensure
that the Environment Department is adequately resourced to ensure operation of
the Act and monitor performance'.
In contrast, the NFF expressed concerns about proposals to cost recovery
processes for the EIA process under the EPBC Act.
The NFF argued that the proposals for cost recovery would mean it would cost a
farmer 'around $7,000 or $8,000 just to seek a referral', and that if a farmer
needed approval under the EPBC, this could cost around '$80,000 for a simple
The NFF argued that:
...the vast majority of farmers are prepared to play their part
and are prepared to, as much as possible, try to match productivity and
environmental outcomes on their own property, but not when they are lumped with
the lion's share of the cost burden.
In answers to questions on notice, SEWPAC noted that 'exemption and
waiver criteria for environmental impact assessments were proposed in the draft
Cost Recovery Impact Statement, which include fee exemptions individuals
and small businesses with less than $2 million annual turnover – consistent
with that of the Income Tax Assessment Act definitions for small businesses'.
SEWPAC noted that:
One of the drivers for exempting small business from EPBC
cost recovery was feedback from stakeholders such as the NFF regarding impacts
on the agriculture industry. The agriculture industry currently makes up 0.8
per cent of the 430 referrals the department receives under the EPBC Act per
Compliance and enforcement
Several submissions called for increased resources for enforcement of
threatened species laws. For example, Professors Godden and Peel were concerned
that 'monitoring and compliance are vital, if often overlooked areas' and that:
Greater consideration needs to be given to examining how well
the laws and regulations that seek to protect threatened species and ecological
communities are enforced and how compliance occurs...There have been relatively
few prosecutions under the EPBC Act and there are significant gaps in
Commonwealth monitoring of projects conditions.
They recommended that 'sufficient resources should be made available for
robust long term monitoring and a more proactive approach is given to
Similarly, the ACF called for 'increased resources for adequate monitoring and
enforcement with increased penalties for non‑compliance'.
However, the NFF suggested that, rather than more resources for
compliance issues, more resources were needed to communicate the requirements
of the EPBC Act to farmers and the business community—in line with the
recommendations of the Hawke review.
Some suggested that penalties for breaches of the EPBC Act be increased.
The Nature Conservation Society of South Australia argued that the penalties
'are not high enough as they are unlikely to be sufficient deterrents for large
businesses and in most cases they have fallen short of the real cost of
repairing the damage caused'.
ANEDO noted a number of successful enforcement actions that have been
undertaken under the EPBC Act. It also remarked that the Commonwealth has been
able to seek 'significant penalties' which are 'a critical part of deterrence
in any enforcement and compliance regime'.
Nevertheless, they suggested that resources for enforcement need to be
In terms of enforcement, several submissions also called for enhanced
third party enforcement provisions in threatened species legislation.
For example, ANEDO claimed that:
Threatened species laws are further subjugated in many states
and territories by the absence of third party rights that enable communities to
enforce laws to protect threatened species.
Some further suggested that the community should be able to refer
possible controlled actions under the EPBC Act:
...it is up to the developer to report any significant issues
on their property to do with the EPBC Act. We cannot report it as a controlled
The committee notes that, while third parties cannot formally make
referrals under the EPBC Act, there is nothing to prevent members of the public
from contacting the compliance and enforcement section of SEWPAC
to discuss compliance issues.
Another suggestion was that there needs to be greater monitoring and
enforcement of conditions on approvals.
For example, Mr Jeremy Tager argued that:
Unfortunately, there is little oversight and certainly no
audit of the extent to which conditions imposed on developments have any
beneficial outcomes or have prevented the harms they were intended to prevent.
He was also concerned that:
...conditions of approval are increasingly requiring data and
information that should have been part of the initial assessment and decision
process and not a condition of approval. This includes critical data on both
species and habitats. The notion that this information can be deferred until
after approval is given assumes that all the impacts are manageable.
It also means that less and less work is being done to
determine whether a development should proceed. The process becomes one of
'how' not whether a development can proceed.
In this context, several submissions raised the issue of the approval of
the Paradise Dam in Queensland. One of the conditions of the approval under the
EPBC Act was the construction of a fish transfer device 'suitable' for lungfish
(which are listed as 'vulnerable' under the EPBC Act). It was alleged that
during flood events, large numbers of lungfish have been killed or injured on
the spillway installed on the dam.
It was also reported that the fishways have not been operational since damage was
incurred during recent flood events. As a result, concerns were raised at whether
the fish transfer device is 'suitable' as per the conditions of approval.
Mr Tager was concerned that SEWPAC nevertheless considers that the conditions
of approval have been met.
He argued that this case 'demonstrates serious problems with conditions imposed
on approvals', and that :
The conditions imposed on the proponents were to build
infrastructure that was designed to protect the lungfish. Once the building has
been done, the Department takes no responsibility for how and when or even if
it operates. There is virtually no public enforcement right in the EPBC Act for
conditions imposed nor is there an obligation in the Act that conditions imposed
are effective in meeting their objectives.
He suggested that the EPBC Act be amended so that conditions imposed on
approvals clearly state the purposes and objectives of the conditions.
AFMA also submitted that in relation to conditions on approvals relating
to Commonwealth fisheries:
It should be noted that it is the activity that is subject to
the EPBC Act and not the government regulator (e.g. AFMA). However, EPBC Act
conditions are often written so as to place conditions on the regulator rather
than on the activity which is a legally unsound approach. 
Overlap and duplication in
The committee notes that AFMA raised the issue of overlap and
duplication between fisheries management and assessment functions conducted by
SEWPAC and AFMA. It argued that this overlaps 'creates considerable
inefficiency and uncertainty for both governments and stakeholders,
particularly the Australian fishing industry'.
AFMA explained that Commonwealth-managed fisheries are covered by
separate assessments under Part 10, Part 13 and Part 13A and that 'all of these
assessments consider the effect of fisheries on the marine environment,
protected species and communities and the ability of fisheries management to
minimise the risk of unacceptable impacts':
Moreover, individual species within those fisheries are
separately assessed through nomination as threatened species or the method of
fishing as a Key Threatening Process (KTP). The potential for duplication
and/or inconsistency in decision making is obvious. The subsequent listings of
Southern Bluefin Tuna and Patagonian Toothfish under the EPBC Act when they are
the sole or predominant species in fisheries that had previously passed
strategic assessment under a different part of the EPBC Act are examples of the
perceived inconsistencies of the EPBC Act processes. 
AFMA submitted that this 'multilayered approval process' should be
replaced 'with a single environmental approval process for each fishery'.
The committee notes that this issue was addressed in the Hawke review,
which recommended that the EPBC Act be amended so that 'the fisheries
provisions under Parts 10, 13 and 13A are streamlined into a single strategic
assessment framework for Commonwealth and State and Territory-managed fisheries
to deliver a single assessment and approval framework'.
This was agreed to in principle in the Commonwealth government response to the
AFMA observed that there has been 'apparent inconsistency' in dealing
with threats to Australian sea lions from gillnet fishing across Commonwealth
and state jurisdictions—noting that conditions imposed on South Australian and
Western Australian fisheries are less stringent than the requirements imposed
on the Commonwealth-managed fisheries.
The committee acknowledges the evidence that threatened species laws in
all jurisdictions need to be reviewed. The committee considers that there is merit
in the Australian Law Reform Commission undertaking a full review of threatened
species laws in all jurisdictions, particularly in order to ensure consistency
across jurisdictions and remove bureaucratic obstacles to their successful
The committee recommends that the Australian Law Reform Commission
conduct a review of threatened species laws to ensure effective, comprehensive
and consistent protections are in place across all jurisdictions.
The committee recognises that effective protection of threatened species
and ecological communities requires close collaboration between Commonwealth,
state and territory governments. The committee acknowledges that support was
expressed for the work of state and territory governments in on-ground
conservation work relating to threatened species and ecological communities. At
the same time, the committee notes the concerns raised about recent proposals
in some states, for example, relating to national parks management, and
proposed reforms to state vegetation clearing legislation.
The committee acknowledges the department's evidence that it continues
to foster partnerships with the states and territories in order to effectively
deliver measures for the protection of threatened species and ecological
communities, including, for example, through strategic assessments,
coordinating listing assessments, recovery plan development and implementation
and delivery of programs such as Caring for our Country.
The committee notes concerns about the potential impacts of forestry
operations on some threatened species, but does not consider that the RFA
exemption needs to be removed from the EPBC Act. Rather, the government should
ensure that it continues to work with state governments to improve the review,
audit and monitoring arrangements for RFAs, with a view to ensuring that
forestry operations avoid impacts on threatened species and ecological
The committee recommends that the Commonwealth government continues to
work with state governments to improve the review, audit and monitoring
arrangements for Regional Forest Agreements, with a view to ensuring that
forestry operations avoid impacts on threatened species and ecological
The committee welcomes the increased use of strategic assessments under
the EPBC Act, and recognises the potential for strategic assessments to deal
with cumulative impacts on threatened species and ecological communities.
Nevertheless the committee acknowledges some of the concerns with the strategic
assessments that have been undertaken to date but believes there are benefits
to the greater level of certainty strategic assessments can provide all
The committee suggests that SEWPAC conduct a review of those strategic
assessments undertaken under the EPBC Act to date with a view to improving the
process in the future.
The committee recommends that the Department of Sustainability,
Environment, Water, Population and Communities conduct a review of those
strategic assessments undertaken under the Environment Protection and
Biodiversity Conservation Act 1999 to date with a view to improving the
process in the future. The committee recommends that this review be publicly
In relation to the use of offsets, particularly under the EPBC Act, the
committee welcomes SEWPAC's publication of a formal policy guiding the use of
offsets under the EPBC Act. The committee acknowledges the department's
evidence that it is designed to improve transparency around how suitable
offsets are determined.
However, the committee considers that offsets should be used with great
caution where threatened species and ecological communities are involved.
The committee notes with concern that SEWPAC is only now reviewing
offsets that have been granted in the past. The committee recommends that an
audit be conducted of those offsets granted under the EPBC Act to date and
their effectiveness. This audit should evaluate and assess the impacts of those
offsets on threatened species and ecological communities.
The committee recommends that the Department of Sustainability,
Environment, Water, Population and Communities conduct an audit and evaluation
of the offsets granted under the Environment Protection and Biodiversity
Conservation Act 1999 to date, and make the results of this audit publicly
The committee notes concerns about proposals to introduce cost recovery
mechanisms under the EPBC Act, but is reassured by the evidence from SEWPAC
that small businesses will be exempt from cost recovery mechanisms. While the
committee supports the principles of cost recovery, the committee expects that
the legislation containing the proposed amendments will be subject to close
scrutiny when introduced into Parliament, including by this committee (or its
successors). In particular, the committee notes that cost recovery measures
could compound concerns about so-called 'green tape'. In particular, there is a
need to ensure that the potential to pass on costs in this area won't lead to
excessive costs and deter both investment and/or referrals. The committee
therefore suggests that the Department of Sustainability, Environment, Water,
Population and Communities engage in extensive consultation with affected
stakeholders prior to the introduction of amendments to the EPBC Act to
establish cost recovery mechanisms for environmental assessment processes.
The committee recommends that the Department of Sustainability,
Environment, Water, Population and Communities engage in extensive consultation
with affected stakeholders prior to the introduction of amendments to the Environment
Protection and Biodiversity Conservation Act 1999 to establish cost
recovery mechanisms for environmental assessment processes.
The committee notes concerns about the level of resourcing for
compliance and enforcement under the EPBC Act. In particular, the committee
notes the evidence raising concerns about monitoring and enforcement of
conditions on approvals under the EPBC Act, especially where they relate to
threatened species and ecological communities. The committee recommends that
the minister and SEWPAC ensure that conditions on approvals under the EPBC Act
are kept as straightforward as possible and worded clearly to ensure that
conditions are enforceable.
The committee recommends that the minister and the Department of
Sustainability, Environment, Water, Population and Communities ensure that
conditions on approvals under the Environment Protection and Biodiversity
Conservation Act 1999 are kept as straightforward as possible and worded
clearly to ensure that conditions are enforceable.
The committee recommends that the Commonwealth government develop a new
compliance strategy in consultation with the states for monitoring and
compliance activities relating to the Environment Protection and
Biodiversity Conservation Act 1999.
The committee further notes that the Australian National Audit Office's
(ANAO) Audit Work Program for this year lists 'Compliance with EPBC Act Approval
Conditions' as a potential audit.
In light of concerns received during this inquiry, the committee recommends
that the ANAO pursue this audit.
The committee recommends that the Australian National Audit Office
conduct an audit of monitoring of compliance with approval conditions under the
Environment Protection and Biodiversity Conservation Act 1999.
In relation to the concerns raised by the Australian Fisheries
Management Authority, about the overlap and duplication in Commonwealth
fisheries, the committee notes that the Hawke review made recommendations to
address this issue, which have been accepted by the government. The committee
recommends that amendments to the EPBC Act implement these recommendations are
introduced into parliament as soon as possible.
The committee recommends that the Environment Protection and
Biodiversity Conservation Act 1999 be amended so that 'the fisheries provisions
under Parts 10, 13 and 13A are streamlined into a single strategic assessment
framework for Commonwealth and State and Territory-managed fisheries to deliver
a single assessment and approval framework' subject to the objects of the Environment
Protection and Biodiversity Conservation Act 1999 being upheld.
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