Environmental law review

Sophie Power, Science, Technology, Environment and Resources

Key issue
Australia’s key environmental law, the Environment Protection and Biodiversity Conservation Act 1999, is now 20 years old. The EPBC Act is due for a statutory review this year.

The Commonwealth’s key environmental legislation is the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The EPBC Act contains a statutory requirement to review the operation of the Act every ten years. The last review reported in 2009, although many of its recommendations were never implemented. The next ten year review is due to commence by October this year.

During the recent election campaign, both the ALP and Greens issued policies that would involve reforming the EPBC Act and possibly other environmental laws. These policies followed calls from conservation groups, and some scientists and environmental lawyers, for environmental law reform to ensure improved protection for the environment. The proposals for reforms included both expanded Commonwealth powers and new institutions such as an independent national Environmental Protection Authority (EPA).

However, the Coalition considers that proposals for ‘new laws or an EPA are premature’ before the upcoming EPBC Act review has been completed.

Commonwealth’s environmental role

The Australian Constitution does not explicitly provide the Commonwealth Parliament with power to make laws for the environment. However, the Commonwealth can validly legislate in relation to environmental matters under a range of indirect constitutional powers. This includes, in particular, the external affairs power (based on Australia's obligations under international agreements) and the broad corporations power.

The EPBC Act is focussed on the protection of nine ‘matters of national environmental significance’. These are largely based on Australia’s responsibilities under international agreements dealing with environmental protection, as well as on political agreements between the Commonwealth and states. This includes, in particular, a 1997 Heads of Agreement on Commonwealth and State Roles and Responsibilities for the Environment.

The current matters of ‘national environmental significance’ are:

world heritage properties
national heritage places
wetlands of international importance
listed threatened species and ecological communities
listed migratory species
Commonwealth marine areas
the Great Barrier Reef Marine Park
nuclear actions (such as uranium mines) and
water resources in relation to large coal mining and coal seam gas developments (known as the ‘water trigger’).

In short, actions that are likely to have a significant impact on a matter of national environmental significance may require environmental assessment and approval from the Commonwealth Environment Minister.

Expanded Commonwealth powers?

The EPBC Act has been criticised since its enactment for its incomplete coverage as a result of the limited list of matters classified as being of national environmental significance. The Act does not, for example, directly address land clearing or climate change, although there have been various proposals to create a ‘greenhouse trigger’, dating back to the Howard Government.

A coalition of conservation groups, known as the Places You Love Alliance, has suggested that the Commonwealth be given expanded powers in a range of areas. They would like national regulatory oversight to be expanded to cover climate change, land clearing, ecosystems, water resources, air pollution and protected areas (such as national parks).

The ALP supported expanding the Commonwealth’s responsibility to include national parks, land clearing and an extended water trigger to cover all unconventional gas projects (including, for example, shale gas). In addition to these, the Greens suggested greenhouse gas emissions and air pollution, water resources, ecosystems and wetlands of national significance, and invasive species.

However, industry groups, such as the Minerals Council of Australia, consider that increasing federal environmental powers will involve more ‘green tape’ which will cause delays to development approvals. The Minerals Council has suggested that establishing a federal EPA would create another layer of ‘green bureaucracy’ which would ‘cost jobs, discourage investments, and make it easier to disrupt and delay projects’. Instead, it argues that existing regulation should be streamlined to make it more efficient and effective.

Reducing duplication and inconsistency

Projects that need approval under the EPBC Act usually also need approval under state laws. Industry groups, including the Minerals Council and the Business Council of Australia, argue that this is unnecessary duplication which causes delays and additional costs for those projects.

The EPBC Act does provide for duplication to be reduced to some extent by enabling the Commonwealth to accredit state and territory processes through ‘bilateral agreements’. There are two types of bilateral agreements:

assessment bilateral agreements, which provide for a single assessment by accrediting a state or territory process to assess the environmental impacts of a proposed action. After assessment, the proposed action still requires two separate approval decisions: one from the Commonwealth (under the EPBC Act) and another under the relevant state or territory framework.
approval bilateral agreements, which accredit the assessment and approval process of a state or territory. A project covered by an approval bilateral agreement does not require further approval by the Commonwealth Minister. Approval bilateral agreements cannot cover projects involving the water trigger. In 2014, a Bill was introduced to amend this exception, but did not pass Parliament.

The Commonwealth has accredited state and territory assessment processes. However, the accreditation of state and territory approvals has never occurred, despite the Australian Government’s attempts to create a ‘One-Stop Shop’ for environmental approvals.

In 2018, a review was conducted to examine the impact of the EPBC Act on agriculture and food production. This followed concerns reportedly being expressed by some farmers about duplication and complexity under the EPBC Act. The report was due by the middle of 2018 but has not yet been made publicly available.

Conservation groups have argued that the delays and costs of federal environmental oversight are overstated and that the Commonwealth should provide strong national leadership in environmental protection and restoration. For example, the Australian Conservation Foundation has highlighted an OECD study which found that tightening environmental policies has had little effect on overall productivity and that Australia has less stringent rules than many other OECD countries.

Conservation groups have also stressed the important role of the Commonwealth in setting consistent national standards and that national environmental laws should fully reflect Australia’s obligations under international agreements. There may also be situations where states have a conflict of interest in approving developments in which they are involved or actively support.

Continuing biodiversity decline

Another key concern for some stakeholders, including conservation groups and some scientists, is that the EPBC Act has not curtailed Australia’s continuing decline in biodiversity.

Problems that have been identified include delays in listing threatened species and communities, poor implementation of recovery plans, issues with environmental offsets, inadequate protection of critical habitat and high levels of Ministerial discretion. The project-by-project assessment approach which dominates under the EPBC Act also means that the cumulative impacts of developments are not fully considered.

Others are concerned about exemptions in the Act, including for forestry operations under Regional Forest Agreements and activities in the ‘national interest’.

Finally, some conservation groups have queried whether the Environment Department has had sufficient funding and resourcing to support the implementation of the EPBC Act. Improvements have been made in relation to monitoring and compliance since a 2014 audit by the Australian National Audit Office raised concerns about the management of non-compliance with the EPBC Act.

However, a recent Senate Committee inquiry into faunal extinction concluded that there are ‘serious questions about whether the EPBC Act is still fit for purpose and is in fact achieving [its] objectives’. The Committee recommended new legislation to replace the EPBC Act as well as an independent EPA ‘with sufficient powers and funding to oversee compliance with Australia's environmental laws’. Similarly, a recent major UN report on species extinction recommended strengthening environmental laws, policies and their implementation.

Public participation

The EPBC Act provides opportunities for public participation in various decision–making processes. Notably, certain third parties (‘interested persons’) may apply to the Federal Court for an injunction to stop a party from engaging in conduct that constitutes an offence or other contravention of the EPBC Act or Regulations.

The EPBC Act defines an ‘interested person’ as a person or organisation whose interests have been, or would be, affected by the conduct in question, or who has been engaged in a series of activities for the protection or conservation of (or research into) the environment at any time within the past two years.

‘Interested persons’ can also seek judicial review in the Federal Court of ministerial decisions made under the Act.

These provisions have been used relatively infrequently, but have nonetheless generated debate. In response to industry concerns about delays caused by vexatious litigation, the Coalition Government introduced a Bill into Parliament in 2015 to repeal the judicial review provisions. However, that Bill did not progress through Parliament.

In contrast, conservation groups would like these accountability mechanisms to be extended as recommended by the last EPBC Act review.

Other relevant environmental laws

In addition to the EPBC Act, there is a range of other relevant Commonwealth environmental legislation. This includes the National Environment Protection Council Act 1994 (Cth) (NEPC Act) and mirror state and territory legislation, which together are known as the NEPC Acts.

The NEPC Acts establish the National Environment Protection Council (NEPC) which consists of environment ministers from all jurisdictions, including the Commonwealth. The NEPC evolved out of a 1992 Intergovernmental Agreement on the Environment between the Commonwealth and states (although it was originally proposed to be called the National Environmental Protection Authority).

The key role of the NEPC is to make National Environment Protection Measures (NEPMs), which can cover a variety of matters as prescribed in the NEPC Act, including air pollution, site contamination, hazardous waste and used packaging. The National Pollutant Inventory (NPI), for example, is underpinned by a NEPM.

In 2018, NEPC proposed to strengthen the ambient air quality NEPM and the NPI has been under review since 2017. However, some conservation groups, such as Environmental Justice Australia, have called for overarching reforms to the current system. They suggest that the NEPM processes are slow and inefficient, with NEPM standards now lagging behind international regimes, and no sanctions for non-compliance in any case. As a result, they consider that new national air pollution laws are needed.

Past reviews of the NEPC Act have indeed raised concerns over ‘outdated’ processes and the overall effectiveness and implementation of NEPMs. The Act itself provides for five yearly reviews of the operation of the legislative scheme. The last such statutory review was undertaken in December 2012, so a further review was due in 2017, but has not yet occurred. It would seem opportune for such a review to be undertaken in conjunction with the upcoming EPBC Act review.