Budget Review 2020–21 Index
Sophie Power
The 2020–21 Budget provides an additional $36.6 million over
two years from 2020–21 to ‘maintain the timeliness’ of environmental
assessments and undertake further reforms under the Environment
Protection and Biodiversity Conservation Act 1999 (EPBC Act) (Budget Measures:
Budget Paper No. 2: 2020–21, p. 51). The EPBC Act sets out an
environmental assessment and approval regime for projects that are likely to
have a significant impact on matters of national
environmental significance, such as World Heritage properties, or
nationally listed threatened species (see the Parliamentary
Library’s quick guide to the EPBC Act).
Timeliness
Relevant decisions under the EPBC Act regime must be
made by the Environment Minister (or his or her delegate) within certain
statutory timeframes. For example, approval
decisions must generally be made within 20–40 business days after an
environmental assessment has been completed. In recent years, these timeframes have
not been met.
This budget provision includes $12.4 million to ‘maintain
the momentum’ established through the $25 million provided in the December
2019 Mid-Year
Economic and Fiscal Outlook 2019–20 (MYEFO), ‘to work through the
backlog of environmental approval applications, with a focus on major projects’
(MYEFO, p. 216). These funding boosts come in the context of a recent report by
the Australian National Audit Office (ANAO) which found the administration
of the EPBC Act is ‘not effective’. The report also found a large
increase in delays in decision-making under the EPBC Act. According to
the ANAO, the proportion of key decisions made within statutory timeframes
decreased from 60 per cent in 2014–15 to 5 per cent in
2018–19. Over the same period, the average overrun for approval decisions
increased from 19 days to 116 days, which correlates with reduced staffing
levels in the department administering the EPBC Act. Some
commentators have suggested the increased delays are a result of reduced resources,
and that additional funding is ‘merely a reversal of previous funding cuts’.
As a result of the additional funding announced in December
2019, the
Minister for the Environment has reported improvements in the timeliness of
decision-making under the EPBC Act. In December 2019, 19 per cent
of key decisions were made on time. By March 2020, this figure rose to
87 per cent and as
at 30 June 2020, 98 per cent of key decisions were made on time. A
backlog of overdue decisions remains, but has been reduced from 78 to 26 overdue
decisions between December 2019 and June 2020. The additional funding in the
Budget is designed to maintain this level of timeliness.
Fast-tracking major projects
In June 2020
the Prime Minister announced a ‘priority list of 15 major projects that are
on the fast-track for approval’ and intended to cut approval times for major projects
to 30 days. These 15 major projects
‘will be subject to the same requirements under the EPBC Act
as all referred projects’, but the ‘Australian Government will work with the
states and territories to establish joint assessment teams to progress these
projects’. To this end, the Budget includes $8.8 million over two years to ‘expedite’
approvals for these major projects, which ‘are estimated to contribute more
than $72 billion in public and private investment and will support tens of
thousands of Australian jobs’ (Budget Paper
No. 2, p. 51).
Although the new National Cabinet has endorsed
the list of 15 major projects, the level of transparency involved in the process
of choosing these projects has
been queried. Some components of the 15 major projects had already been
approved under the EPBC Act (such as the major
works associated with Snowy 2.0). For other projects, the list
potentially pre-empts ministerial approval under the EPBC Act. Projects
are not automatically approved under the EPBC Act: before deciding whether
or not to approve a project, the
Minister must take into account a number of considerations, and the approval
must also not be inconsistent with other matters, such as Australia’s international
obligations under relevant treaties. However, since the EPBC Act
commenced in 2000, only 13 projects have been refused at the approval stage
compared to over 1,000 projects that have been approved.
Single-touch approvals
In
July 2020 the Prime Minister announced that the National Cabinet had
‘agreed to move to single-touch environmental approvals underpinned by national
environmental standards for Commonwealth environmental matters’. To this end,
the Budget includes $10.6 million over two years to progress negotiations with
the states and territories on bilateral agreements to accredit states to carry
out environmental approvals for Commonwealth matters. Industry
groups, such as the Minerals Council, have welcomed the Budget’s additional
funding to support timely approvals. They have for many years called for
measures to remedy duplication between the EPBC Act and state and
territory approval processes, which they consider causes additional delays and
costs for proponents of relevant projects. However, conservation groups are
concerned that state
and territory approval processes do not meet the standards required to
protect matters of national environmental significance, and believe that the
Commonwealth should retain regulatory powers and a leadership role,
particularly where Australia has obligations under international agreements.
Legislation
was introduced into Parliament in August 2020 to
support this ‘single-touch environmental approvals’ proposal. As discussed
in the Parliamentary
Library’s Bills Digest, the Bill
proposes to expand and clarify existing provisions in the EPBC Act
that allow the Commonwealth to delegate environmental approval powers to
states and territories. The Explanatory
Memorandum states (p. 1) that ‘the Bill will not have direct financial
impacts’ and the
Environment Minister has reportedly indicated that the legislation ‘does
not involve additional funding for the states’. However, the ACT
Government has said it will request additional funding from the
Commonwealth for the extra work involved if responsibility for EPBC approvals
is transferred. In addition to the funding to progress negotiations, the Budget
provides $11.1 million for states and territories to establish ‘interoperable’
environmental assessment systems, including a biodiversity data repository (Federal
Financial Relations: Budget Paper No. 3: 2020–21, p. 58).
Response to EPBC Act review
Meanwhile, a ten year independent statutory
review of the EPBC Act is currently underway. The review’s Interim Report
was released in June 2020, with the final report due in October 2020. The
Interim Report makes numerous findings and recommendations, and the
Government has committed to addressing a number of ‘priority areas’ in response
to that report, including developing national environmental standards to
underpin the single touch approvals. Another priority area was to ’explore
market based solutions for better habitat restoration’ and the Budget includes $2.5
million to support ‘policy work relating to environmental markets’ (Budget Paper
No. 2, p. 51). The Interim Report identifies the development of
biodiversity market mechanisms as a longer term reform, but some of the
report’s more immediate suggested reforms and findings have not been addressed
in the Budget. For example, the Interim Report found (p. 95) that
monitoring and enforcement of the EPBC Act at the post-approval stage is
‘significantly under-resourced’. Although the
Government responded that it would ‘take steps to strengthen compliance
functions’, there does not appear to be any additional funding for this
area and the
Government has rejected the report’s recommendation to establish an independent
regulator.
All online articles accessed October 2020
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