Dr Emily Gibson, Science, Technology,
Environment and Resources
Key issue
Audit reports, reviews and a statutory review into Australia’s primary environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), have found that it is not being implemented efficiently or effectively, or achieving its objectives.
Reform of the EPBC Act and effective enforcement of its provisions is fundamental to addressing the declining trajectory of Australia’s environment.
The Commonwealth’s environmental role
While the Australian
Constitution does not explicitly provide the Australian Parliament with
power to make laws relating to the environment, the Commonwealth can
legislate on environmental matters using indirect constitutional powers.
These include the external affairs power (based on Australia’s obligations
under international environmental agreements) and the corporations power.
The Commonwealth’s primary environmental legislation, the Environment
Protection and Biodiversity Conservation Act 1999 (EPBC Act), is focused on the protection of 9 matters of national environmental
significance (MNES). These are
largely based on Australia’s obligations under international agreements
relating to environmental matters, such as the Convention on Biological Diversity and the Convention on Wetlands of International Importance
especially as Waterfowl Habitat (Ramsar Convention), and on political agreements between the Commonwealth and
states. This includes the 1997 Heads of Agreement on Commonwealth and
State Roles and Responsibilities for the Environment.
The current MNES 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)
- water resources in relation to large coal mining and coal seam gas
developments (known as the ‘water trigger’).
Generally, actions (or
developments) that are likely to have a significant impact on an MNES require an environmental assessment and an approval from the
federal Environment Minister. Some actions, such as some nuclear-related actions, are expressly prohibited under the EPBC Act.
The EPBC Act has long been criticised for failing to address other matters that cumulatively have a
significant impact on the environment. Stakeholders, such as the Places You Love Alliance (representing over 60 environmental organisations)
and the Environmental Defenders Office, have argued that new MNES should be added, including
for land clearing, biodiversity and ecosystems, water resources, climate
change, air pollution and protected areas. The Australian Labor Party (ALP) and Australian Greens have previously indicated support for expanding MNES. During the 46th
Parliament, the Australian Greens introduced a private Senators Bill proposing a climate trigger for ‘emissions-intensive
activities’. Conversely, the Minerals Council of Australia has argued that duplicative triggers should be
rationalised, that the nuclear actions trigger should be narrowed, and,
together with the Business Council of Australia, that the water trigger be reformed or removed.
Recent reviews of the EPBC Act
Second independent statutory review of the EPBC
Act
The EPBC Act stipulates that an independent review of the Act be undertaken every 10 years to assess
the operation of the Act and the extent to which its objectives have been
achieved. The first statutory review (the Hawke
Review) reported in October 2009, although many
of its recommendations have not been implemented. Professor Graeme Samuel
began the second
independent statutory review of the EPBC Act (Samuel Review) in
October 2019, with an Interim report released in June 2020, and the Final report released in January 2021.
Professor Samuel, having observed that Australia’s
natural environment and iconic places are in an overall state of decline and
under increasing threat, concluded:
The EPBC Act is out dated and requires
fundamental reform. It does not enable the Commonwealth to effectively fulfil
its environmental management responsibilities to protect nationally important
matters. (p. ii)
The final report outlines an integrated suite of 38
recommendations for improving the operation and effectiveness of the EPBC
Act as part of a staged pathway of reform. Ultimately the report recommends
a comprehensive reworking of the Act.
Key elements of the proposed reforms- each requiring
legislative amendments- include:
- the establishment of legally enforceable National
Environmental Standards (NES). NES represent the touchstones for future
effective environmental policy. They are intended to prescribe
how activities at all scales, including actions, decisions, plans and policies,
contribute to outcomes under the Act. The final report of the Samuel Review
lists a proposed suite of NES- as well as providing 4 drafted Standards- covering
matters of national environmental significance, Indigenous engagement and
participation in decision-making, compliance and enforcement, environmental
monitoring and evaluation of outcomes, and environmental restoration, including
offsets.
- new independent oversight and assurance bodies and mechanisms. These
include the statutory
appointment of an independent Environment Assurance Commissioner who would
provide independent monitoring, audit and transparent public reporting on the
operation and administration of all parties operating or accredited under the
Act. The review proposes the appointment of 4 new specialist committees (for
Indigenous engagement and participation, biodiversity conservation, heritage
and water resources) that would provide advice to decision-makers. These
committees would be overseen by an Ecologically
Sustainable Development Committee that would be responsible for oversight
and management of monitoring, evaluation and reporting on the outcomes of the
Act.
- improved Indigenous engagement and participation in decision-making,
as well as comprehensively review Indigenous cultural heritage protection laws
(see the Briefing book article Protecting Indigenous cultural heritage).
- a
robust process for the accreditation of states, territories or other decision-makers
under the Act. The accreditation process would be based on NES, and provide for
Commonwealth intervention where accredited bodies are not meeting NES, as well
as independent performance monitoring and audit of regulators. This
recommendation reforms and strengthens the existing ability of the federal Environment
Minster to enter into bilateral
agreements (for assessments and for approvals) with states and territories.
- improved data and environmental information systems to underpin more efficient and informed processes and decision-making. The
Review proposes amendments to the Act to provide for an information custodian
with a clear legal mandate.
- provision for the assessment of cumulative impacts through national
and regional plans, and for greater investment in restoration of the
environment. The review recommended that the EPBC Act should be focused on matters for which the Commonwealth
is directly responsible, with amendments to the ‘water
trigger’ so that it would apply only to cross-border water resources. The Review proposes that national plans would be prepared for
pervasive cross-jurisdictional issues (such as feral animal control), while
regional plans would support a
shift in focus from project–by–project development transactions to
effective planning at a larger scale. The review proposes 3 regional planning
tools, each of which would be consistent with NES and support the protection of
MNES.
Reform efforts to date
Following the release of
the Samuel Review’s Interim report, the Minister for the Environment committed to developing national environmental standards, progressing bilateral agreements
with willing states for ‘single touch’ approvals, commencing a national
engagement process for modernising the protection of Indigenous cultural
heritage, and exploring market-based solutions for habitat restoration. The
Government later released A pathway to
reforming national environment law.
In August 2020, the Morrison Government introduced a Bill to support ‘single-touch environmental approvals’ (see
the Parliamentary Library’s Bills Digest). This followed a similar Bill
introduced by the Abbott Government in 2014. The
new Bill aimed to expand and clarify existing provisions in the EPBC Act that allow the Commonwealth to delegate environmental
approval powers to states and territories through bilateral agreements. Existing
provisions allow the Environment Minister to enter into:
- assessment bilateral agreements, where the ninister accredits a
state or territory assessment process and the relevant state or territory
assessment body makes a recommendation to the minister who then makes an
approval decision or
- approval bilateral agreements, where the minister accredits a state
or territory assessment and approval process and no further approval by
the minister is required.[1]
Separate approvals may still be required under
relevant state and territory legislation (for example, Indigenous cultural
heritage protection or native vegetation clearance). To date, the minister has
accredited assessment bilateral agreements with each state and
territory and is progressing approval bilateral agreements.
The new Bill was not
supported by the ALP, Australian Greens or cross-bench senators, or by environment,
legal and science stakeholder groups. The Bill did not require the delegation
of approval powers to be supported by legally enforceable NES, or for the
accreditation of bilateral agreements to be subject to rigorous, transparent
oversight by the Commonwealth or an independent Environment Assurance
Commissioner, as recommended by the Samuel Review.
In February 2021 the Government introduced a Bill to provide for NES and an
Environmental Assurance Commissioner (see the Parliamentary Library’s Bills Digest). The Bill sought to establish a
framework for making, varying or revoking and applying NES. It also sought to
establish an Environmental Assurance Commissioner to monitor and audit the
operation of bilateral agreements, and to oversee Commonwealth processes for
making and enforcing approval decisions.
A Senate
Committee recommended that the Bill be passed with amendments; however, the
ALP, Australian Greens and cross-bench senators issued dissenting reports.
While industry and agriculture stakeholders broadly supported the Bill,
environmental, legal and science organisations did not. These stakeholders
expressed concern that the Bill did not properly reflect the recommendations of
the Samuel Review (see the Bills
Digest for more information).
In 2021, the Department of Agriculture, Water and
the Environment (DAWE) published a final
draft National Environmental Standard on Matters of National Environmental
Significance, but the draft standard was criticised as failing to reflect the standards proposed by the Samuel Review.
The Morrison Government’s 2022–23 Budget provided funding
for a review of DAWE’s Environmental
offsets policy, and a
review of statutory committees. This review will scope
a new advisory committee to provide expert industry and technology advice to
government.
The Morrison Government also progressed
regional plans, with an intention to use them to streamline the approvals
process, including for ‘crucial resources projects’. The EPBC Act currently
provides for 2 forms of regional planning: bioregional plans and strategic
assessments.[2] The Minister may
prepare a bioregional plan for a bioregion that is within a
Commonwealth area, or cooperate with a state or self-governing territory to
prepare a bioregional plan for a bioregion that is not wholly within a
Commonwealth area. The Minister is required to have regard to a bioregional
plan in making decisions under the Act. To date, bioregional plans have only been
made for 4 of the 6 Commonwealth
marine areas. The minister may
make a declaration that certain actions or classes of action, undertaken in
accordance with a bioregional plan, do not require approval under Part 9 of the EPBC Act.
The EPBC Act also provides for strategic
assessments. Under a strategic assessment, the Minister enters
into an agreement with a partner (for example, a state or territory,
government agency, or a private proponent) to allow for the impacts of a class
of actions on protected matters to be assessed in accordance with an approved
policy, plan or program. The minister may
determine that a less onerous approach to assessment is required for
actions assessed in accordance with a strategic assessment, or may
declare that actions approved in accordance with the agreement do not require a
separate approval under Part 9 of the EPBC Act.
The Morrison Government considered the following
areas as potential
locations for regional plans: south-east Queensland, Cape York, the
Beetaloo Basin, the Pilbara, and parts of Tasmania (p. 65). Stakeholders such
as the Australian
Conservation Foundation raised concerns that a move to regional
plans- independent of the comprehensive reforms recommended by the Samuel
Review- would weaken environmental protections.
Policy commitments
The ALP has committed to providing a full response to the Samuel Review, to working with stakeholders to reform the EPBC
Act and to establishing an independent environment protection
agency (EPA). The agency would have 2 divisions: a compliance and assurance division, and
an environmental data, information and analysis division. The ALP committed to consulting with stakeholders on an EPA funding model, with contributions from industry likely. It has also committed to providing an annual
ministerial statement on Australia’s role in international negotiations on
environmental issues.
These commitments have
been welcomed by environment stakeholders and are broadly consistent with policies the Australian Greens and some ‘teal’ independents took to the 2022 election. The Australian Greens will
also seek to establish a ‘climate trigger’ to ensure that the climate impact of all large
projects is thoroughly assessed.
Other reviews
The Samuel Review followed several other audits and
reviews since the Hawke Review, as summarised in Table 1.
Table 1 Audits and inquiries
relating to the EPBC Act, and key findings, since 2014
Report |
Summary of key
findings or recommendations |
Monitoring compliance with EPBC Act 1999 conditions
of approval (Australian National Audit Office (ANAO),
2014) |
-
the department has
limited assurance regarding approval of holders’ compliance with approval
conditions and was generally passive in its approach to managing
non-compliance with conditions of approval
|
Managing compliance with the wildlife trade provisions
of the EPBC Act 1999 (ANAO,
2015) |
-
the department lacks
a risk-based approach to compliance
|
Monitoring compliance with EPBC 1999 conditions of approval:
Follow-on audit (ANAO, 2017) |
-
while some progress
had been made in addressing issued identified in the 2014 Audit, the
department has made limited progress in implementing broader strategies to
strengthen regulatory performance
|
Independent review of the water trigger legislation (Stephen Hunter, 2017) |
-
the water trigger is
an appropriate measure to address the regulatory gap that was identified at
the time of its enactment
|
Independent review of interactions
between the EPBC Act and the agriculture sector (Wendy Craik, 2018) |
-
while agricultural
referrals have made up only 2.7% of all referrals since the inception of the
Act, farmers perceive the Act to be complex, difficult to follow, and a
barrier to development
-
the review made 21
recommendations, including harmonisation of Commonwealth and state
legislation, use of regional plans, reform of offsets requirements, and improved
communication
|
Australia’s faunal extinction crisis, Interim Report (Senate Environment and
Communications References Committee, April 2019) |
-
concluded that there
were serious questions as to whether the EPBC Act was still fit for
purpose and achieving its objectives; the majority report recommended
replacement of the Act, as well as the establishment of an independent
environment protection agency
|
Referrals, assessments and approvals of controlled actions
under the EPBC Act 1999 (ANAO, July 2020) |
-
the administration of
referrals, assessments and approvals of controlled actions is not effective
or efficient
-
conditions of
approval are not assessed with rigour, are non-compliant with procedural
guidance and contain errors
|
Management of threatened species and ecological communities
under the EPBC Act 1999 (ANAO, 2022) |
-
the administration of
threatened species and ecological communities under the Act is partly
effective and inefficient
-
the department does
not effectively review or support the implementation of conservation advice,
recovery plans, or threat abatement plans
|
Note: reference to the EPBC Act in
report titles has been abbreviated.
A new framework for National Environment
Protection Measures
The Commonwealth, states and territories agreed, in
the 1992
Intergovernmental Agreement on the Environment (IGAE), to facilitate a
cooperative national approach to the environment. The IGAE provides for the
establishment of the National Environment
Protection Council (NEPC, originally called the National Environment
Protection Authority), comprising Commonwealth, state and territory environment
ministers, and the making of national environment protection measures (NEPMs).
The arrangements are implemented by the National
Environment Protection Council Act 1994 (Cth) and mirror state and
territory legislation (NEPC Acts).
NEPMs are a
special set of national objectives to assist in protecting or managing
particular aspects of the environment. The NEPC has made 7 NEPMs (including for ambient air
quality, diesel vehicle emissions, national pollutant inventory, and used
packaging), while national
guidelines for fresh and marine water quality have been made separately
under the National Water
Quality Management Strategy. The states and territories have discretion as
to how NEPMs are implemented, potentially resulting in variation in uptake,
including more
stringent measures in some jurisdictions.
NEPMs may be reviewed, but this has proven a
lengthy process. For example, a review of parameters of the ambient air quality
NEPM commenced
in 2005 with a
variation of the NEPM finalised in April 2021, and a review of the national
pollutant inventory commenced
in 2017 and was completed in 2018–19 but the review report was not released until 1 April 2022.
The fourth
statutory review of NEPC Act, released in July 2019, found that
administration of the Act was inefficient and ineffective, resulting in
significant delays or avoidance practices, and that the implementation of some
NEPMs was ineffective. The review recommended the repeal and remaking of (or at
least amendments to) the Act, clarifying the objects of the Act as providing
for the protection of the community and the environment, and proposed a
new framework with 3 categories of NEPMs (guidelines, protocols, standards), depending
on the subject matter.
The NEPC’s
response to the review incorporates the decision of the National
Cabinet- following the Conran Review of COAG Councils and Ministerial Forums- to disband the NEPC. The regulatory
functions of the NEPC have been assumed by the ad hoc Environment
Minister’s Meeting and will be dealt with out-of-session wherever possible.
The NEPC agreed to pursue amendments to the NEPC Acts (see Appendix
A of the response), broadly relating to consultation, delegations, and
reporting. It also agreed to broaden the scope of NEPMs to any environment
protection matters as agreed by the NEPC, and to consider redrafting the object
of the Act. At their April
2021 meeting the environment ministers endorsed the NEPC’s response and tasked
the Senior Officials Group with considering potential legislative amendments
and their implications.
Further reading
Sophie Power, Environment Protection and Biodiversity Conservation Act 1999: A Quick Guide, Research paper series, 2018–19, (Canberra: Parliamentary Library, 2019).
Graeme Samuel, Independent Review of the EPBC Act – Final Report, (Canberra: Department of Agriculture, Water and the Environment, 2020).
Senate Environment and Communications Legislation Committee, Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 [Provisions] (Canberra: The Senate, 2021).
Senate Environment and Communications Legislation Committee, Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (Canberra: The Senate, 2020).
Terry Bailey, Independent Review of the National Environment Protection Council Acts, (Canberra: Commonwealth of Australia, 2019) [incorporating] Department of Agriculture, Water and the Environment, National Environment Protection Council Response to the Fourth Review of the National Environment Protection Council Acts (Commonwealth, State and Territory), (Canberra: Commonwealth of Australia, 2021).
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