On 18 June 2008, the Senate referred the following matter to the committee
for inquiry and report by 27 November 2008:
The operation of the Environment Protection and Biodiversity
Conservation Act 1999 (EPBC Act) and other natural resource protection
programmes, with particular reference to:
the findings of the National Audit
Office Audit 38 Referrals, Assessments and Approvals under the Environment
Protection and Biodiversity Conservation Act 1999;
lessons learnt from the first 10
years of operation of the EPBC Act in relation to the protection of critical
habitats of threatened species and ecological communities, and potential for
measures to improve their recovery;
the cumulative impacts of EPBC Act
approvals on threatened species and ecological communities, for example on
Cumberland Plain Woodland, Cassowary habitat, Grassy White Box Woodlands and
the Paradise Dam;
the effectiveness of responses to
key threats identified within the EPBC Act, including land-clearing, climate
change and invasive species, and potential for future measures to build
environmental resilience and facilitate adaptation within a changing climate;
the effectiveness of Regional
Forest Agreements, in protecting forest species and forest habitats where the
EPBC Act does not directly apply;
the impacts of other environmental
programmes, eg EnviroFund, GreenCorps, Caring for our Country, Environmental
Stewardship Programme and Landcare in dealing with the decline and extinction
of certain flora and fauna; and
the impact of programme changes
and cuts in funding on the decline or extinction of flora and fauna.
On 14 October 2008, the Senate agreed to an extension of time to report
on this inquiry to the last sitting day of February 2009. On 11 February 2009,
the Senate granted a further extension of time to report, requiring the committee
to deliver this, its first report, by 11 March 2009, and a final report on 24
April 2009. A further extension for the first report was later granted, to
allow tabling on 18 March 2009.
In accordance with its usual practice, the committee advertised details
of the inquiry in The Australian. The committee also contacted a range
of organisations and individuals, inviting submissions. The committee received
submissions from 113 individuals and organisations, listed at Appendix 1.
The committee held four public hearings in Melbourne, Canberra and
Sydney. Details of these hearings are shown at Appendix 2. A list of tabled
documents and additional information is at Appendix 3.
The committee found that the breadth of the terms of reference led to a
lack of a clear focus in submissions, and made it difficult for the committee
to gather high quality evidence targeting key issues. Despite these problems,
the committee has attempted to address the main concerns expressed by
This Inquiry did not address the cultural heritage aspects of the Act as
the terms of reference were focused on lessons to be learned in protecting
Australia's unique plants, animals, threatened species and ecological communities.
However, as providing for the protection and conservation of heritage is one of
the objects of the Act, the effectiveness of the Act and the performance of the
advisory bodies and departments overseeing heritage should be similarly
evaluated in the future. The injection of $60 million to the heritage sector
through the recent economic stimulus package made some headway in responding to
the substantial decline in federal funding for historic heritage conservation.
The committee did not however receive evidence on the extent to which
initiatives such as this will meet the current and future demand or provide the
needed distribution of heritage conservation skills and knowledge.
Design and operation of the EPBC Act
The Environment Protection and Biodiversity Conservation Act 1999
(the Act) is a major piece of environmental legislation that passed parliament in
June 1999 and came into effect on 16 July 2000.
The Act replaced the Environment Protection (Impact of Proposals) Act
1974 and a number of environment-related Acts,
and was designed to address perceived problems with Australia's approach to
The objects of the Act are:
to provide for the protection of the environment, especially
those aspects of the environment that are matters of national environmental
to promote ecologically sustainable development through the
conservation and ecologically sustainable use of natural resources;
to promote the conservation of biodiversity;
to provide for the protection and conservation of heritage;
to promote a co-operative approach to the protection and
management of the environment involving governments, the community,
land-holders and indigenous peoples;
to assist in the co-operative implementation of Australia's
international environmental responsibilities;
to recognise the role of Indigenous people in the conservation
and ecologically sustainable use of Australia's biodiversity; and
to promote the use of Indigenous peoples' knowledge of
biodiversity with the involvement of, and in co-operation with, the owners of
The Act gives the Commonwealth responsibility for the following matters
of national environmental significance:
world heritage properties;
national heritage properties;
Ramsar wetlands of international importance;
listed nationally threatened species and communities;
listed migratory species protected under international
nuclear actions (including uranium mining); and
the Commonwealth marine environment.
that are likely to have a significant impact on a matter of national
environmental significance are prohibited unless approved by the Minster for
The Act also gives the Commonwealth responsibility for actions
undertaken on Commonwealth land or by the Commonwealth or a Commonwealth
agency. Actions that are likely to have a significant impact on the environment
of Commonwealth land, or are undertaken by the Commonwealth and are likely to
have a significant impact on the environment anywhere in the world, are
prohibited unless approved by the minister.
Environmental matters outside those prescribed for the Commonwealth are
the responsibility of the states.
Referrals, assessments and
Actions that may have a significant impact on a matter of national environmental
significance (MNES) and relevant Commonwealth actions must be referred to the
minister. The minister may decide that an action:
is a controlled action because it is likely to have a significant
is not a controlled action if undertaken in a manner specified;
is not a controlled action and therefore does not require
The minister must choose one of six methods of assessment for a
controlled action: ranging from a full public inquiry, to assessment based on
the referral documentation. Alternatively, a controlled action may be assessed
by a state or territory process designated in a bilateral agreement or by an accredited
The proponent of the action is usually responsible for the preparation
of assessment documentation.
At the completion of an assessment, the minister must decide whether to
approve the action. The minister must consider a number of relevant matters,
including environmental values relevant to the assessment undertaken,
principles of ecologically sustainable development, relevant assessments and
reports and related economic and social matters. The minister may approve an
action subject to conditions. The process of referral, assessment and approval
is discussed in detail in chapter three.
2006 Amendments to the EPBC Act
The Environment and Heritage Legislation Amendment Bill (No 1.) 2006
amended the Act. These changes included:
Streamlined process for transfers to the National Heritage list.
Removal of places outside Australian jurisdiction.
Installed an annual cycle for the listing process and simplified
the process for emergency listing.
Disestablished the Register of the National Estate (RNE).
Amended the process for listing threatened species to an annual
Gave the minister the power to determine conservation themes.
Removed the requirement for the Scientific committee to assess
species on state and territory lists.
Criticisms of the Act
There have been a number of areas of ongoing criticism or concern
relating to the Act. This section outlines some of the claims made about the
Act's deficiencies which are discussed more fully in later chapters of this
Matters of environmental
A persistent criticism of the Act is that important environmental
matters or actions are not included as MNES, and are therefore unable to
trigger the assessment and approval mechanisms. There have been numerous
suggestions for additional 'triggers', including:
Threatened species and the EPBC Act
The Act's regime relies on the maintenance of lists of threatened
species and ecological communities. A 2006–07 Australian National Audit Office
(ANAO) report, taking into account the 2006 amendments, cast doubt on the
ability of the current listing processes to produce accurate and comprehensive
lists in appropriate timeframes.
Recovery plans for listed threatened species and ecological communities
set out management actions necessary to maximise the long-term survival of
affected species and ecological communities. They also provide a basis for
allocation of funding for biodiversity protection and conservation. Despite the
2006 amendments to the Act, progress on completion and monitoring of recovery
plans remains slow.
The Act allows community involvement in decision-making processes; it
also envisages broad rights of appeal of decisions made under the Act. This is
reflected in the standing granted in some circumstances to interest groups by
the Act, allowing them to pursue merits review of certain decisions.
Nevertheless, there is scope to re-examine the Act's standing provisions
(particularly third-party enforcement), as well as the influence of costs and undertakings
as to damages on public participation.
The scheme of the Act relies predominantly on self-referral by action
proponents. Schemes dependent on self-regulation can pose significant
challenges for compliance. There is evidence that better information and
education strategies could improve the Act's referrals system.
In addition, the low number of outright refusals to allow a controlled action has
been cited as evidence that the Act's self-referral system may not be capturing
all relevant actions.
Compliance and enforcement
An effective compliance and enforcement strategy is required to ensure
the integrity of the Act, particularly so that the requirements of conditional
approvals are observed. Currently, it appears that implementation of compliance
monitoring has been insufficient, such that the department 'has not been well
positioned to know whether or not the conditions...being placed on actions are
efficient or effective'.
While the committee's inquiry was underway, a separate independent
review of the Act commenced. That review is based on section 522A of the Act,
which requires that a review of the Act take place. It states:
The Minister must cause independent reviews to be undertaken
by a person or body of:
the operation of this Act; and
the extent to which the objects of this Act have been
The first review must be undertaken within 10 years of the
commencement of this Act. Later reviews must be undertaken at intervals of not
more than 10 years.
The person or body undertaking a review must give a report
of the review to the Minister.
The Minister must cause a copy of the report to be laid
before each House of the Parliament within 15 sitting days of that House after
the Minister receives it.
On 31 October 2008 the minister, The Hon Peter Garrett AM MP, announced
the commencement of the independent review. The head of the review is Dr Allan
Hawke, and the review is being supported by a panel of experts, comprising:
The committee notes that the review issued a discussion paper to support
the review, and called for public submissions by 19 December 2008. It is now
considering the 195 submissions it received. It is due to report by 31 October
The committee was advised that the minister has written to Dr Hawke
asking that the independent review take account of this committee's work. The
committee is pleased that the independent review will have the opportunity to take
account of the discussion, conclusions and recommendations contained in this
This report concentrates on several key issues raised by submitters to
the present inquiry, and foreshadowed above. These are:
The scope of the Act (chapter two);
The referral, assessment and approval process (chapter three);
Agreements and coordination between governments and agencies
Threatened species and ecological communities (chapter five); and
Community and stakeholder engagement (chapter six).
The committee received considerable evidence in relation to the
interaction between the Act and environmental impacts in areas covered by Regional
Forests Agreements (RFAs). This particular topic will be the subject of the
separate report to be provided to the Senate in April.
Navigation: Previous Page | Contents | Next Page