06 Aug Interim EPBC Act Review Report Published

The EPBC Act was created and implemented in 1999 to protect Australia’s biodiversity and heritage, consistent with its international environmental treaty obligations. The act lists for protection threatened species, communities and critical habitat, as well as wetlands, and world and national heritage places (Matters of National Environmental Significance). For most clients, experience of the Act involves the three-step Referral, Assessment and Approval process for developments that potentially or actually affect these matters.

Pressures on Australia’s fragile environment are increasing from global as well as regional and local changes. The Review indicates that the Act “is not fit to address current and future environmental challenges” affecting the nation’s natural and cultural heritage.

The Review found that staff cuts, increasing processing times for Referrals, Assessments and decisions, and an overall lack of measures to mitigate complex environmental threats have resulted in the EPBC Act failing to protect important aspects of our environment. The Review noted that the offset program was created in order to protect populations of species that development is deemed having a significant impact on. However, what was designed to be a last resort, is now the default. Ecologically sustainable development is a key component of the EPBC Act, but the Review concludes it “is not being applied or achieved.”

Recommendations have been outlined in detail, calling for an increase in the quality of information that informs decision-making and greater accountability in decision-making.

“Fundamental reform of national environmental law is required, and new, legally enforceable National Environmental Standards should be the foundation.” 

In more recent years, with rapidly changing personnel and the advent of state-based assessments, we have observed differences in interpretation of significant impacts within and between Commonwealth and state agencies. The lack of detailed knowledge of species, communities and impact pathways among those assessing development has limited the effectiveness of assessments and lead, in some cases, to onerous conditions of approval unrelated to the level of risk. The Review makes the recommendation to develop National Environmental Standards that must also include regularly updated survey and data/reporting requirements to guide proponents and population estimates and acceptable levels of cumulative impact to guide decision-makers. If developed and documented well, such standards will go a long way to remove the vagueness, ambiguity, inconsistency and political decisions that have dogged the last decade of the Act’s implementation, reducing its potential effectiveness. The Review states, “duplication exists between the EPBC Act and state and territory regulatory frameworks for development assessment and approval,”

“Efforts have been made to harmonise and streamline with the states and territories, but these efforts have not gone far enough.”

The Bilateral assessment processes in most states have been fraught with uncertainty on the part of both state agencies and development proponents. The recommendations of the review are timely. The response from the Commonwealth government has been released stating “The Department of Agriculture, Water and the Environment agrees to implement all recommendations in the report and is committed to the continuous improvement of its processes and procedures.” In addition, a $25 million investment has been made in an attempt to reduce delays and improve efficiency. The Department says they will focus on closing gaps in information record keeping, build on its Compliance Framework and generally improve of administrative processes to ensure consistency and reduce delays.

Complaints about ‘Green Tape’ are more a product of an under-resourced regulator and incompletely formed regulation than a product of the wider community’s desire to protect the environment, which has been a constant since the 1970’s. It is to be hoped the review leads to constructive change in the way the Act is framed and administered, reducing inefficiencies while achieving a more effective outcome for the nationally significant environmental values it was intended to protect.

The full review is yet to be completed and a period of public comment on the Interim report will ensue. In October 2020, a final report and recommendations will be published.

For more information go to:

https://epbcactreview.environment.gov.au/resources/interim-report