In the recent federal election, the Australian Labor Party pledged to:
- creation of an independent environmental protection agency (APE); and
- provide a complete response to the examination of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) undertaken by Professor Graeme Samuel AC (Review of Samuel).
Now that the new ministry has been sworn in, we are looking at what changes these commitments might bring.
The EPBC Act
With the exception of Commonwealth Agencies and Commonwealth Lands, most projects only interact with the EPBC Act where the project is likely to have a significant impact on a matter of national environmental importance (MNES). DEMs are largely based on international conventions and agreements to which Australia is a party, giving the Commonwealth the constitutional power to legislate on these matters.
The MNES under the EPBC Act are:
- world heritage properties;
- national heritage sites;
- wetlands of international importance (Ramsar Wetlands);
- listed threatened species and communities,
- Listed migratory species;
- nuclear stocks;
- Commonwealth marine areas;
- the Great Barrier Reef Marine Park; and
- the protection of water resources against the development of coal gas and the development of large coal mines.
The Samuel Review
The Samuel Review was the second ten-year review of the EPBC Act, which is required under Section 522A. Like the Samuel Review, the first review undertaken by Dr. Allan Hawke in 2009 resulted in a number of recommendations aimed at making significant changes to the operation and administration of the EPBC Act.
Despite two independent reviews of the EPBC Act, as well as numerous parliamentary inquiries, Productivity Commission research reports, ANAO reports and commentary on difficulties with the EPBC Act, it has not been substantially modified since its entry into force in July 2000.
Like its predecessors, the Samuel Review struggled to find anything positive to say about the EPBC Act, with page 1 of the report stating that the EPBC Act:
- is obsolete and needs fundamental reform;
- fails to enable the Commonwealth to effectively discharge its environmental management responsibilities to protect matters of national importance;
- results in piecemeal decisions; and
- is an obstacle to holistic environmental management.
The new government is committed to responding to the Samuel Review and continuing consultations on legislative reform.
The Samuel review was presented as a set of 38 recommendations that were not meant to be ‘cherry picked’. This package included 3 tranches of reforms that aimed to develop national environmental standards, improve efficiency and confidence in the EPBC Act, data collection and sharing, improve compliance and enforcement, and put the emphasis on the participation of First Nations in decision-making and better protection of cultural property. inheritance. A major focus of the recommendations was landscaping or regional planning, considering cumulative impacts, identifying new and emerging threats, and providing greater certainty and effectiveness in EPBC law.
In response to the Samuel Review, the previous government had introduced legislation to create an Environmental Assurance Commissioner and give effect to a framework of national environmental standards, but that bill had not been adopted by both chambers when calling the elections.
Insurance and independence
The Samuel review argued for the immediate creation of an “Environmental Assurance Commissioner” to oversee Commonwealth decision-making, undertake a performance audit function and carry out annual public reporting on the performance against national environmental standards.
The Samuel review also recommended assigning independent compliance and enforcement powers to a compliance and enforcement office within the Department, along with regulatory review and adequate resources.
Both of these functions have been recommended to increase transparency and confidence in the administration of the EPBC Act and improve compliance outcomes.
The Samuel review recognized that good data underpins good decision-making and included recommendations for providing the best available evidence, access to data, and a data custodian to ensure data stewardship and coordination. Good data also increases the reliability and effectiveness of environmental assessment studies.
The new government has pledged to create an independent EPA
The new government has pledged to establish an ‘Independent Environmental Protection Agency’ and to ‘consult widely with industry and other relevant stakeholders to develop an appropriate and effective industry contribution funding model’. Pre-election commitments called for the EPA to have two divisions:
- compliance and assurance; and
- information and analysis of environmental data.
This appears to be a combination of the Environmental Assurance Commissioner and the data custodian recommended by the Samuel review. We anticipate that the funding model will result in a revision of cost recovery provisions under the EPBC Act.
Having worked with the EPBC Act for most of its existence, we believe there are five key priorities that could be implemented relatively quickly to improve the operation of the EPBC Act and its environmental outcomes:
Review the MNES – the list of MNEs should be reviewed with a view to reducing duplication with state regimes. The Samuel review recommended that the ‘water trigger’ be revised to apply to transboundary management, rather than being limited to specific industries. MNES should also be seen in the context of increased protection of cultural heritage and whether climate change considerations should be included in the EPBC Act.
Improve and accelerate regional planning – the biggest potential win for making the EPBC Act work better – both to protect the environment and provide certainty – is to have regional planning assessments that work. Including the possibility of modifying regional assessments, ensuring that regional assessments can be limited to particular DEMs or projects (and linked to species recovery plans), and ensuring that they focus on the highest priority regions have the potential to identify ‘no go’ areas, identify priority compensation and conservation areas and allow for more strategic assessment of project location.
Provide greater certainty in decision-making criteria – the EPBC’s decision-making criteria and level of discretion indicate that the decision is taken at ministerial level. Safer decision-making criteria (as suggested by the Samuel review through National Environmental Standards) provide an avenue for greater predictability in decision-making, assessment documents focused on decision-making criteria decision and better consistency between decisions.
Review the compensation regime – the offset scheme under the EPBC Act is an important element of many approval decisions, and the predictability of costs, timelines and outcomes is important for project proponents, environmental outcomes and the Department’s ability to measure compliance. The offset scheme is old, based on a project-by-project assessment and does not encourage the strategic location and co-location of offsets that could improve environmental outcomes. The interaction of EPBC Act offsets with other offset schemes (e.g. carbon) could be reviewed to provide greater certainty in returns, improved co-benefits and increased rigor around one scheme of “advanced compensation”.
Facilitate strategically important projects – net zero government commitments and continued development pressures mean that there will be strategically important projects that should not be stuck in long and complex approval processes. While regional planning work (eg around renewable energy areas) can help provide certainty, a strategic balance of policies will be needed to facilitate projects that deliver on broader environmental and economic commitments. A more streamlined regime and increased consideration of social and environmental criteria be implemented for projects identified as strategically important for the regional or national interest.
There is no doubt that the EPBC Act would benefit from a detailed overhaul, which could include a division of the legislation, a fundamental reform of its processes and a thorough analysis of legislative options to improve its functioning.
While this is a worthwhile exercise, and one that should be undertaken, it is a long-term, large-scale legislative and administrative project.
In the meantime, there are environmental protection and project development needs that can be addressed by more immediate, short-term fixes to the EPBC Act, and these should be the first considerations of a new government, with a new focus on net zero, the environment and economic outcomes.