The Interim Report of the Independent Review of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) was published on 20 July 2020.

The Interim Report reflects a strong view that the current regime is not effective in protecting Australia’s environmental values, nor is it efficient in delivering outcomes supported by business or the community. The Interim Report proposes a range of reforms with a strong focus on Ecologically Sustainable Development. Some of the central proposals have been well-received by the Commonwealth Government.

Companies wishing to make a submission on the Interim Report should do so by Friday 14 August 2020. The final report is due in October 2020.

Snapshot

• The proposed introduction of National Environmental Standards setting quantitative rather than qualitative standards would underpin the reformed regime, and the Commonwealth has committed to collaborative development of national standards as a priority area
• More effective engagement and involvement of Aboriginal and Torres Strait Islander people in decision-making processes is a key theme and the Commonwealth has also committed to progressing engagement on modernising regimes for protection of Indigenous cultural heritage
• The Interim Report reiterates previous calls for one-stop approvals and proposes a mechanism for accredited approvals supported by improved data collection and greater monitoring, reporting and assurance
• The Interim Report does not yet reach conclusions on review of decisions under the EPBC Act. It foreshadows proposing minimal change to the expansive standing provisions for judicial review, but potentially proposing a higher standard gateway at the start of judicial review proceedings and a limited merits review mechanism
• The Interim Report does not support a climate change trigger, but proposes a range of mechanisms to consider climate change in decision making and to leverage other regimes including carbon market reforms to support improved biodiversity outcomes

National Environmental Standards

The centrepiece recommendation of the Interim Report is a set of enforceable legislative instruments called National Environmental Standards (NES). The NES would set requirements for matters ranging from the decision-making processes to granular environmental outcomes, with the overall objective of achieving Ecologically Sustainable Development. As such, the concept of NES forms the basis for many of the other proposed reforms.

By setting out clearer standards, the Interim Report envisions a framework where low-risk projects can proceed without approval upon demonstrating compliance with the NES. Resources could then be devoted to assessing higher-risk projects which do not initially meet the NES.

The Interim Report recommends the adoption of interim standards in the short-term to transition to the NES framework.

In a media release on 20 July 2020, Commonwealth Minister for the Environment the Hon Sussan Ley MP committed to development of national standards which would underpin new bilateral agreements with the States.

Devolution – Streamlining Commonwealth Assessment and Approval

A perennial issue in Australia’s environmental framework is the overlap between State and Commonwealth responsibilities, which has resulted in duplication and inefficiencies. Under the proposed framework, the Commonwealth would be able to accredit State assessment and approval processes that are consistent with the NES. This goes a step further than the existing assessment bilateral agreements.

The Commonwealth Government has embraced this proposal and committed to commencing discussions with States to agree to ‘single touch approvals’.

Further, the Interim Report has declined to expand the Commonwealth’s responsibilities in matters such as climate change, water resources, nuclear actions and land clearing. It has instead recommended that these remain regulated by other regimes, remain limited in application of the EPBC Act or remain a State responsibility, with guidance through the NES where appropriate.

Indigenous Cultural Heritage

The Interim Report calls for a review of Indigenous cultural heritage laws and increased engagement of Aboriginal and Torres Strait Islander people in decision-making processes. Notably, it criticises the current prioritisation of Western science over Indigenous knowledge and values. It proposes the creation of an Indigenous Knowledge and Engagement Committee to co-design an NES for Indigenous engagement with the Commonwealth Minister.

The Government has accepted the need to review cultural heritage laws, and has committed to a round table meeting of Commonwealth and State Indigenous and Environment Ministers.

Regional Planning and Restoration

A key theme that appears throughout the Interim Report is the need to achieve substantially better environmental outcomes. To this end, the Interim Report proposes the use of regional planning tools, more stringent requirements for proposals to demonstrate that opportunities for avoidance and mitigation of impacts ‘have been exhausted’ before offsets should be considered. A more rigorous offsets regime is also viewed as an opportunity to promote investment in environmental restoration. Regional plans would better capture and address the cumulative impacts of projects on a landscape, while a legislated offsets regime would create certainty and encourage a restoration offsets market.

The Government has committed to establishing an environmental markets expert advisory group to explore market based solutions for habitat restoration.

Compliance, Enforcement and Assurance

The Interim Report proposes the creation of an independent regulator to engage in compliance and enforcement action, on the basis that this would ensure that enforcement is not subject to Ministerial direction and increase trust in the EPBC Act.

The proposal has weight in light of the Auditor-General’s recent criticism of the Department of Agriculture, Water and Environment for being an ineffective regulator.^[1] However, the Commonwealth Government has indicated it would not support this proposal on the basis that it would increase bureaucracy.

Review of decisions

The Interim Report recommends greater transparency in the decision-making process to limit the necessity for judicial review in order to obtain information.

The Interim Report does not support reducing the current expansive standing provisions but foreshadows a potential ‘gateway’ to show merit of a judicial review at commencement of proceeding, aiming to facilitate review that is focused on outcomes, but limit review that is focused only on procedure.

The Interim Report endorses a potential limited opportunity for merits review ‘on the papers’ for specific decisions in the environmental impact assessment process.

Data and information

The Interim Report foreshadows greater and more strategic information collection, analysis and transparency, so that all parties can more clearly understand whether the EPBC Act is delivering on a clear objective to achieve Ecologically Sustainable Development.

This includes proposal for a ‘national supply chain of information’ that would deliver better quality information to the public, proponents and governments, leading to better decisions and faster, lower cost assessments.

In this context, the Report refers positively to the Commonwealth / WA collaborative Digital Environmental Assessment Program which aims to deliver a single online portal for assessments and biodiversity databases as ‘a good first step in this direction’.  While still under development, the portal aims to provide a true one stop shop, through coordination of concurrent WA and Commonwealth applications and harmonizing the associated assessment requirements. WA biodiversity data will also be collocated on the portal. A reduction in assessment times for major projects by between 6 – 12 months is flagged, as well as the opportunity to deliver better environmental outcomes.

Next Steps

Consultation is ongoing and the Interim Report is open to a public survey until 9:00 am on 17 August 2020. To provide a response, please visit https://haveyoursay.agriculture.gov.au/epbc-review/survey_tools/comments-on-the-interim-report.

[1] Auditor General Report No. 47 2019-20, Referrals, Assessments and Approvals of Controlled Actions under the Environment Protection and Biodiversity Conservation Act 1999 (25 June 2020) https://www.anao.gov.au/sites/default/files/Auditor-General_Report_2019-2020_47.pdf. 

The authors would like to thank Edward Watson for his contributions to this article.