In brief

This article concerns the recent publication of the Interim Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). 

Section 522A of the EPBC Act requires an independent review of its operation and the extent to which its objects have been achieved to be undertaken at least once every 10 years. 

The Independent Review currently being undertaken by Professor Graeme Samuel AC is the second independent review of Australia's central national environmental law. The first independent review of the EPBC Act was completed in 2009 and was undertaken by Dr Allan Hawke. 

Key issues of the EPBC Act 

The following is a summary of the key issues of the EPBC Act that are identified in the Interim Report:

  1. National level protection and conservation of the environment and iconic places – The EPBC Act does not provide an effective and efficient regime to protect Australia's unique environment and iconic places as, among other things, the EPBC Act lacks clear national outcomes and effective mechanisms to achieve the objects of the EPBC Act, relevantly ecologically sustainable development. 

  2. Indigenous culture and heritage – The administration of the EPBC Act does not recognise the role of Indigenous Australians, in particular to promote the use of Indigenous knowledge or views in the decision-making process. 

  3. Legislative complexity – The EPBC Act is complex, which has resulted in confusion and inconsistent decision-making under the EPBC Act, and the process for stakeholders to understand their legal obligations and rights is cumbersome and expensive. This complexity is "in part driven by underlying policy complexity". 

  4. Efficiency – There is duplication with state and territory regulatory frameworks for development assessment and approval which is "inefficient and costly for the environment, business and the community". Efforts to streamline assessment and approval under the EPBC Act has not eliminated the significant overlap between the Commonwealth, and state and territory laws and regulations. 

  5. Trust in the EPBC Act – There is a lack of trust by community and industry of the EPBC Act and its regulatory regime. Slow decision-making, lack of information and transparency about the decision-making process under the EPBC Act were found to be key to this mistrust. 

  6. Data, information and systems – The decision-making process under the EPBC Act is not conducted by the best available data, information and science as, among other things, the "Department's systems for information analysis and sharing are antiquated". 

  7. Monitoring, evaluation and reporting – The current monitoring, evaluation and reporting of the EPBC Act is inadequate. 

  8. Restoration – The EPBC Act does not support effective or efficient restoration of the Australian environment, in particular "Environmental offsets are poorly designed and implemented". 

  9. Compliance, enforcement and assurance – Compliance with the EPBC Act is difficult, outdated and ineffective. 

Key direction for reform

The Interim Report noted that submissions received in respect of the Independent Review proposed a "complete revamp" to the objects of the EPBC Act. However, the Independent Reviewer stated that "amending the objects of the EPBC Act will not 'provide more clout' or deliver better outcomes unless other issues that diminish the effectiveness of the Act to protect the environment are addressed". 

A key reform direction of the Interim Report is the development of new, legally enforceable National Environmental Standards. The Independent Reviewer relevantly stated that "Interim Standards could be developed immediately, followed by an iterative development process as more sophisticated data becomes accessible" and that "Standards should focus on detailed prescription of outcomes, not process".

Next steps

The Final Report is due to be completed in October 2020. 

The Independent Reviewer has invited feedback to the Interim Report for consideration in the finalisation of the Independent Review.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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