Final report

About the Review

October 2020

Background

In accordance with section 522A of the EPBC Act, an Independent Review of the Act is required at least every 10 years. Section 522A requires the Review to examine the operation of the Act and the extent to which its objects have been achieved. The first review was undertaken in 2009.

On 29 October 2019 the Minister for the Environment, the Hon. Sussan Ley MP, commissioned the second Independent Review of the Environment Protection and Biodiversity Conservation Act 1999.

The Minister appointed Professor Graeme Samuel AC to conduct the Review (Box 1).

Box 1 - Independent Reviewer – Professor Graeme Samuel AC

Professor Samuel is recognised as having specialist public policy expertise in economic reform and regulation.

At the time of the Review, Professor Samuel holds the position of Professorial Fellow in Monash University’s Business School and School of Public Health and Preventative Medicine. He is also President of Dementia Australia, Chair of Australian Dementia Network Ltd, Chair of Lorica Health, and Chair of Airlines for Australia and New Zealand.

He was formerly President of the National Competition Council and Chair of the Australian Competition and Consumer Commission. He has been involved in several recent reviews and inquiries, including on economic regulation, governance and the efficient operation of the Victorian urban water sector, Australia’s Independent Medical Research Institutes, the Commonwealth Department of Health’s review of private health insurance, Australia’s Wool Selling Systems, the Food and Grocery Code, the Australian Prudential Regulatory Authority’s Prudential Inquiry into the Commonwealth Bank of Australia and the Capability Review of APRA.

In 2010 he was made a Companion of the Order of Australia for eminent service to public administration through contributions in economic reform and competition law, and to the community through leadership roles with sporting and cultural organisations.

Scope of the Review

The Australian Government issued broad terms of reference for the Review as follows:

  1. In accordance with section 522A of the EPBC Act, the Review will examine:
    1. the operation of the Act
    2. the extent to which the objects of the Act have been achieved.
  2. The Review will make recommendations to modernise the EPBC Act and its operation to address current and future environmental challenges, including consideration of:
    1. the objects in section 3(1)(a)–(g) of the Act
    2. Australia’s international environmental responsibilities
    3. Indigenous peoples' knowledge and role in the management of the environment and heritage
    4. implementation of relevant agreements between the Commonwealth, States and Territories
    5. other legislation that may relate to the operation of the Act
    6. recommendations of previous reviews and inquiries and significant publications regarding the operation of the Act and potential reform
    7. broad consultation, including with State, Territory and other levels of government, non-government organisations, Indigenous peoples, members of the community, industry and academia
    8. costs and benefits of recommendations.
  3. The review will be guided by the principles of:
    1. protecting Australia’s unique environment through strong, clear and focused protections
    2. making decisions simpler, including by reducing unnecessary regulatory burdens for Australians, businesses and governments
    3. supporting partnerships to deliver for the environment, supporting investment and creating new jobs
    4. improving transparency to ensure better use of information, accountability and trust in the system
    5. streamlining and integrating planning to support ecologically sustainable development.
  4. The Independent Reviewer will provide a report to the Minister for the Environment within 12 months of the commencement of the Review.

The Review process

Professor Samuel was supported throughout the Review by an Expert Panel (Box 2). The Expert Panel brought expertise and experience in industry, environmental law, agriculture and Indigenous culture and heritage to the Review.

The Expert Panel provided advice to the Reviewer on the Discussion Paper, Interim Report and the Final Report.

Box 2 - Expert Panel members

  • Dr Erica Smyth AC – Dr Smyth has over 40 years’ experience in the minerals and petroleum industry, initially as an exploration geologist and later in government approvals, corporate affairs and community consultation for BHP and Woodside. At the time of the Review she was the Chair of National Offshore Petroleum Safety and Environmental Management Authority Advisory Board and a non-executive director of the MinEx CRC and the NERA Growth Centre.
  • Dr Wendy Craik AM – Dr Craik is a respected policy advisor with a wealth of experience in natural resource management in Australia and overseas. At the time of the Review she was the Chair of the Climate Change Authority and undertook the Independent Review into Interactions Between the EPBC Act and the Agriculture Sector in 2018. Dr Craik’s previous roles include CEO of the Murray–Darling Basin Commission, President of the National Competition Council, Chair of the Australian Fisheries Management Authority, Executive Director of the National Farmers’ Federation and Executive Officer of the Great Barrier Reef Marine Park Authority.
  • Mr Bruce Martin – Mr Martin is a Wik Ngathan man from the community of Aurukun on the Western Cape York Peninsula. He has 10 years’ experience in the community development sector. He worked for the Cape York Land Council, the Wuchopperen Aboriginal Medical Service, the Queensland Department of Families in Cairns and the Aurukun Shire Council. At the time of the Review he was a member of the board of the Indigenous Land and Sea Corporation, the Managing Director of the Regional Development Corporation and Director of Civil Safety FNQ. He was also president of the Cape York Peninsula Live Export Group and a member of Regional Development Australia Far North Queensland and Torres Strait.
  • Professor Andrew Macintosh – Professor Macintosh is an environmental law and policy expert. He has been a leading contributor to environmental and climate change law for over a decade. He is regarded as one of Australia’s pre-eminent experts on environmental regulation, federal environmental law and carbon offsets. At the time of the Review he was the Director of Research at the ANU Law School, Chair of the federal Emissions Reduction Assurance Committee, and a director of the Sydney Desalination Plant and Paraway Pastoral Company.

In March 2020 the Governor-General appointed Professor Macintosh as a Royal Commissioner for the national Royal Commission into the Black Summer bushfires. As a result of the appointment he was unable to continue as an Expert Panel member for the duration of the Review.

Discussion Paper

With broad terms of reference, a key early step in the Review process was to identify those areas where reform would deliver the greatest benefit for the environment, business and the community, while maintaining strong environmental standards.

Professor Samuel published a Discussion Paper on 21 November 2019. The Discussion Paper provided background information about the EPBC Act and the outlook for the Australian environment, focus areas for how the Act could be improved, and principles to guide future reform.

The Review invited submissions on the questions asked in the Discussion Paper.

The Review received and analysed 3,242 unique submissions and 26,053 largely identical contributions on the Discussion Paper.

Interim Report

The Interim Report set out the Reviewer’s preliminary views on the EPBC Act and how it operates. It provided detail of the fundamental problems of the legislation and proposed key reform directions needed to address them. It was informed by submissions on the Discussion Paper and discussions the Reviewer had with stakeholders.

The Interim Report was provided to the Minister for the Environment on 30 June 2020 and published on 20 July 2020.

Feedback on the Interim Report was invited through a survey and 847 responses were received.

Consultation

An extensive stakeholder consultation process was undertaken to inform the Review. Consultation involved face-to-face meetings, public submissions and comments, and focused roundtable discussions. A broad range of stakeholders were engaged with throughout the Review, including State and Territory Governments, statutory committees, joint boards of management, Indigenous Australians, scientists, interest groups, academics and the general public.

Face-to-face meetings were held with national-level stakeholders, statutory committees and States and Territories following the releases of the Discussion Paper and the Interim Report.

A series of roundtables and a consultative group were convened in August 2020 to enable Professor Samuel to hear views on the Interim Report. Expert input was invited to help inform the refinement of the National Environmental Standards recommended by the Interim Report.

A complete list of stakeholders Professor Samuel met with for the Review is provided at Appendix A.

This report

This is the Final Report of the Review. Chapters 1 to 11 of the report set out the key problems with the Act and its operations and provides recommendations to address these. Chapter 12 sets out the recommended pathway with 3 tranches of reform. The recommendations in the report are set out in line with these tranches:

  1. Immediate reforms should be delivered to progress priority reforms.
  2. The second tranche of reforms should be completed within 12 months.
  3. The third and final tranche should be completed within 2 years.

Appendix B of the report presents recommended National Environmental Standards that should be immediately adopted as part of a broader suite of Standards that will be central to the reform of the Act.

For accessibility purposes, in-text references have been kept to a minimum. A Further reading section at the end of the Report provides full references of the submissions and sources that the Report drew from.

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