Final report

1.2 - The EPBC Act does not enable the Commonwealth to play its part in managing Australia’s environment

October 2020

1.2.1 - Managing Australia’s environment is a shared responsibility

The construct of Australia’s federation means that the management of Australia’s environment is a shared responsibility, and jurisdictions need to work effectively together and in partnership with the community.

The Commonwealth, on behalf of the nation, has signed up to international agreements on the environment and has a responsibility to ensure they are implemented. The Commonwealth’s responsibilities in managing the environment have been confirmed by High Court decisions over time and agreed in foundational intergovernmental agreements on the environment (for example, CoAG 1992). These agreements reflect the respective constitutional responsibilities of the Commonwealth and States and Territories. The Commonwealth’s interests are known as matters of national environmental significance (MNES) (see ‘Further reading’ list). The Commonwealth also has responsibilities under the EPBC Act for protection of the environment from proposals involving the Commonwealth.

The EPBC Act implements the Commonwealth’s responsibility for key MNES. Changes over time, including to MNES, have contributed to a drift in the Commonwealth's role and introduced overlaps with the role of the States and Territories. This is particularly the case for MNES for activities impacting water resources and nuclear actions, which must the consider the whole of the environment and inherently overlap with State and Territory responsibilities.

The EPBC Act is also the mechanism for the Commonwealth to regulate the impacts to the environment on Commonwealth land and waters and the activities undertaken by the Commonwealth.

Australia’s system of environment and heritage protection management must recognise the roles of the Commonwealth and States and Territories, to enable them to work together effectively. This was acknowledged by all jurisdictions in the foundational intergovernmental agreements, which committed to an intent of harmonised laws and regulatory systems based on clear interests and, where possible, accommodating their respective responsibilities. This direction was embedded in the original design of the EPBC Act, but the implementation of the Act has failed to fulfil this ambition. The Commonwealth and jurisdictions have instead focused narrowly on their defined interests, rather than on genuine harmonisation of responsibilities in the way the environment is managed. A recommitment to intergovernmental cooperation is needed to safeguard the future of Australia’s environment and iconic places.

1.2.2 - The environment is not managed in a holistic way

When the EPBC Act was introduced it was intended to be part of a comprehensive package of initiatives – including the Natural Heritage Trust Reserve, which has a main objective ‘to conserve, repair and replenish Australia’s natural capital infrastructure’. The Act and the programs meant to support it have become disconnected. Planning, funding and regulatory decisions are not integrated or aligned. The focus and priorities of governments have not been directed towards achieving long-term environmental sustainability. The EPBC Act does not work in concert with the environmental responsibilities and activities of States and Territories to enable the environment to be managed as a system at the right scale.

Pursuing strategic opportunities to improve outcomes for Australia has become discretionary, particularly when resources are constrained. The Commonwealth has retreated to process-driven project-level transactions, rather than leading strategically in the national interest.

Decisions that determine environmental outcomes are generally made on a project-by-project basis, only when impacts exceed a certain size and only for those parts of the environment protected under the EPBC Act. This means that cumulative impacts on the environment are not systematically considered. This puts pressure on individual projects to deliver sustainable development, rather than being implemented within an integrated system of environmental management that operates at multiple scales.

Contributions to the Review have highlighted the need to manage the environment in a strategic and systematic way. Submissions have suggested that the Commonwealth take over the environment responsibilities of the States and Territories. This is neither appropriate nor necessary..

Submissions to the Review have further pointed to the missed opportunities to incorporate Indigenous knowledge, including traditional land management practices, to protect the environment and Indigenous heritage. In its submission to the Review, the Central Land Council (2020) stated:

The knowledge and understanding held by Indigenous peoples, accrued over tens of thousands of years, provides rich expertise that should be more appropriately valued and engaged in protecting and managing Australia’s environment.

Although the objects of the EPBC Act include an intent to recognise the role of Indigenous Australians and promote the use of traditional knowledge, in practice this rarely occurs (Chapter 2). Bringing traditional knowledge and understanding into decision-making and planning will create opportunities for the holistic management of the environment.

The Commonwealth needs to work cooperatively with others in a system where the collective efforts of all parties contribute to environmental outcomes at multiple scales.

1.2.3 - The EPBC Act is not delivering ecologically sustainable development

The promotion of ecologically sustainable development (ESD) is an object of the EPBC Act. ESD means that development to meet the needs of Australians today should be done in a way that ensures the environment, natural resources and heritage are maintained for the benefit of future generations.

The principles of ESD underpin good environmental decision-making frameworks around the world and were committed to by the Commonwealth and all States and Territories in the Intergovernmental Agreement on the Environment in 1992 (CoAG 1992). These principles have been incorporated in various planning and environmental laws across Australia, including the EPBC Act (Box 4).

Despite being central to the objects of the EPBC Act, ESD is not being applied or achieved. The decision-making framework lacks strength and transparency. Decisions under the Act are required to consider the principles of ESD (including the precautionary principle) but these are not given sufficient weight or prominence, particularly in approval decisions.

ESD is an outcome of a sustainably managed environment and the sum of the collective actions (positive and negative) of all parties.

Box 4 - Principles of ecologically sustainable development

Section 3A of the EPBC Act outlines principles of ecologically sustainable development:

  • decision‑making processes should effectively integrate both long‑term and short‑term economic, environmental, social and equitable considerations
  • if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation (known as the precautionary principle)
  • the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations (known as the principle of inter‑generational equity)
  • the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision‑making
  • improved valuation, pricing and incentive mechanisms should be promoted.

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