1.3 - The EPBC Act does not enable the Commonwealth to effectively protect and conserve nationally important matters

1.3.1 - The EPBC Act lacks clear outcomes for MNES

The EPBC Act is not clear on what environmental outcomes it seeks to achieve for matters of national environmental significance (MNES). The objects of the Act are written broadly, which is appropriate for national legislation. The Act lacks effective mechanisms to describe or measure the environmental outcomes it is seeking to achieve and to ensure decisions are made in a way that contributes to these outcomes.

The current arrangements and decision-making requirements for MNES are opaque and buried within hundreds of statutory documents. These arrangements fail to integrate the goals of key plans (such as recovery plans and other management documents) with approval decisions. The Act lacks clear rules for protecting MNES and enables considerable discretion in decision-making.

There is no clear link between how decisions to approve development are connected to achieving environmental outcomes for MNES and the objects of the EPBC Act.

1.3.2 - The way the EPBC Act operates facilitates ongoing decline

The EPBC Act is transactional, focused on individual matters and project-by-project development assessment. Opportunities for more strategic approaches that can consider landscape-scale management and cumulative impacts, such as bioregional plans and strategic assessments, have a history of limited use (Chapter 8). This has resulted in limited consideration or management of cumulative impacts.

Individually listed species and ecological communities dominate the number of assessments carried out under the EPBC Act, both in number and as triggers of development impact assessments. Species and ecological communities are listed using a complex scientific assessment based on internationally determined scientific criteria. After listing, a conservation advice is prepared for each listed species or community. The Environment Minister may decide that a more comprehensive recovery plan is required.

Under the present arrangements, considerable attention is given to the assessment and listing process, with little attention or resources provided for effective management. Currently, there are 718 recovery plans in place for species and 27 in place for ecological communities (of 1,891 listed species and 84 listed ecological communities) (DAWE unpublished). Many of these plans are out of date or expired. There is no requirement to implement a recovery plan or report on progress and the outcomes achieved.

Plans are generally not backed by the necessary resources and actions to implement them. The way the EPBC Act currently operates implies that the goal is to list things and prepare a plan. There is little incentive to achieve environmental outcomes. Under these arrangements, it is not surprising that the number of threatened species and communities listed has increased over time and very few have recovered to the point that they can be removed from the list.

The case is similar for heritage places. Although 5-yearly review and reporting requirements exist for National and Commonwealth Heritage places, none of the 3 past reports have been able to assess the effectiveness of existing heritage management plans (DoEE 2019a). Despite considerable attention at nomination and listing, the ongoing expectations and obligations of property owners and site managers are often unclear and ill-defined.

Under the current settings, cumulative impacts on and threats to the environment are often not well managed. Development assessment and approval decisions are largely made on a project-by-project basis, with the assessment of impacts largely done in isolation of other current or anticipated projects. This approach underestimates the broadscale cumulative impacts that development can have on a species, ecosystem or region. Each individual development may have minimal impact on the national environment, but the combined impact of development can result in significant long-term damage.

This focus on project-by-project assessment and approvals sets the EPBC Act up to deliver managed decline, not sustainable maintenance or recovery. The impact of development is not counterbalanced with legislated recovery processes. This is exacerbated by an EPBC Act environmental offsets policy which is ineffective at compensating for loss and inconsistently implemented. The decision-making hierarchy of ‘avoid, minimise and only then offset’ is not being applied – offsets are too often used as a default measure not as a last resort (Chapter 8).

The EPBC Act itself does little to support environmental restoration. Stabilisation of decline or a net improvement in the state of the environment cannot be achieved under the current system. Restoration is required to enable future development to be sustainable.