Final report

12.2 - Staging reform

October 2020

The Review recommends a pathway of staged reform. Urgent reform, medium-term priorities and long-term action are all required to deliver the comprehensive change that is needed. Not everything can be done straight away, and transition periods will be required. The details of complex policy challenges will take time to work through, to ensure any change to legislation and the administration of the law is set up for success. However, given the urgent concerns identified by this Review, the Australian Government should not wait for everything to be ready.

For the staged reform pathway to work, foundational reforms must commence immediately to amend the EPBC Act and make the National Environmental Standards. Reforms to enable improved data and information, monitoring and planning and restoration should commence immediately and be in place within the next year 2 years (Figure 12).

12.2.1 - Immediate steps should be taken to start reform

The Review has recommended that National Environmental Standards be immediately made, with strong Commonwealth oversight by the independent Environment Assurance Commissioner (EAC). For the Standards to work, implementation needs to be supported by the provision of expert advice, transparency of decision-making, access to data and information, strong independent compliance and enforcement, effective monitoring and evaluation, access to justice and investment in restoration. The Review has prepared recommended National Environmental Standards (Appendix B).

The recommended National Environmental Standards should set clear rules for decision-making. These should be immediately finalised as part of a full suite of Standards and adopted by early 2021 to kick-start change.

Pursuit of bilateral agreements with the States and Territories should be underpinned by the National Environmental Standards, and subject to the rigorous oversight of the EAC. This requires an immediate tranche of legislative changes to create legally enforceable Standards and to create the position of Environment Assurance Commissioner.

While it is important that the Commonwealth provides a sound mechanism for willing States and Territories to enter these arrangements, the appetite to do so may vary. Streamlining with States and Territories is not the sole goal of reform.

Immediate amendments to enable National Environmental Standards, and more effective bilateral agreements should be accompanied by those to establish the comprehensive advisory committee structure and the EAC to ensure environmental outcomes are being achieved. An interim national environmental information supply chain custodian should also be appointed during the immediate reform stages.

The process for delivering complex reforms and the mechanisms required to underpin continuous improvement should also commence immediately. This will enable policy development to occur, implementation plans to be finalised and resourcing commitments to be made.

Tranche 1 reforms

Immediately implement priority reforms
Create enforceable National Environmental Standards with stable accreditation settings and independent oversight.
  • Amend the Act to establish the National Environmental Standards as Regulations (Recommendation 3). The full suite of National Environmental Standards should be implemented. To do this, the recommended Standards developed by this Review should be adopted and remaining Standards developed as a matter of priority.
  • The National Environmental Standards should initially reflect current legal settings and should be applied through new bilateral agreements (Recommendation 14) and as a benchmark for Regional Forest Agreements (RFAs) (Recommendation 15).
  • Establish the position of the Environment Assurance Commissioner to deliver oversight and audit functions (Recommendation 23).
  • Recast the statutory advisory committees and ensure appropriate secretariat support and resourcing (Recommendation 12).
  • Implement a modern suite of compliance and enforcement powers assigned to an independent compliance function in the Commonwealth and through accredited parties – and improve transparency and accountability for the application of these powers (Recommendation 30).
  • Repair the EPBC Act to fix inconsistencies, gaps and conflicts (Recommendation 9) and improve durability of the settings for accredited decision-makers (Recommendation 14). Revise the offsets policy (Recommendation 27).
Instigate work on complex enabling reforms
  • Examine the feasibility of mechanisms to leverage private-sector investment, to deliver the scale of restoration required for sustainable future development in Australia (Recommendation 28).
  • Appoint an interim environmental information supply chain custodian responsible for delivering an information supply chain and ensure it is adequately supported (Recommendation 31). Begin to overhaul the systems needed to capture value from the supply chain.
  • Develop monitoring and evaluation plans for each matter of national environmental significance (MNES) (Recommendation 33) to build a framework for monitoring, reporting and evaluating the performance of the Act. Immediately establish environmental and performance baselines to inform future work.
  • Continue to improve information supply chains and define National Environmental Information Assets in policy (Recommendation 31). Accelerate the development of national environmental-economic accounts.
Indigenous-specific reforms
  • Instigate a review of national-level cultural heritage protections (Recommendation 7) and co-design reforms important to Indigenous Australians.
  • Require transparent and respectful consideration of Indigenous knowledge and science in decision-making (Recommendation 5).
  • Make an initial National Environmental Standard for Indigenous engagement and participation in decision-making based on the recommended Standard (Recommendation 5), and then further refine this Standard through an Indigenous-led process.
  • Work with Indigenous Australians to meet their aspirations to manage their land in partnership with the Commonwealth (Recommendation 8)

12.2.2 - Within 12 months, deliver more effective protections and greater efficiency of implementation of the National Environmental Standards and accreditation model

To deliver the reform framework, the work needed to develop and implement the necessary enabling reforms should be finalised within 12 months – including for planning and restoration, transparency, data and information, monitoring and evaluation mechanisms.

Ongoing commitments to invest in the information supply chain are needed to support reform. Reforms should not wait for perfect data to be available, but a process of continuous improvement should be in place by the end of 2021.

The National Environmental Standards should also be refined based on early implementation results. A comprehensive redrafting of the EPBC Act should be undertaken to support the efficient implementation of the recommended Standards-based accreditation model and for Commonwealth-led changes. The National Environmental Standards for MNES should be refined to enable them to deliver the level of environmental protection necessary for the environment to be sustainable (Recommendation 4). A comprehensive program of Commonwealth-funded strategic national and regional plans should commence (Recommendation 26).

Tranche 2 reforms

Make comprehensive amendments to the EPBC Act within 12 months

To deliver more effective and efficient National Environmental Standards, accreditation and decision-making:

  • Enable proactive measures to recover, repair and enhance MNES (Recommendation 4).
  • Implement robust accreditation arrangements (Recommendation 24) and rationalise Commonwealth assessment pathways (Recommendation 18).
  • Enable regional plans and strategic national plans (Recommendation 25).
  • Overhaul Parts 3 to 10 of the EPBC Act to support the effective integration of the Standards into decision-making of the Commonwealth or an accredited party (Recommendation 4). Revise the MNES triggers for water and nuclear actions (Recommendation 1) and revise the RFA provisions (Recommendation 15).
  • Amend provisions for strategic assessments and remove section 160 of the EPBC Act (Recommendation 16).
  • Implement limited merits review (Recommendation 13).
Build on information and data and monitoring and evaluation mechanisms
  • Deliver the national environmental information supply chain roadmap and strategy and formalise arrangements for the environmental information supply chain custodian (Recommendation 32).
  • Finalise a long-term environmental monitoring strategy and monitoring and evaluation framework, including indicators (Recommendation 34). Formalise the National Environmental Information Assets (Recommendation 32).
  • Commit to a strategic plan in the Commonwealth’s response to the 2021 State of the Environment report (Recommendation 36) to clarify the long-term purpose of the report and to require tabling of national environmental-economic accounts in the Parliament (Recommendation 36).

12.2.3 - Finalise legislative reform

The final phase of reform should complete the full legislative overhaul to efficiently and effectively deliver the new framework.

Tranche 3 reforms

Finalise legislative reform of the EPBC Act by 2022

Finalise the redrafting the EPBC Act to fully modernise it. This should include considering options to restructure or separate the major functions of the Act. Agreed arrangements for joint management of Commonwealth reserves should be formalised.

Overhaul the legislation
  • Restructure the EPBC Act to clarify and simplify it (Recommendation 10). Consider separate Acts, including for environmental reporting and parks and reserves.
  • Reform major functions, including wildlife trade regulation (Recommendations 20, 21 and 22) and joint management of national parks (Recommendation 8).
Other supporting arrangements

Implement a long-term environmental monitoring strategy and mechanisms to leverage private investment in environmental restoration (Recommendation 28).

12.2.4 - Continuous improvement

Work should also commence immediately to embed the processes for continuous improvement including those that ensure:

  • the National Environmental Standards and their application are reviewed and improved regularly
  • the EPBC Act and associated administration of the Act are reviewed and updated regularly
  • there is sustained engagement with Indigenous Australians to codesign reforms that are important to them
  • key gaps in the information supply chain are filled and made accessible
  • departmental systems are reviewed and improved where needed
  • the State of the Environment report is remains aligned with the national monitoring and evaluation framework and national environmental economic accounts.

12.2.5 - Updating intergovernmental arrangements

The Commonwealth and the States and Territories will need to better align their regulations and systems if the accreditation approach recommended in this Review is to be fully realised. For the Commonwealth, this means fully implementing a Standards-based accreditation model to facilitate better integration with other legal frameworks. For the States and Territories, adjusting their arrangements to mirror the Commonwealth’s means they can take full advantage of an accreditation framework.

The Commonwealth should continue to play a leadership role to ensure that national environmental management is leading Australia toward ecologically sustainable development. The Review recommends the Commonwealth actively pursues the cooperation and coordination of jurisdictions.

Recommendation

Recommendation 38

In the third tranche of reform, the Commonwealth should instigate a refresh of intergovernmental cooperation and coordination to facilitate collaboration with the States and Territories, including:

  1. greater consistency and harmonisation of environmental laws
  2. finalising a single national list of protected matters to facilitate streamlining under the common assessment method
  3. a shared future program of regional planning and strategic national plans
  4. leveraging Commonwealth reforms in data and information
  5. consolidating monitoring and reporting on environmental outcomes across Australia through the State of the Environment report and other reporting.

Figure 12 - Recommended reform pathway 

Figure 12 - Recommended reform pathway

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