Final report

Chapter 3 - Reducing legislative complexity

October 2020

Key points

The EPBC Act is complex. Complex legislation makes it difficult, time-consuming and expensive for people to understand their legal rights and obligations. This leads to confusion and inconsistent decision-making, which creates unnecessary regulatory burden for business and restricts access to justice.

The key reasons the EPBC Act is complex are:

  • The policy areas covered by the Act are inherently complex. Environmental approvals, Commonwealth reserves, heritage protection, wildlife trade, and the conservation and recovery of threatened species are all complex. The way the different areas work together to deliver environmental outcomes is not always clear, and many policy areas operate in a siloed way.
  • The Act relies heavily on detailed prescriptive processes that are convoluted and inflexible, meaning engaging with it is time-consuming and costly. Convoluted processes are made more complex by important terminology being poorly defined or not defined at all.
  • The Act also interacts with a wide range of other Commonwealth environment, heritage and Indigenous legislation. These interactions include inconsistency and conflict, which drives complexity and uncertainty when applying the Act.
  • The construction of the Act is archaic and does not meet best practice for modern regulation. It is not structured for clarity, ease of use or to enable the full delivery of a national, standards-based framework to achieve environmental and heritage outcomes over the long term.

Neither the EPBC Act in its current state nor minor efficiency adjustments to the Act can effectively deliver:

  • the recommended National Environmental Standards
  • accreditation of third parties to make decisions
  • audit and oversight.

A systemic overhaul of the EPBC Act is required. This involves both immediate and ongoing amendment. Sensible staging of legislative reform should be matched with the maturity of the system as it evolves.

The key reforms recommended by the Review are to:

  • Immediately improve the operation of the EPBC Act by implementing legislative amendments in the short term to address known inconsistencies, gaps and conflicts.
  • Comprehensively overhaul the Act to enable the delivery of the policy reforms recommended by this Review – without this, the full delivery of reform will not be possible.
  • Consider alternate structures for the Act, such as creating separate pieces of legislation for its key functional areas. Redrafting should explicitly consider how to improve the interactions within the Act and with other Commonwealth legislation.
  • Consistent with the Intergovernmental Agreement on the Environment (IGAE), redraft the Act to enable harmonisation with State and Territory regulation to deliver the recommended standards-based accreditation framework.

3.1 - The EPBC Act covers a range of complex policy areas

The policy areas covered by the EPBC Act are complex. Having multiple policy functions in the one Act makes it very challenging to understand how these areas operate separately or together. The inter-relationships between the different parts of the Act are often not clear. The original ambition of the Act for a comprehensive framework – one that combined 5 pieces of legislation into one – has not been realised. The complexity of the Act is compounded by the way it overlaps and interacts with sometimes equally complex State and Territory regulatory arrangements.
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3.2 - Environmental impact assessment is a convoluted process based on poorly defined terms

The EPBC Act uses overly prescriptive processes. The effort of the regulator and the proponent is often focused on completing the process quickly rather than achieving the outcome intended. This is most visible for environmental impact assessment.
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3.3 - The construction of EPBC Act is outdated and its interactions with other Commonwealth legislation are unclear

The EPBC Act does not meet Commonwealth Government best practice guidance on minimising legislative complexity. There is opportunity to remove duplication, apply consistency and simplify the law. The inter-relationships between the EPBC Act and other laws are not clear. Definitions of terms, processes and outcomes set out in the Act do not always align or operate in conjunction with other legislation. The Act was drafted 20 years ago and does not meet current, best-practice legislative drafting. There is a general need to remove duplication, apply consistency and simplify the law where possible.
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3.4 - Recommended Reforms

Legislative amendments to the EPBC Act are recommended to address known inconsistencies, gaps, and conflicts in the Act. Simplifying the legislation should follow the implementation of recommended reforms to the regulatory system. It may be prudent to consider dividing the Act along functional or operational lines. The reforms recommended by the Review, particularly those related to the hardwiring of the requirement for ecologically sustainable development (ESD), the establishment of National Environmental Standards, and pursuing a regional planning approach, will all reduce the need for complexity in the law. Known improvements to the Act should be made in the short term with longer term changes restructure and simplify the law.
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