Final report

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

October 2020

The original ambition of the EPBC Act for a ‘joined up’, comprehensive environmental framework – one that combined 5 pieces of legislation into one – has not been realised.

The complexity in the Act, and across the broader environmental, heritage and Indigenous cultural protection responsibilities of the Commonwealth, is in part driven by underlying policy complexity. The broad policy areas covered by the Act – environmental approvals, Commonwealth reserves, heritage protection, wildlife trade, and threatened species conservation and recovery – are complex in their own right.

Having multiple policy functions in the one Act makes it challenging to understand how the requirements for these areas operate separately or together. This creates confusion and inconsistency in decisions and limits the effectiveness of the compliance and enforcement function (Box 13). The interrelationships between the different parts of the Act are often not clear, and there can be ambiguity when different parts of the Act are in operation.

Box 13 - Unclear linkages between the functional parts of the EPBC Act

Example 1: The link between recovery plans (Part 13) and approval decisions (Part 9)

It is administratively difficult to apply the current legislative requirement to ‘not act inconsistently with a recovery plan’ made under Part 13 and an approval decision made under Part 9. There are commonly different opinions as to what practically amounts to an inconsistency. Recovery plans are written with a focus on protecting and enhancing species’ survival. Decisions made under Part 9 are generally applied in a way that minimises harm to the environment while facilitating development but do not aim to enhance species’ survival.

Example 2: The link between permits (Part 13) and approvals (Part 9) in a Commonwealth area

A Part 13 permit (to kill, injure, take, trade, keep or move a member of a listed species or ecological community in or on a Commonwealth area) is not required for actions that are covered by a Part 9 approval. However, where a Part 9 approval has not been granted (for example, where a ‘not controlled action’ decision or a ‘particular manner’ decision is made), a Part 13 permit is still required. This means that even when the same action is found not to have a significant impact on a matter of national environmental significance (MNES) under one part of the Act, it could still be an offence under another (Chapter 1).

In some cases, the complexity of the State and Territory impact assessment and planning processes are equal to or greater than the federal requirements (LCA 2020). EPBC Act complexity is compounded by the way it overlaps and interacts with State and Territory regulatory arrangements.

Harmonisation of State and Territory laws, in concert with an overhaul of the EPBC Act, is a necessary recommitment to key goals of the IGAE of reducing duplication of process and harmonising actions on the environment across all levels of government.

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