3.3 - The construction of EPBC Act is outdated and its interactions with other Commonwealth legislation are unclear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. The Act was drafted 20 years ago and best-practice legislative drafting has evolved since this time.
There is a general need to remove duplication, apply consistency and simplify the law where possible. An example of this is the distributed nature of compliance and enforcement provisions throughout the EPBC Act, rather than a broad set of compliance and enforcement provisions that can be applied across it (Chapter 9). Management of heritage matters is a further example (Box 15).
Box 15 - Examples of EPBC Act inconsistency on heritage matters
Examples of inconsistency can be seen in the way the management principles and listing guidelines for World Heritage properties located within Australia interact with those of the National Heritage List.
World Heritage properties within Australia are automatically included on the National Heritage List. Under the current settings, managers of a place included in both lists must comply with 2 different sets of management principles. This introduces administrative uncertainty and confusion, despite both sets of principles having protection of the place as their goal.
There also exists no straightforward way to amend the boundary of a National Heritage property. This contrasts with World Heritage guidelines, which include provisions to make such amendments including an option for a minor modification to a boundary. This means places that are both World Heritage and National Heritage listed may have slightly different boundaries under each list, leading to confusion regarding management of the place and assessment of relevant development proposals.
The EPBC Act does not currently allow for serial listings. A serial listing is a group of sites that may not be in close proximity to each other, but that when considered collectively ‘tell a story that is of outstanding heritage value to the nation’ (AHC 2020). Songlines and trading routes are 2 examples of cultural heritage with component parts located separately but for which their cultural significance lies in the aggregation of these places.
Under the current settings, the listing process for related properties requires nominations for each component property to proceed separately, imposing an administrative burden with little discernible benefit and potential for perverse outcomes where protection is delayed.
By contrast, the Operational Guidelines for the Implementation of the World Heritage Convention make provision for the listing of multiple properties which may not necessarily lie in proximity to one another, but which are connected by factors such as historico-cultural, geological, or ecological significance and which, as a series, exhibit Outstanding Universal Value (UNESCO 2012). For example, the 11 places that make up the Australian Convict Sites.
Many clauses in the EPBC Act are unnecessarily wordy, which makes them hard to read. For example, section 133(1):
After receiving the assessment documentation relating to a controlled action, or the report of a commission that has conducted an inquiry relating to a controlled action, the Minister may approve for the purposes of a controlling provision the taking of the action by a person.
The level of detailed prescription in the EPBC Act is not consistent with the Legislation Act 2003, the Regulatory Powers (Standard Provisions) Act 2014 or the Acts Interpretation Act 1901. Examples of this include:
- The level of prescription in the Act on how an instrument is revoked or amended makes it difficult to amend that instrument where it is redundant or no longer has the intended effect.
- Instruments made under the Act can be amended by other instruments, leading to legal questions about their status. For example, heritage lists are published on the Department’s website, but can be amended by gazette notices (for inclusion), notifiable instruments or legislative instruments (for removal of places, depending on the reason for removal).
The interrelationships between the EPBC Act and other laws are not clear. This arises because definitions of terms, processes and outcomes set out in the Act do not always align or operate in conjunction with other legislation.
There is a range of Commonwealth legislation that directly or indirectly interact with the EPBC Act. Resolving the tension between different legislation is beyond the scope of the Review. However, any redrafting of the Act needs to explicitly consider the connections across the range of Commonwealth legislation to remove inconsistencies and conflicts.