3.4 - Recommended Reforms
Complexity of a policy area necessitates a degree of complexity in legislation. There is general acceptance that the core functions of the EPBC Act are all necessary to implement Australia’s international obligations and to achieve national environmental outcomes.
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.
The controversial and contentious nature of some parts of the EPBC Act result in political sensitivity about the Act as a whole, making administrative amendments or amendments to less controversial parts of the Act difficult. Successive governments have been reluctant to propose amendments unless absolutely unavoidable, leading to a hesitation even within the Department to recommend amendments. Such opportunities are seen as out of reach, when they should be routine. Largely uncontested changes to less controversial parts of the Act (such as some related to wildlife trade or the management of Commonwealth reserves) have suffered from this unwillingness to amend the Act.
3.4.1 - Make known improvements to the EPBC Act in its current form
Key problems with the EPBC Act, and the potential solutions for them, have been long-known. In the short term, legislative amendments to the Act are required to address known inconsistencies, gaps, and conflicts in the Act. Submissions to the Review have indicated this to be a priority (Law Council of Australia 2020).
Opportunities to reduce process prescription
Process prescription must be addressed both in how the EPBC Act is constructed as well as how it is implemented. Opportunities to reduce prescription include:
- reducing the number of statutory tests – many different statutory tests apply to a decision. For example ‘take into account’, ‘have regard to’ and ‘consider’ different documents or requirements
- clarifying the information that must be before the decision-maker as part of a briefing (and the form in which it should be provided)
- removal of requirements for publication of notices in newspapers – these and similar reductions in process prescriptions affecting transparency should be offset by corresponding improvements in the accessibility of information and the use of alternative media to ensure increased overall transparency of the Act.
Resolving the connection between Part 9 and Part 10
The long-standing problems relating to the connection between approvals (Part 9) and strategic assessments (Part 10) should be addressed:
- The inability to vary a program once endorsed makes a Part 10 approval ‘frozen in time’ and unable to respond to changes in information and circumstances. For example, strategic assessments are unable to deal with technological advances that, while inconsistent with an approved plan, would result in both environmental and productivity improvements. This means strategic assessments that operate for long periods of time are unable to be changed to achieve the environmental outcomes envisaged, including those in the National Environmental Standards.
- Strategic assessments are made on a policy, plan or program, which commonly include commitments that must be fulfilled by different people. The consequences of a failure to implement a commitment in an endorsed policy, plan or program are unclear. For example, it is unclear whether a person can rely on a strategic assessment approval if a commitment has not been fulfilled.
- Strategic assessments give approval for many unidentified persons to undertake the approved action(s) or class of action. In most cases, there is no identified ‘approval holder’ for a Part 10 approval. This makes it difficult to vary the conditions of the strategic assessment approval where the consent of the approval holder is required, or to revoke or suspend a Part 10 approval, because there are legal difficulties in providing procedural fairness.
Rework the EPBC Act to ensure delivery of the fully functional National Environmental Standards
The EPBC Act was designed to deliver a prescriptive, process-based approach to environmental protection. In its current form, the Act cannot deliver or fully realise the recommended reforms with respect to:
- implementing enforceable National Environmental Standards (Chapter 1) and regional planning (Chapter 8)
- establishing the required accreditation, auditing and oversight functions (Chapter 7)
- embedding monitoring, evaluation and reporting across multiple scales of decision-making (Chapter 11)
- establishing the necessary institutional and governance arrangements including comprehensive advisory committees and strong, independent compliance and enforcement (Chapter 4 and Chapter 9).
It is expected that different parts of the recommended legislative changes will take varying amounts of times to be developed. For example, the data and information supply chain is highly complex and is likely to take several years to build. Reform of the EPBC Act should be carried out in phases to allow the proper development of different foundational components of the recommended reform package (Chapter 12).
Restructure and simplify the law
In the long term, comprehensive redrafting of the EPBC Act (or related Acts) is required. Redrafting should be framed around core principles for legislative drafting (OPC 2016)(Box 16). For example, the Fair Work Act 2009 was drafted using principles including:
- Policy simplification (where possible) should be carried out first.
- Material of most relevance to the reader should be placed upfront.
- Important concepts should be clearly defined.
- Language and sentence structure should follow guidance to reduce complexity.
- The overall structure of legislation and its provisions should be carefully constructed for readability.
- Only necessary detail should be included, and detail should be in the right place.
Box 16 - Better practice lawmaking
Well-designed and well-implemented regulation promotes certainty and minimises costs for business and the community. Good design also enables effective administration and enforcement of the law. Key elements for creating good regulatory design (OPC 2016, PC 2020) are:
- effective consultation and community engagement
- clearly defined objectives, policy settings and operational frameworks
- clear regulatory roles, responsibilities and functions
- adequate resourcing for regulatory bodies, including staff with an understanding of the issues they are regulating.
In addition, regulator conduct must provide clarity and predictability. An open and transparent process promotes impartiality and accountability and helps build community confidence. Regulators must be consistent in applying the law and supporting policy and monitoring and enforcing compliance.
Plain English guidance material should accompany legislation to aid interpretation and use. This material should be easily accessible and updated regularly.
Split the EPBC Act into logical categories
When simplifying the legislation, consideration should be given to dividing the EPBC Act – or reworking how the parts of the Act are separated and relate to each other – along functional or operational lines by creating separate legislation for some or all of the Act’s functions including:
- biodiversity and ecosystem management, to regulate the recovery of natural systems and nationally important biota (via National Environmental Standards and regional planning)
- environment and heritage protection, to regulate EIA decision-making in relation to matters of national environmental significance
- wildlife trade restrictions, to meet international obligations
- protected areas management, to regulate Commonwealth reserves and heritage places and to administer Commonwealth reserves
- environmental data and reporting, to administer data coordination, and national and international reporting
- institutional arrangements, including those for monitoring, compliance, enforcement and assurance
- national biodiversity markets and trusts.
Any legislatively separate areas should be clearly integrated by:
- requiring decision-making across relevant Acts to comply with the National Environmental Standards, accreditation, and independent oversight and audit (Chapter 1 and Chapter 7).
- ensuring consistent data and reporting requirements, in line with recommended reforms for the monitoring, evaluation and reporting of the outcomes from the national system for environmental management (Chapter 11).
Creating multiple Acts could also prove to be more cumbersome than the current single piece of legislation. Targeted legislation can bring greater focus to specific issues, but the trend across many jurisdictions has been to have increasingly comprehensive administrative processes. The Review recommends considering whether separation of elements of the EPBC Act is beneficial. However, an informed decision is not possible until after the policy direction agreed by the Commonwealth Government and detailed legislative drafting is scoped.
Legislative reforms should be redrafted in line with modern, best practice drafting guidance. Immediate amendments should be made to:
- fix inconsistencies, gaps and conflicts in the EPBC Act to make it easier to understand and work with
- implement enforceable National Environmental Standards; improve the durability of bilateral agreements; independent oversight and audit; and compliance and enforcement.
Over a 2-year transition period, a comprehensive reworking of the EPBC Act should be undertaken to fully implement the reforms recommended by this Review and to deliver an effective legislative framework.
- The Act should be restructured to clarify and simplify the functions of the Act and how they interact.
- Redrafting and restructuring of the Act should explicitly consider its interaction with other Commonwealth legislation to remove inconsistency and to improve operational efficiency. To deliver the full results, this may require consequential changes in other legislation.
- Redrafting should include consideration of dividing the Act, such as creating separate pieces of legislation for its key functional areas.