Final report

Chapter 4 - Trust in the EPBC Act

October 2020

Key points

The community and industry do not trust the EPBC Act and the regulatory system that underpins its implementation. A dominant theme in the 30,000 or more contributions received by the Review is that many in the community do not trust the EPBC Act to deliver for the environment.

The community and industry fundamentally don’t believe, with good reason, that decisions made under the EPBC Act can achieve the outcomes they want. The avenues for the community to substantively engage in decision-making are limited. Poor transparency further erodes trust.

The lack of trust is evident in high community interest in development applications, high-profile public campaigns, legal challenges to EPBC Act decisions, and a growing rate of both Freedom of Information (FOI) applications and requests for statements of reasons.

The EPBC Act is not trusted by industry. They generally view it as cumbersome, pointing to duplication, slow decision-making, and legal challenges being used as a tool to delay projects and drive up costs for business (often called ‘lawfare’).

Access to judicial review remains important for the rule of law and the effectiveness of the EPBC Act over time. The ability of the public to hold decision-makers to account is a fundamental foundation of Australia’s democracy. To characterise these types of actions as ‘lawfare’ misrepresents the importance of legal review in Australian society.

The key reforms recommended by the Review are to:

  • establish a comprehensive advisory committee structure to provide confidence that decision-makers have access to the best available environmental, cultural, social and economic information
  • improve community participation in decision-making processes, including through incorporation in the National Environmental Standards, and the transparency of both the information used and the reasons for decisions
  • retain extended standing provisions, but amend the settings for legal review to provide for limited merits review for development approvals. Legal challenges should be limited to matters of outcome, not process, to avoid litigation that does not have a material impact on the outcome.

4.1 - The community does not trust the EPBC Act is delivering for the environment

The EPBC Act is broadly perceived as ineffective at protecting the environment, with a lack of clear outcomes, weak compliance and enforcement, and ineffective environmental monitoring and evaluation driving mistrust. The EPBC Act is not seen as being able to deliver environmental protection through its ordinary operation, so legal challenge on procedural grounds is sometimes used by the community to slow or attempt to stop development. However, the number of public interest challenges has been limited and most of these challenges have been on issues that have a high significance to the community. Third-party enforcement rights are important in the absence of effective and transparent decision-making.
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4.2 - Community participation is limited to process – they do not feel heard

The processes of the EPBC Act limit avenues for community participation in decision-making, restricting avenues for the community to raise concerns. The growth in community interest in environmental decisions is indicative of the degree of mistrust. People want to know why decisions are made and want to contribute to decisions that affect them and Australia’s environment. The community seeks information or influence through whatever means possible. Industry perceive the EPBC Act to be cumbersome and prone to unnecessary delay.
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4.3 - Recommended reforms

Improved community participation and consultation can ensure the right information is considered in decision-making. Community confidence and trust could be enhanced by the provision of transparent, independent advice. A comprehensive advisory committee structure should be established to provide confidence that decision-makers have access to the best available information. Extended standing should be retained, and provision should be made for limited merits review ‘on the papers’. These reforms should address the reasons the community chooses legal challenge over other mechanisms by providing the necessary access to the law demanded of modern regulatory practice.
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