Chapter 4 - Trust in the EPBC Act
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.