4.3 - Recommended reforms
An aim of the key reforms recommended by the Review is to minimise the demand for formal review, while providing the necessary access to the law demanded of modern regulatory practice. These reforms seek to address the reasons the community chooses legal challenge over other mechanisms. The reforms will strengthen the capacity for improvements to be generated from effective scrutiny and testing of decision-making through formal legal review.
A key driver of low trust in the EPBC Act is the lack of confidence that it is contributing to good environmental outcomes. This Review recommends a suite of reforms focused on clearly defined outcomes (via National Environmental Standards) to improve decision-making and the effectiveness of the Act. Demonstrating an improvement in delivering outcomes is the basis for lifting trust in the Act and its operation.
The setting of National Environmental Standards (Chapter 1) and the development of regional plans (Chapter 8) are key mechanisms to set the clear outcomes that the EPBC Act intends to achieve. Many of the reform directions recommended in other chapters seek to provide greater confidence that decisions contribute to achieving these outcomes. These include:
- a quantum change in the data and information that underpins the operation of the Act (Chapter 10)
- effective, independent monitoring, compliance and enforcement (Chapter 9)
- the development of effective frameworks for monitoring and evaluating the operation of the Act and the broader national environmental management system (Chapter 11)
- an independent Environment Assurance Commissioner, providing comprehensive oversight and audit of the effectiveness of the Act and its operation (Chapter 7).
Many of the reforms recommended will also reduce the time taken for regulatory decisions. Clear rules (Chapter 1), greater integration with other regulators (Chapter 5) and better information, data and regulatory systems (Chapter 10) will speed up the time taken to receive environmental approval.
4.3.1 - Improve community participation in decision-making and transparency of information
A fundamental reform is to facilitate adequate time for the community to consider information and respond to it. Improved community participation in processes can save time by ensuring that the right information surfaces at the right time and can be considered in the decision-making process. Best-practice community consultative processes are well established and the National Environmental Standard for transparent processes and robust decisions should include specific requirements for community consultation (EIANZ 2020).
Changes are required to provide greater transparency and community access to information about decisions. This includes greater transparency of:
- the stage of the decision-making process the decision is up to
- opportunities for community participation
- information that is being considered in the decision-making process
- the reasons for decisions.
Better information management systems (Chapter 10) that are interactive and connected digitally can facilitate efficient access to information. Plain English guidance about how the EPBC Act applies is also a critical component of transparency and should be bolstered (Box 19).
Box 19 - Examples of plain English guidance material
EPBC Act stakeholder information kit
The Department has recently released a new online information kit about environmental impact assessments to help explain in plain English the EPBC Act, the Department’s role, and the assessment processes. This information has been designed to help stakeholders identify the information they need and to support them to navigate the Department’s website. This website also uses a more streamlined structure to direct users to the most relevant information first (DAWE 2020a).
Draft guide to nationally protected species significantly impacted by paddock tree removal
Paddock trees are small groups of trees that are isolated and scattered. These trees are a feature of agricultural landscapes across Australia that contribute to salinity mitigation, reducing erosion, recycling nutrients and providing shade and shelter. There are circumstances when removing paddock trees is required for improving access for and efficiency of farming operations. However, paddock trees contribute to the viability of threatened species populations by providing nesting, roosting and foraging habitat and maintaining connectivity between larger patches of vegetation (DAWE 2020b).
The Department is currently seeking comment on a draft guide, which seeks to provide clear information on whether the removal of a paddock tree will need approval under national environmental law.
The Commonwealth Government should increase the transparency of the operation of the EPBC Act by:
- immediately improving the availability of information as required by the National Environmental Standards
- immediately improving the accessibility of the Act through plain English guidelines and targeted communication
- immediately implementing arrangements to publish reasons for Commonwealth decisions under Parts 9 and 10 of the Act
- in the second tranche of reform, amend the Act to require publication of all information relevant to, and the reasons for, decisions made under the Act. Processes and systems should be implemented to support greater transparency.
4.3.2 - Strengthen independent advice to provide confidence that decision-makers are using best available information
The community is skeptical that EPBC Act decisions are made free of inappropriate political interference. Lack of trust is an underlying driver behind calls for independent authorities or commissions to make decisions (WGCS 2020).
This solution is not supported by the Review. It is entirely appropriate that elected representatives (and their delegates) make decisions that require competing values to be weighed and competing national objectives to be balanced. It is important that the law is clear and that core regulatory functions are carried out effectively, rather than decision-making being ‘independent’.
That said, community confidence and trust in the process could be enhanced by the provision of transparent, independent advice on the adequacy of information provided to a decision-maker. The statutory advisory committee structures in the EPBC Act should be recast. An Ecologically Sustainable Development (ESD) Committee should be established, comprising an Independent Chair and the Chairs of subject-specific committees:
- Indigenous Engagement and Participation Committee – to advise on the co-design of the National Environmental Standard for Indigenous engagement and participation in decision-making and its implementation.
- Biodiversity Conservation Science Committee – to advise on the status of migratory species, and threatened species and ecological communities and actions needed to improve their condition in regional recovery plans.
- Australian Heritage Council – as established under the Australian Heritage Council Act 2003 to provide advice on heritage matters.
- Water Resources Committee – to advise on matters related to Ramsar wetland and the impacts of projects subject to the water trigger (Chapter 6).
The national environmental information supply chain custodian (Chapter 10) should be a member of the ESD Committee. Other members may also be needed to ensure the ESD Committee has the skills and expertise to execute its functions.
The membership of the ESD and subject-specific committees, and specific obligations regarding the National Environmental Standards and transparency, are outlined in Box 20.
Box 20 - Key roles and responsibilities for the statutory advisory committees
A comprehensive statutory advisory committee structure is required to provide structured advice and stewardship for the system of National Environmental Standards. Specific areas of advice are:
- species and ecological communities – their status, trends and management and recovery requirements
- the adequacy of data and information available for decision-making
- Indigenous engagement and participation, including co-design of decision frameworks
- Australian heritage assets – their status, trends and management
- water resources – their status and trends, and the potential and realised impacts of development.
Ecologically Sustainable Development (ESD) Committee
The role of the ESD Committee should be to provide transparent policy advice to the Environment Minister on ESD status and trends, particularly in relation to the National Environmental Standards.
The ESD Committee should provide specific, formal advice on:
- whether environment and heritage outcomes are being achieved
- the development and maintenance of the National Environmental Standards
- the framework and priorities for strategic national plans and regional plans
- the overall adequacy of the environmental, social, cultural and economic information for decision-making and the framework in which this information is used
- a monitoring and evaluation framework for the EPBC Act, including the strategy to identify and deliver the long-term, systematic monitoring required to understand trend and condition of matters of national environmental significance (Chapter 11).
The ESD Committee is responsible for reporting on environmental performance under the EPBC Act, including achievement of the outcomes as set out in the National Environmental Standards for MNES (Chapter 11).
The ESD Committee is an oversight committee. It should coordinate the work of all the statutory advisory committees to inform advice to decision-makers.
The ESD Committee is specifically responsible for overall committee governance, including managing specific advice requests from the Environment Minister. It is also responsible for tasking committees (including to assess and update the National Environmental Standards), collaboration on cross-cutting issues, and national-level interpretation of data and information.
Indigenous Engagement and Participation Committee (IEP Committee)
The IEP Committee should advise on the co-design of reforms for Indigenous engagement and mechanisms for the proper use and employment of Indigenous knowledge and views.
IEP Committee membership should be expertise-based, include a majority of Indigenous representation and have an Independent Chair.
The IEP Committee should be specifically responsible for providing the Environment Minister with advice on a National Environmental Standard for Indigenous engagement and participation in decision-making, and for monitoring and reporting on the effectiveness of its implementation.
The IEP Committee should advise the Environment Minister on the application of this National Environmental Standard to decision-making, including:
- the making and review of all National Environmental Standards
- listing decisions
- Commonwealth-led national and regional planning
- the incorporation and use of Indigenous knowledge in the information supply chain
- other decisions, as requested.
Biodiversity Conservation Science Committee (BCS Committee)
The BCS Committee should advise on the listing and status of threatened species and ecological communities and actions needed to improve their condition.
BCS Committee membership should be expertise-based and must include an Independent Chair and the Threatened Species Commissioner.
The BCS Committee should be specifically responsible for the National Environmental Standard for MNES (threatened species and ecological communities) and National Environmental Standard for MNES (migratory species), publishing their advice about species and ecological communities, and recovery and regional planning advice.
Australian Heritage Council (AHC)
The AHC should retain its role established under the Australian Heritage Council Act 2003 to provide advice on national and Commonwealth heritage matters.
AHC membership should be expertise-based and include an Independent Chair and at least one Indigenous Australian representative with relevant experience.
The AHC should be specifically responsible for the National Environmental Standard for MNES (National Heritage), publishing data and information about heritage matters, and providing advice on heritage management plans.
Water Resources Committee (WR Committee)
The WR Committee should provide scientific advice in relation to proposed developments that are likely to have a significant impact on water resources. Water resources are defined in the Water Act 2007.
WR Committee membership should be expertise-based and must include an Independent Chair and at least one member with agricultural or economic expertise.
The WR Committee should be specifically responsible for:
- the National Environmental Standard for MNES (water resources) and National Environmental Standard for MNES (Ramsar wetlands)
- publishing their advice about water resources
- establishing priorities for research to improve scientific understanding of the impacts of developments on water resources
- collecting, analysing, interpreting and disseminating scientific information in relation to the impacts of development on water resources.
The Environment Minister has a specific role to implement governance arrangements including the establishment, terms of reference and membership of the statutory advisory committees.
The ESD Committee should provide transparent advice to the Environment Minister to inform decisions. This should include policy advice on the:
- design and implementation of the monitoring and evaluation framework of the EPBC Act
- making of National Environmental Standards
- the framework and priorities for strategic national plans and Commonwealth-led regional plans
- overall adequacy of the environmental, social, cultural and economic information provided to the available for decision-making.
The Environment Minister could request, and the ESD Committee provide, transparent policy advice on other issues or specific decisions where they have relevant expertise such as:
- whether the processes that underpin the recommendation have been conducted in accordance with relevant National Environmental Standards (for example, for community or Indigenous engagement)
- the benefits and impacts of decisions, such as listings of threatened species and ecological communities, and the adequacy of measures to protect listed matters
- consistency of a proposed decision, such as Commonwealth-led regional plans or an individual approval, with the National Environmental Standards.
Transparency of the statutory advisory committee arrangements should occur at multiple scales:
- The ESD Committee should be required to report annually on environmental and heritage outcomes in line with the monitoring and evaluation framework for the EPBC Act (Chapter 11) – making specific reference to the National Environmental Standards – as well as the functioning of the committee framework.
- The ESD Committee should report annually on the functioning of all committees, including advice provided and areas of focus.
The EPBC Act should require the Environment Minister to explain how the advice of the ESD Committee was considered.
The EPBC Act should be immediately amended to recast the statutory committees to create the Ecologically Sustainable Development Committee, the Indigenous Engagement and Participation Committee, the Biodiversity Conservation Science Committee, the Australian Heritage Council, and the Water Resources Committee. The Ecologically Sustainable Development Committee should be an overarching committee with responsibility for providing advice on National Environmental Standards, planning and implementation, and coordination across all the committees.
4.3.3 - Retain standing with a refined, limited merits review mechanism
Improving participation and transparency will mean that stakeholders will be less likely, and have less justification, to resort to legal challenge. The limited merits review model recommended requires information to be available as part of the decision-making process. Therefore, more complete information is available to make the decision rather than being withheld for legal ‘forum shopping’.
The legal review framework should not be the primary determinant for the performance of the EPBC Act. The ability of the public to hold decision-makers to account is a fundamental foundation of Australia’s democracy and improves the performance of law over time. To characterise legal review as ‘lawfare’ is artificial and misrepresents the importance of legal review in Australian society. Limited merits review and judicial review operating together enables improvements to decision-making to be identified over time, if available at the right points in the process (ARC 2007).
Effective, efficient and transparent decisions based on clear outcomes should reduce the demand for legal review. Implementing the package of recommended reforms, including National Environmental Standards, transparent decisions based on quality data and information, monitoring of environmental outcomes, improved compliance and enforcement and a comprehensive independent oversight, will reduce the need for legal challenges. This is because the underlying reasons for these challenges will have been addressed. For example, challenges on the basis of a lack of visibility of the information used in a decision will not be justifiable if information is transparently available.
Broad standing remains an important feature of environmental legislation, particularly given the presence of collective harm resulting from damage to environmental or heritage values. Individual loss is not always identifiable or quantifiable. The inability to rely on individual loss, means that the cost of rectifying or restoring environmental damage falls to the tax-payer.
The courts already have the capacity to deal with baseless or vexatious litigation. Litigation with no reasonable prospect of success can be dismissed in the first instance. Both the Federal Court and the High Court have the capacity to maintain lists of vexatious litigants, who are prohibited from taking legal action without permission. This can also impact a litigant’s ability to retain counsel.
The likely result in removing extended standing is that individuals with a demonstrable interest in a project would be co-opted to join litigation driven by others, or that courts would continue to grant standing to applicants in line with previous case law. It also means that hearings would be lengthened to consider arguments as to a person’s standing before the substantive issues are considered.
Removing the current standing provisions in the EPBC Act would mean that general standing provisions would apply. This would mean some uncertainty as the courts revisit the application of standing in the environment context (Wilcox 2015). The scope of general standing provisions under Commonwealth law is wider than under the Act. It is possible that removing the current extended standing arrangements could lead to an increase in challenges.
The Review does not agree that the current standing provisions in the EPBC Act (section 487) should be removed or changed. The Review has found no reason to broaden standing under the EPBC Act, even though open standing (as opposed to extended standing as set out in section 487) would be unlikely to result in a deluge of cases. As highlighted in the submission from the Law Council of Australia, the case law supports a finding that standing is not interpreted broadly by the courts because it is aimed at protecting the public interest rather than private concerns (LCA 2020).
Court time should be optimised by limiting vexatious litigation and litigation with no reasonable prospect of success. Reforms should focus on:
- improving transparency of decision-making, to reduce the need to resort to court processes to discover information
- limiting legal challenges to matters of outcome, not process, to reduce litigation that would not have a material impact on the outcome.
In this light, it may be beneficial for the EPBC Act to require an applicant who seeks to rely on the extended standing provisions to demonstrate that they have an arguable case, or that the case raises matters of exceptional public importance before it can proceed.
Form of legal review
Legal review processes aim to ensure that decisions are:
- made correctly in accordance with the law (judicial review)
- ‘preferable’ – that is, within the range of decisions possible under the law, the best decision is made to meet the intent of the relevant legislation based on the relevant facts (merits review) (AGD 1999, ARC 2007).
In a mature regulatory framework, judicial and merits review mechanisms are complementary. They operate in concert to test and refine decision-making over time to ensure that regulation achieves its objectives and is responsive to changing circumstances.
Full merits review is not advised. The evidence in support of full merits review is limited and indicates that it could lead to adverse consequences. Opening decisions to the admission of new documentation or materials for consideration – on appeal or review – delays decisions without necessarily improving outcomes. It can also result in the applicant receiving a substituted decision that is preferable or more complete in some way, leading to withholding of important information and ‘forum shopping’. Box 21 outlines elements of a limited merits review (LMR) model for development assessment and approval decisions under the EPBC Act.
Box 21 - Elements of limited merits review
Decision-making points in environmental impact assessment (EIA)
Relevant decisions are the approval decision and the application of conditions. Section 78 of the EPBC Act provides for reconsideration of a decision in limited circumstances. This already constitutes a limited internal review process for controlled action decisions, so limited merits review (LMR) is not necessary for these decisions.
Equivalent access to legal review should also be available under an accredited decision-making arrangement.
Limited merits review available on certain grounds
The grounds for LMR should relate to the consideration of decisions where the exercise of discretion was incorrect in the circumstances, or the decision was unreasonable in the circumstances.
LMR should be limited to the material available at the time of the original decision.
Standing for limited merits review
With the written advice of senior counsel, directly affected or interested persons or bodies should be able to apply for an LMR. This includes proponents. The claim must be a valid claim with reasonable prospects for success. Applications should only be available within defined time frames. However, noting the complexity of EPBC Act matters, the community may require flexibility or sufficient time for to understand the nature of the decision.
Limited merits review outcomes
LMR should result in either the decision being affirmed or referred back to the original decision-maker with recommendations on remaking or varying the decision. LMR findings should be required to be provided within a reasonable time frame.
Impact on judicial review
An application for LMR cannot preclude the availability of judicial review.
Limited merits review ‘on the papers’ (that is based on the information available to the original decision-maker) has benefits in terms of:
- ensuring decisions are ‘reasonable’ given the material at the time of the decision
- contributing to ensuring decisions are of high quality – that is, transparent and consistent decisions, contested to a degree that is not detrimental to the effectiveness of regulation, and less open to gaming.
However, LMR must be carefully designed to minimise perverse outcomes. The primary consideration is a focus on good, transparent decision-making by the regulator. Merits (and judicial) review should be a last resort to ensure correct decisions are being made. Limits on the ability to exercise merits review should be clear and in the interests of outcomes of the legislation. A successful LMR approach should:
- support long-term environmental and heritage outcomes
- ensure interested parties can meaningfully participate in decision-making processes
- result in merits review applications being the exception rather than the rule
- not enable ‘forum shopping’ nor encourage people to hold back information at the original decision point
- be efficient and cost-effective
- maintain regulatory certainty.
Introducing new legal review processes into the current prescriptive EPBC Act arrangements is likely to lead to greater administrative complexity and uncertainty. The improvements to decision-making recommended in this Review (Chapter 3) are a necessary precursor to ensuring LMR is efficient and focused on environmental and heritage outcomes and not process.
The EPBC Act should retain the current extended standing provisions. In the second tranche of reform, the Act should be amended to provide for limited merits review for development approval decisions but be restricted:
- by set time frames for applications
- to the papers at the time of the original decision
- to matters that will have a material impact on environmental and heritage outcomes
- to where senior counsel advice is that there is a reasonable likelihood of the matter proceeding.