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Chapter 5 - Interactions with States and Territories

Key points

The EPBC Act is duplicative, inefficient and costly for the environment, business and the community.

The intergovernmental agreements of the 1990s have not delivered an effective framework for cooperation and integration of Commonwealth, State and Territory environmental regulation.

The interaction between Commonwealth and State and Territory laws and regulations leads to duplicative processes. Despite efforts to streamline these processes, significant overlap remains. A continuation of the piecemeal approach is a barrier to improving effectiveness and efficiency.

Past attempts to accredit States and Territories to make approval decisions that are consistent with the EPBC Act have been unsuccessful, due to lack of defined outcomes and concerns that decisions would be inconsistent with the national interest.

Reforms recommended by the Review provide confidence for the Commonwealth to accredit the processes and decision-making of other parties. This includes National Environmental Standards that set clear outcomes, improved data and information, and a comprehensive framework for monitoring and evaluating environmental outcomes.

There should be no barriers to accreditation where a State or Territory can demonstrate they can meet the National Environmental Standards and be subjected to rigorous, independent oversight by the Commonwealth.

Effective accreditation arrangements would enable Commonwealth requirements to be met and to operate in a more integrated way with State and Territory regulation to deliver national environmental and heritage outcomes. Accreditation allows for a single pathway or ‘single-touch’ for development assessment and approval decisions.

The Review recommends that the EPBC Act be amended to enable durable accreditation arrangements where the States and Territories demonstrate they meet the National Environmental Standards and will allow rigorous oversight by the Commonwealth, including comprehensive audit arrangements.

5.1 - There is duplication with State and Territory regulation

Efforts to harmonise and streamline with the States and Territories have not gone far enough and duplication remains. Assessment bilateral agreements are in place with all 8 jurisdictions. Approval bilateral agreements have never been implemented. Despite efforts, to streamline the Act still duplicates State and Territory processes for development approval.

5.2 - Recommended reforms

The National Environmental Standards recommended by this Review provide a legally binding pathway to accredit the regulatory processes or management arrangements of other parties, while at the same time ensuring the aims and objectives of the EPBC Act are achieved. Pursuing greater accreditation is not about the Commonwealth relinquishing its environment protection and biodiversity conservation responsibilities. Rather, the recommended reforms would enable the Commonwealth to meet its obligations more effectively and efficiently.