5.2 - Recommended reforms

Previous processes to accredit decision-making have focused too heavily on prescriptive processes and lacked clear expectations and thresholds for protecting the environment in the national interest. 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 (Chapter 1). The Standards set clear outcomes and provide a legally binding way to reduce the complexity and fragility of the current accreditation arrangements in the Act.

In the short term, the National Environmental Standards should be applied through the current assessment and approval bilateral agreement provisions. For this to occur, Standards should be implemented through regulations, preferably based on a new provision in the Act. The regulations should also specify those matters required for the Commonwealth Environment Minister to be satisfied that the States and Territories will comply with the Standards. Agreements should be conditional on the States and Territories meeting the requirements of the Standards (Chapter 1) and subjecting themselves to the accreditation model outlined in Chapter 7.

In the longer term, the Act should be amended to fully replace the bilateral agreement provisions to enable the recommended accreditation model to be realised and efficient.

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. A shift to a standards-based approach with appropriate accrediting arrangements is a more effective way of ensuring environmental outcomes are being achieved in the national interest.

States and Territories should demonstrate that their environmental management systems, including development assessment and approval processes, other legislation, policies or investments, delivers on the requirements of the National Environmental Standards. States and Territories would have to transparently track, monitor and report on how different elements contribute to delivering an overall system that is consistent with the Standards.

The recommended accreditation model is not an all-or-nothing concept. The Commonwealth would need to retain its capability to conduct assessments and approvals:

• where the Commonwealth provides sole jurisdiction
• where accredited arrangements are not in place (or cannot be used)
• at the request of a jurisdiction
• when the Commonwealth uses its discretion to step in.

Such capability is essential to ensure that EPBC Act requirements can continue to be upheld in circumstances where other regulators are, for whatever reason, unable to accommodate national requirements in their processes. To weaken this capability would risk unnecessary delay for projects.

An effective accreditation approach provides confidence that accredited arrangements can deliver the National Environmental Standards and can be effectively monitored and audited. It provides certainty about when and where the Commonwealth can intervene to prevent serious or irreversible environmental damage or significant breach of the Standards. With strong oversight, it will facilitate a general uplift in overall regulatory standards and consistency.

The accreditation model recommended by this Review is in Chapter 7.