Final report

Chapter 6 - Commonwealth decisions and interactions with other Commonwealth laws

October 2020

Key points

The EPBC Act operates in a way that seeks to recognise other Commonwealth environmental regulatory and management frameworks, including the management of Commonwealth fisheries, Regional Forest Agreements (RFAs) and offshore petroleum activities.

As mentioned in Chapter 3, the interplay between the Act and these other frameworks is complex and onerous, which leads to inefficiencies. Often the arrangements are not supported by robust systems and assurance, which can compromise effectiveness in achieving intended environmental outcomes.

The environment does not follow jurisdictional or institutional boundaries and National Environmental Standards should be applied across Australia.

Even with greater accreditation of States and Territories and other parties, the Commonwealth will have an ongoing role in directly assessing and approving some developments. These Commonwealth-led project assessment and approval processes must be as efficient as possible.

The EPBC Act includes requirements for permitting for wildlife trade intended to meet Australia’s international commitments under the Convention on the Conservation of Migratory Species (Bonn Convention) and Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

The wildlife trade provisions in the EPBC Act are inflexible and do not always align with international requirements. In many cases the laws are unnecessarily burdensome but in other cases they are insufficient to deliver on Australia’s commitments.

The key reforms recommended by the Review are:

  • Make immediate reforms to Regional Forestry Agreements to ensure environmental protections consistent with the National Environmental Standards, equivalent to those of the EPBC Act, and to provide for effective Commonwealth oversight.
  • The Review’s accreditation model (Chapter 7) should be considered for all situations to ensure effective environmental outcomes and to improve efficiency, including for decisions made by other Commonwealth regulators interacting with the EPBC Act.
  • A National Environmental Standard should be developed that considers impacts to the whole of the environment for Commonwealth actions and actions impacting on Commonwealth land.
  • Assessment pathways should be rationalised and adequate cost-recovery processes implemented to ensure a ‘user pays’ approach to environmental impact assessment.
  • Amend wildlife trade provisions to ensure environmental protections are consistent with international obligations. These amendments will improve the effectiveness and efficiency of these provisions, including by enabling proportionate compliance and enforcement responses, and reducing instances where wildlife permitting could be subject to abuse by applicants.

6.1 - Existing accreditation arrangements with other Commonwealth agencies

The EPBC Act operates in a way that recognises other environmental regulatory and management frameworks regulated by the Commonwealth. The Review considers that the provisions for Regional Forest Agreements are the most unacceptable and require immediate reform. The accreditation model should also be applied to the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) and the Australian Fisheries Management Authority (AFMA) using appropriate legislative amendments, and accreditation of actions by Commonwealth agencies (such as those currently covered by Section 160 of the Act) should occur only where they are consistent with the National Environmental Standards and accreditation model.
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6.2 - Actions by other Commonwealth agencies, where accredited arrangements are not in place

The EPBC Act provides protection of the environment from actions undertaken by Commonwealth agencies and actions on Commonwealth land. They require an assessment of the impacts to the ‘whole of the environment’, and there are no clear standards to drive consistency around what must be considered. The Commonwealth should develop a National Environment Standard for actions impacting on Commonwealth land and Commonwealth actions, to provide for a clear and consistent set of rules for whole-of-environment assessments that could also provide a national benchmark for environmental protections more broadly.
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6.3 - Commonwealth-led assessment processes are inefficient

The business and information systems that the Department uses for conducting assessments are antiquated and inefficient, and existing Commonwealth cost recovery arrangements are also not sustainable. Commonwealth assessment pathways should be rationalised to enable a risk-based approach to assessments that is proportionate to the level of impact on matters protected by the EPBC Act. Implementation should be supported by providing clear guidance, modern systems and appropriate cost recovery.
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6.4 - Wildlife trade and permitting

The wildlife trade provisions in the EPBC Act are inflexible and do not always align with international obligations. The EPBC Act should be amended to ensure environmental protections are consistent with international obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Convention on the Conservation of Migratory Species (Bonn Convention).. The EPBC Act and EPBC Regulations should be streamlined to reduce regulatory burden on wildlife trade permitting process, enable proportionate compliance and enforcement responses and amended to reduce instances where wildlife trade permitting may be subject to abuse by applicants.
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