Final report

6.1 - Existing accreditation arrangements with other Commonwealth agencies

October 2020

The EPBC Act operates in a way that recognises other environmental regulatory and management frameworks regulated by the Commonwealth, including Commonwealth fisheries, Regional Forest Agreements (RFAs) and frameworks that regulate activities on Commonwealth land, in Commonwealth waters, and Commonwealth actions. Different mechanisms in the EPBC Act have been used to streamline assessments and approvals through other Commonwealth agencies, but there is significant variation in the effectiveness of these arrangements. The strategic assessment provisions of the Act, although not specifically designed for this purpose, have been used to remove the need for an EPBC Act approval where an action is taken in accordance with these arrangements (for example, Commonwealth management of offshore petroleum activities). Each of these arrangements are explored in this section.

6.1.1 - Offshore petroleum

The National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) is the Commonwealth regulator for offshore energy activities in Commonwealth waters. Since 2014 significant streamlining of the environmental regulation of offshore energy activities has been achieved through the accreditation of NOPSEMA to approve offshore petroleum and greenhouse gas activities, via a strategic assessment made under Part 10 of the EPBC Act.

The strategic assessment endorsed NOPSEMA’s environmental management authorisation process. Activities undertaken in a way that are consistent with the authorisation process do not need to be separately referred, assessed and approved under the EPBC Act.

NOPSEMA is responsible for compliance and enforcement under the strategic assessment, and the Environment Minister is responsible for checking compliance with the endorsed arrangements.

The current settings for strategic assessments have significant limitations (Chapter 3), resulting in inflexibility in the streamlining arrangements in place with NOPSEMA. The strategic assessment endorsed the NOPSEMA’s arrangements in place at the time of the agreement. In effect, this froze them in time, which has invariably stifled continuous improvement and further streamlining even when there are opportunities to do so that do not compromise environmental outcomes.

6.1.2 - Commonwealth fisheries

The Fisheries Management Act 1991 Act implements management arrangements for Commonwealth-managed fisheries. It enables the Australian Fisheries Management Authority (AFMA) to manage permits and Statutory Fishing Rights (registers), compliance and enforcement, and declared prohibited activities in Commonwealth marine areas. Commonwealth-managed fisheries are strategically assessed under Part 10 of the EPBC Act.

AFMA is responsible for the day-to-day management and compliance of Commonwealth fisheries. Assessments under the EPBC Act are conducted on the environmental performance of all export fisheries via Part 13A assessments. Part 10 strategic assessments provide additional assurance that Commonwealth-managed fisheries are managed in an ecologically sustainable way over time.

EPBC Act assessments of fisheries are conducted against well-established guidelines that assess the ecological sustainability of management arrangements (DEWR 2007). Lower-risk fisheries are now assessed on a 10-yearly rolling basis. Higher-risk fisheries, including those that interact with protected species such as dolphins, dugongs and sea lions, are generally assessed every 3 years.

Parts 13 and 13A of the EPBC Act provide processes to assess impacts to protected marine species (including those protected under the Bonn Convention, Box 23) and ensure compliance with export controls and international wildlife trade rules. The assessments of fisheries, export controls and permitting processes are generally undertaken in parallel for Commonwealth-managed fisheries and all export fisheries.

The accredited arrangements with AFMA provide an effective framework for managing protected species under the EPBC Act. The key features of this arrangement that support its effectiveness are:

  • the presence of a regulator (AFMA) supported by its own robust legislative framework
  • adequate compliance and enforcement capabilities (implemented by AFMA)
  • separate strategic oversight of the system by the Department of Agriculture, Water and the Environment (via strategic assessments), which provides an assurance mechanism to ensure outcomes are achieved.

There are opportunities to streamline the multiple assessment and permitting processes needed to undertake commercial fishing operations in Commonwealth waters or jointly managed fisheries (section 6.4).

6.1.3 - Regional Forest Agreements

A Regional Forest Agreement (RFA) is a 20-year regional plan that is agreed between a state and the Commonwealth for the management of native forests. RFAs aim to balance economic, social and environmental demands on forests and seek to deliver ecologically sustainable forest management, certainty of resource access for the forest industry and protection of native forests as part of Australia’s national reserve system.

The Regional Forest Agreement Act 2002 (RFA Act) is Commonwealth legislation under which RFAs are made. RFAs must consider the conditions outlined in Box 22. These provide the benchmark for protection of environmental values of the areas covered by RFAs.

Box 22 - Conditions for RFAs relevant to the EPBC Act

A Regional Forest Agreement must consider assessments of the following matters as they are relevant to the region or regions (Regional Forest Agreements Act (Cwlth) 2002):

  • environmental values, including old growth, wilderness, endangered species, national estate values and World Heritage values
  • Indigenous heritage values
  • economic values of forested areas and forest industries
  • social values (including community needs)
  • principles of ecologically sustainable management
  • the agreement provides for the ecologically sustainable management and use of forested areas in the region or regions.
  • the agreement provides for a comprehensive, adequate and representative reserve system.

The EPBC Act recognises the RFA Act by ‘exempting’ the need for additional assessment and approval for forestry activities under the EPBC Act where the activity assessments is conducted in accordance with an RFA or where they are within an RFA region (except where forestry operations are in a World Heritage property or a Ramsar wetland). The EPBC Act does not specify the environmental benchmarks against which the RFA must be consistent for the exemption to apply.

The Review considers that the environmental considerations under the RFA Act are weaker than those imposed elsewhere for MNES and do not align with the assessment of significant impacts on MNES required by the EPBC Act. Submissions from stakeholders indicated concern around the effectiveness of the RFAs to protect threatened species that rely on the forest areas covered by RFAs. There is also great concern that the controls on logging within forests have not adequately adapted to pressures on the ecosystem such as climate change or bushfire impacts (WS 2020).

There is insufficient Commonwealth oversight of RFAs and the assurance and reporting mechanisms are weak. The RFA Act requires agreements to be subject to a 5-yearly review process but those reviews have been consistently late by an average of approximately 3 years. The first RFA to be signed was not reviewed until 13 years after the commencement date. All RFAs have been progressively extended as their initial 20-year term came to an end, rather than renegotiated from scratch. The extended RFAs included some incremental improvements, including mandating annual meetings between State and Commonwealth officials responsible for administering the RFA Act, to consider compliance issues and the overall performance of the RFAs. The outcomes of each meeting are released via a public communiqué.

The RFAs rely solely on the States to undertake surveillance, compliance and enforcement. During this Review, a Federal Court ruling found that State-owned logging agency VicForests breached the code of practice under the Central Highlands RFA and, therefore, was not exempt under the EPBC Act (Friends of Leadbeater’s Possum Inc v VicForests 2020). As of October 2020, the Commonwealth had not commenced compliance action for this potential breach of the EPBC Act.

The EPBC Act does not require reporting on the environmental outcomes of activities conducted under RFAs. The Review considers that Commonwealth oversight of environmental protections under RFAs is insufficient and immediate reform is needed. The National Environmental Standard for MNES should be immediately applied and RFAs should be subject to robust Commonwealth oversight.

6.1.4 - Advice on specific actions by Commonwealth agencies

The intention of Section 160 of the EPBC Act is to provide for streamlined assessments and approvals with other Commonwealth agencies on airspace, airports, foreign aid and other activities outlined in the EPBC regulations (including permits for sea dumping and hazardous waste permits under the Basel Convention). It is designed to provide a single Commonwealth assessment of specific actions undertaken by the Commonwealth, on Commonwealth land, or in Commonwealth marine areas.

Section 160 provides an alternative pathway for managing the environmental impacts of projects managed by other Commonwealth agencies (for example, the development of a new runway at an airport under the Airports Act 1996), based on advice from the Environment Minister. The Review has found that these arrangements are at risk of leading to poorer environmental outcomes and less streamlining than intended.

The requirements for advice under this section of the EPBC Act are extremely confusing and overly complex. There are a number of issues associated with implementation of this process, including:

  • Often the environmental impact assessment reports provided by other Commonwealth agencies are inadequate or inconsistent with the assessment information requirements of the Act. The Commonwealth Environment Minister is required to undertake a secondary assessment of the impacts to enable advice to be provided to the approving agency, which negates the perceived efficiency.
  • The approving Minister or agency is not required to accept or adhere to the advice provided, though they must inform the Commonwealth Environment Minister if the advice was not taken into account. There are also no ongoing reporting requirements to the Commonwealth Environment Minister.
  • The approving agency may be unable to support enforcement of environmental conditions under its legislation, and often lacks the expertise to undertake ongoing surveillance, compliance and enforcement.
  • The Commonwealth Environment Minister cannot enforce conditions and, importantly, residual significant impacts cannot be offset because there is no formal approval of the action under the EPBC Act.
  • The arrangements also do not remove the requirement to obtain a wildlife permit for catching, killing, injuring, taking or moving a protected species (Part 13 of the EPBC Act), which results in an additional permitting process and often unnecessary duplication of effort.
  • There is a lack of clarity about how the requirements apply to composite actions (actions that are not wholly within a Commonwealth area) – for example, sea dumping, which may also be referred under the standard provisions of Parts 7 to 9 of the EPBC Act.

The duplication and complexities associated with the arrangements mean that they result in little if any streamlining benefit to the Commonwealth, and they do not allow for adequate assurance that environmental outcomes are being met.

6.1.5 - Reform recommendations – accreditation of other Commonwealth processes

The environment does not follow jurisdictional or institutional boundaries. The same environmental standards should be applied across Australia to all accredited or streamlining arrangements irrespective of whether decisions are made by a State, Territory or other Commonwealth agency.

Of all streamlining processes provided for under the EPBC Act, the Review considers that the provisions for RFAs are the most unacceptable and require immediate reform. Specifically, RFAs should be required to demonstrate consistency with the National Environmental Standards and have greater Commonwealth oversight.

In the immediate term, and as a condition of accreditation (Chapter 7), States and Territories should ensure, and the Commonwealth expect, RFAs be consistent with National Environmental Standards.

Following this immediate step, the RFA provisions in the EPBC Act should be amended as part of the second tranche of comprehensive legislative reforms recommended by this Review. These amendments should replace the current exemption with the ability for the RFA process to be accredited where it can be demonstrated to be consistent with the National Environmental Standards. Accredited RFAs should be subject to the mandatory oversight of the Environment Assurance Commissioner.

Chapter 3 recommends restructuring and simplifying the EPBC Act to enable the accreditation model recommended by the Review to be effectively and efficiently applied. Relevant parts of the Act should be amended, then the accreditation model should be applied to arrangements with other Commonwealth agencies where they demonstrate consistency with the National Environmental Standards and subject themselves to transparent independent oversight (Chapter 7). Specifically (in addition to RFAs):

  • The accreditation model should be applied to NOPSEMA and AFMA using appropriate legislative amendments.
  • 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. Where an agency cannot meet accreditation requirements, actions should be subject to the standard assessment and approval conditions of the EPBC Act.

Consideration could also be given to a broader application of the National Environmental Standards to other Commonwealth decisions or management plans, beyond those already provided for under the current settings of the Act.

Recommendation

Recommendation 15

Increase the level of environmental protection afforded in Regional Forest Agreements (RFAs).

  1. The Commonwealth should immediately require, as a condition of any accredited arrangement, States to ensure that RFAs are consistent with the National Environmental Standards.
  2. In the second tranche of reform, the EPBC Act should be amended to replace the RFA 'exemption' with a requirement for accreditation against the National Environmental Standards, with the mandatory oversight of the Environment Assurance Commissioner.
Recommendation

Recommendation 16

In the second tranche of reform, the accreditation model should be applied to arrangements with other Commonwealth agencies, where they demonstrate consistency with the National Environmental Standards and subject themselves to transparent independent oversight. Specifically:

  1. The complex requirements for Ministerial advice on certain Commonwealth authorisations (sections 160-164) should be removed. These arrangements should be subject to the accreditation model, or the standard assessment and approval provisions of the EPBC Act.
  2. The accreditation model should be applied to the National Offshore Petroleum Safety and Environmental Management Authority and the Australian Fisheries Management Authority using appropriate legislative amendments.
  3. Where relevant, a broader application of the National Environmental Standards to other Commonwealth decisions and management plans, beyond those already provided for under the current settings of the Act, should be considered.

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