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.