7.1 - Past attempts to accredit the approval processes of States and Territories have been unsuccessful
Reducing duplication in development assessment and approval is a sound ambition, and one that governments should continue to pursue. The Review recommends that the EPBC Act should enable the Commonwealth Government to recognise and accredit the regulatory processes and environmental management activities of other parties, including States and Territories and other Commonwealth agencies. This would streamline decision-making by removing the obligation for a project to be assessed under multiple environmental assessment laws. Accreditation also provides a way to better integrate Commonwealth requirements into the broader environmental management activities of the accredited party (Chapter 5).
The EPBC Act has always included provision to accredit the arrangements of a State or Territory. However, the community is rightfully sceptical of the ability for these accredited arrangements to achieve the objectives of the EPBC Act and deliver ecologically sustainable development (ESD).
Amendments to the accreditation provisions in the EPBC Act failed to pass the parliament in 2015. There was considerable community and stakeholder concern that environmental outcomes were not clearly defined and that the States and Territories would not be able to uphold the national interest in protecting the environment. A lack of clear environmental (as opposed to process) standards fuelled political opposition at the time. A Bill to amend the Act, tabled in the Australian Parliament in August 2020 has prompted similar concerns from stakeholders.
Past attempts have failed because the community does not trust the States and Territories to properly manage their conflicts. Furthermore, in the absence of clear and prescribed outcomes, there are concerns about whether States and Territories are able to make decisions that reflect the national interest.
Stakeholders are also concerned that the Commonwealth does not deliver effective oversight of how system-level approaches have been implemented and how they are delivering environmental outcomes. Regional Forest Agreements (Chapter 6) are an example of this. Strategic assessments are another. In June 2020 the Victorian Auditor-General found that the Victorian Government had not met its commitments under the Melbourne Strategic Assessment to improve conservation outcomes by establishing the Western Grassland Reserve and Grassy Eucalypt Woodlands Reserve by 2020 (VAGO 2020). Due to the complexities of enforcing compliance with strategic assessments, the Commonwealth has to date not taken any formal action to ensure that the environmental outcomes set out in the strategic assessment are being achieved (Chapter 3).
Audits of the Commonwealth's performance are undertaken by the Australian National Audit Office (ANAO), but these are ad hoc. Responses are made to the findings of these audits, but there is a lack of accountability in the implementation of actions to address the ANAO’s recommendations. The most recent ANAO report indicated that the Department of Agriculture, Water and the Environment had made limited progress on addressing the recommendations arising from previous audits (ANAO 2020). There is no complementary or recurring process that audits the effectiveness of the implementation of accredited arrangements, where these are in place. The ANAO was highly critical of the Department’s lack of outcome-level performance measurement and reporting, and its inability to determine how its decisions related to outcomes for matters of national environmental significance (MNES).
The key reforms recommended by this Review are designed to address the shortcomings identified in past processes. National Environmental Standards provide a foundation for more effective and efficient environmental decision-making and enable the environment to be managed at the right scale.
But National Environmental Standards themselves are not enough. They need to be supported by strong and independent oversight of the performance of all parties, including accredited arrangements to meet the Commonwealth’s outcomes as prescribed in the Standards. The Australian Parliament and the public need confidence that accredited decision-makers are adhering to the Commonwealth’s regulations and Standards by making correct decisions and properly implementing commitments.