Chapter 9 - Compliance and enforcement

Surveillance, compliance and enforcement under the EPBC Act is ineffective. There has been limited enforcement of the Act over the 20 years it has been in effect, and the transparency of what has been done is also limited.

There is broad consensus from the regulated community and the experts that advise them that complying with the EPBC Act is not easy. Likewise for the Department, the complexity of the Act impedes compliance and enforcement.

The compliance and enforcement powers in the EPBC Act are outdated. Powers are restrictive and can only be applied in a piecemeal way across different parts of the Act due to the way it is constructed.

Compliance and enforcement activities are significantly under-resourced. The culture of surveillance, compliance and enforcement is not forceful. This erodes public trust in the ability of the law to deliver environmental outcomes.

Ensuring a clear expectation for adequate compliance and enforcement by accredited parties is a core element of the Review’s recommended accreditation model.

The key reforms recommended by the Review are:

• A new National Environmental Standard for compliance and enforcement should be implemented to ensure a robust and consistent approach to compliance and enforcement of the EPBC Act or accredited arrangements. Commonwealth compliance and enforcement and accredited parties would have to demonstrate they meet the Standard.
• While accredited parties would be responsible for enforcing their decisions, the Commonwealth should retain the ability to intervene in project-level compliance and enforcement, where parties are not effectively dealing with egregious breaches.
• The Commonwealth should immediately assign independent powers for Commonwealth compliance and enforcement to the Secretary of the Department of Agriculture, Water and the Environment. The Department’s compliance functions should be consolidated into an Office of Compliance and Enforcement.
• The Office of Compliance and Enforcement should be provided with a full suite of modern regulatory powers and tools, and adequate resourcing. This will enable the Commonwealth to deliver compliance and enforcement consist with the National Environmental Standard and provide confidence that the law is being enforced.