Foreword

I am pleased to present the Final Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

Australia’s natural environment and iconic places are in an overall state of decline and are under increasing threat. They are not sufficiently resilient to withstand current, emerging or future threats, including climate change.

The EPBC Act is out dated and requires fundamental reform. It does not enable the Commonwealth to effectively fulfil its environmental management responsibilities to protect nationally important matters. The Act, and the way it is implemented, results in piecemeal decisions, which rarely work in concert with the environmental management responsibilities of the States and Territories. The Act is a barrier to holistic environmental management which, given the nature of Australia’s federation, is essential for success.

The resounding message that I heard throughout the Review is that Australians do not trust that the EPBC Act is delivering for the environment, for business or for the community. The reforms I recommend are designed to enable the Commonwealth to step up its efforts to deliver nationally important outcomes for the environment by:

• setting clear outcomes through new, legally enforceable National Environmental Standards that set the boundaries for decision-making to deliver the protections needed
• actively restoring the environment and facilitating the scale of investment needed to deliver better outcomes
• taking an adaptive approach, through better planning, measuring the effectiveness of implementation and adjusting where needed to achieve outcomes
• harnessing the knowledge of Indigenous Australians to better inform how the environment is managed.

National Environmental Standards are the centrepiece of my recommended reforms. The activities of government should be consistent with the Standards, noting that an elected government should always retain the ability to exercise discretion in individual cases. Such discretion should be a rare exception, demonstrably justified in the public interest, with reasons and environmental implications transparently communicated.

To be effective, National Environment Standards must be supported by a broader framework of reform. This includes independent oversight and audit to build and maintain confidence that the EPBC Act, and the National Environmental Standards are working as intended. Separately, a mandated, rigorous compliance and enforcement regime is needed to ensure that decisions made are consistently and fairly enforced in accordance with the law.

The operation of the EPBC Act has failed to harness the extraordinary value of Indigenous knowledge systems that have supported healthy Country for over 60,000 years in Australia. A significant shift in attitude is required, so that we stop, listen and learn from Indigenous Australians and enable them to effectively participate in decision-making. National-level protection of the cultural heritage of Indigenous Australians is a long way out of step with community expectations. As a nation, we must do better.

Outcomes-focused law requires the capacity to effectively monitor and report on these outcomes, and to understand the difference made by management interventions. Reform must be underpinned by the best available scientific, cultural, economic and social information to enable the best possible decisions to be made, for outcomes to be properly measured, and the effectiveness of environmental management efforts to be better understood. Well-planned and staged investment to deliver a quantum change in the quality of data and information will deliver returns – for government, for the community, for business and, most importantly, for the environment.

The EPBC Act requires fundamental reform, and a sensible and staged pathway of change is needed to achieve this. Changes should be made immediately to deliver the best possible outcomes from dated law. This should be followed by a concerted effort to fundamentally re-write and modernise the Act and its implementation.

A sustained commitment to change is required from all stakeholders. Legislative reform should not be a once-in-a-decade opportunity, but rather part of a sensible process of continuous improvement. Governments should avoid the temptation to cherry pick from a highly interconnected suite of recommendations. Business, industry and non-government stakeholders, who have actively and constructively engaged in this Review, must continue their pursuit of common ground.

The tendency to focus narrowly on highly prescriptive processes and individual projects must become a thing of the past. The EPBC Act should not be about stopping all development, nor should it be about permitting all development. The Act should deliver better outcomes for the environment, while allowing a sensible and sustainable approach to meeting Australia’s future development needs. The reforms recommended support a fundamental shift, from a transaction-based approach to one centered on effective and adaptive planning.

Given the current state of Australia’s environment, broad restoration is required to address past loss, build resilience and reverse the current trajectory of environmental decline. Restoration is necessary to enable Australia to accommodate future development in a sustainable way. The scale of the task ahead is significant and is too large for governments to try to solve alone. To support greater collaboration between governments and the private sector, new mechanisms are needed to leverage the scale of investment that will be needed for decades to come.

To shy away from the fundamental reforms recommended by this Review is to accept the continued decline of our iconic places and the extinction of our most threatened plants, animals and ecosystems. This is unacceptable. A firm commitment to change from all stakeholders is needed to enable  future generations to enjoy and benefit from Australia’s unique environment and heritage.

I would like to thank the 30,142 people and organisations that contributed written submissions to the Review and the more than 100 stakeholders who invested significant time to share their views, experiences, insights and expertise with me.

I would also like to thank the Review Expert Panel – Mr Bruce Martin, Dr Erica Smyth AC, Dr Wendy Craik AM and, until his appointment as a Royal Commissioner, Professor Andrew Macintosh. In conducting this Review, I have valued their expert input and advice. I take full responsibility for the conclusions I have drawn and the recommendations I have made.

In closing, I express my sincere thanks to all members of the incredibly dedicated and assiduous Review Secretariat. The commitment and expertise of the team consistently surpassed my considerable demands.

Professor Graeme Samuel AC