Australia’s natural environment and iconic places are in an overall state of decline and are under increasing threat. The environment is not sufficiently resilient to withstand current, emerging or future threats, including climate change. The environmental trajectory is currently unsustainable.
The EPBC Act does not clearly outline its intended outcomes, and the environment has suffered from 2 decades of failing to continuously improve the law and its implementation. Business has also suffered. The Act is complex and cumbersome and it results in duplication with State and Territory development approval processes. This adds costs to business, often with little benefit to the environment.
The EPBC Act and its operation requires fundamental reform to enable the Commonwealth to:
- set clear outcomes for the environment and provide transparency and strong oversight to build trust and confidence that decisions deliver these outcomes and adhere to the law
- actively plan for environmental outcomes and restore the environment to accommodate Australia’s future development needs in a sustainable way
- measure effectiveness to ensure that the Act delivers the right level of protection to make a difference for the environment and to support adjustments where changes are needed
- respect and harness the knowledge of Indigenous Australians to better inform how the environment is managed.
New, legally enforceable National Environmental Standards are the centrepiece of the recommended reforms.
- The Standards should focus on outcomes for matters of national environmental significance and on the fundamental processes for sound decision-making. Standards should prescribe that all activities contribute to national environmental outcomes.
- Decisions should be made in a way that is consistent with the Standards. The rare exception being where the Commonwealth overtly exercises discretion, demonstrably and transparently justified in the public interest.
- The full suite of National Environmental Standards recommended should be implemented immediately. The Standards developed in detail by the Review should be accepted in full, and other necessary Standards should be developed and implemented without delay.
- All the Standards are necessary to improve decision-making by the Commonwealth and to provide confidence that any agreements to accredit States and Territories will contribute to national environmental outcomes not just streamline development approvals.
Strong oversight of the implementation of National Environmental Standards is needed to provide the community, and the Australian Parliament, with the confidence that decisions are being made in a way that is consistent with the law.
- The new, independent, statutory position of Environment Assurance Commissioner (EAC) should be created. The EAC should be responsible for reporting on the performance of the Commonwealth, States and Territories, and other accredited parties in implementing the Standards.
- EAC reports should provide recommendations for action to the Environment Minister where there are issues of concern. The Minister should be required to publicly respond.
Separately, the National Environmental Standard for compliance and enforcement developed by the Review should be immediately implemented to ensure a robust and consistent approach to compliance and enforcement of decisions under the EPBC Act or accredited arrangements.
- The Commonwealth should immediately establish a new independent Office of Compliance and Enforcement within the Department of Agriculture, Water and the Environment. It should have modern regulatory powers and tools to enable it to deliver compliance and enforcement of Commonwealth approvals, consistent with this Standard.
- To be accredited, States and Territories and other parties should also ensure compliance and enforcement consistent with this Standard.
Reform is needed to ensure that Indigenous Australians are listened to and decision-makers respectfully harness the enormous value of Indigenous knowledge of managing Country.
- The National Environmental Standard for Indigenous engagement and participation in decision-making developed by this Review should be immediately adopted to deliver initial improvements.
- The current laws that protect Indigenous cultural heritage are well behind community expectations. They do not deliver the level of protections that Indigenous Australians deserve and the community expects. These laws should be immediately reviewed, and reform should be delivered in line with best practice requirements for Indigenous heritage legislation.
Reversing the unsustainable environmental trajectory will require good planning to manage the environment, as well as broadscale environmental restoration.
- Ultimately, governments should shift their focus from individual project approvals to a focus on clear outcomes, integrated into national and regional plans for protecting and restoring the environment and plans for sustainable development. The National Environmental Standards set clear outcomes for matters of national environmental significance. The EPBC Act needs to enable more effective planning and governments must commit to and resource the development and implementation of plans.
- All relevant levers of government should be focused on delivering outcomes for MNES that are aligned with the priorities of plans. This includes program funding and regulatory levers such as how and where the impacts of development can be offset in an ecologically feasible way.
- The size and long-term nature of investment required in restoration cannot be delivered solely by governments. New mechanisms are needed to leverage private-sector investment and to align this with national outcomes for the environment. It will be important to get the institutional settings for these investments right, and detailed work is required to design them well.
Decision-makers, proponents of development and the community do not have access to the best available data, information and science. There is insufficient capability to understand the likely impacts of the interventions made, particularly in a changing climate. Unacceptable information gaps exist, and many matters protected under the EPBC Act are not monitored at all. Poor data and information are costly for all. A quantum shift in the quality of data and information will support the reforms recommended by this Review.
- A national supply chain of information will deliver the right information at the right time to those who need it. Better data and information are needed to set clear outcomes, effectively plan and invest in a way that delivers them, and to efficiently regulate development.
- A long-term strategy is needed, so that each investment contributes to building and improving the system. Clear requirements for the provision and use of data and information should be immediately mandated through the National Environmental Standard for data and information.
The focus of all recommendations made by the Review is on ensuring the intended outcomes of the EPBC Act are clear and they are achieved. The operation of the Act must support continuous improvement.
- A coherent framework for monitoring, evaluating and reporting on the effectiveness of the EPBC Act is required to understand if we are on track to achieve outcomes and, if not, where a change of course is needed.
- A new overarching advisory committee – the Ecologically Sustainable Development Committee – should be assigned responsibility for developing this framework and reporting on outcomes for matters of national environmental significance.
The 38 recommendations in this Review amount to substantial and necessary reforms to reverse the current state of environmental decline. They will enable Australia to meet future development needs in a sustainable way and will support long-term economic growth, environmental improvement and the effective protection of Australia’s iconic places and heritage for the benefit of current and future generations.