Recommendations

Matters of national environmental significance should be focused on Commonwealth responsibilities for the environment.

1. The water MNES (section 24D/24E) should be amended to apply only to cross-border water resources. Any action that is likely to have a significant impact on cross-border water resources should be subject to the trigger. Restrictions should be removed where they prevent other parties from being accredited to undertake approvals of proposals assessed under the water trigger. This amendment should occur in the second tranche of reforms.
2. The nuclear MNES (section 21/22A) should be retained. In the first tranche of reforms, the Australian Government should immediately adopt the recommended National Environmental Standard for the protection of the environment from nuclear actions. In the second tranche of reform, the EPBC Act and the regulatory arrangements of the Australian Radiation Protection and Nuclear Safety Agency should be aligned, to support the implementation of best-practice international approaches based on risk of harm to the environment, including the community.

National Environmental Standards recommended by this Review should require development proposals to:

1. explicitly consider the likely effectiveness of avoidance or mitigation measures on nationally protected matters under specified climate change scenarios
2. transparently disclose the full emissions of the development.

Over a 2-year transition period, a comprehensive reworking of the EPBC Act should be undertaken to fully implement the reforms recommended by this Review and to deliver an effective legislative framework.

1. The Act should be restructured to clarify and simplify the functions of the Act and how they interact.
2. Redrafting and restructuring of the Act should explicitly consider its interaction with other Commonwealth legislation to remove inconsistency and to improve operational efficiency. To deliver the full results, this may require consequential changes in other legislation.
3. Redrafting should include consideration of dividing the Act, such as creating separate pieces of legislation for its key functional areas.
    

The Commonwealth Government should increase the transparency of the operation of the EPBC Act by:

1. immediately improving the availability of information as required by the National Environmental Standards
2. immediately improving the accessibility of the Act through plain English guidelines and targeted communication
3. immediately implementing arrangements to publish reasons for Commonwealth decisions under Parts 9 and 10 of the Act
4. in the second tranche of reform, amend the Act to require publication of all information relevant to, and the reasons for, decisions made under the Act. Processes and systems should be implemented to support greater transparency. 

The EPBC Act should be immediately amended to recast the statutory committees to create the Ecologically Sustainable Development Committee, the Indigenous Engagement and Participation Committee, the Biodiversity Conservation Science Committee, the Australian Heritage Council, and the Water Resources Committee. The Ecologically Sustainable Development Committee should be an overarching committee with responsibility for providing advice on National Environmental Standards, planning and implementation, and coordination across all the committees.

The EPBC Act should retain the current extended standing provisions. In the second tranche of reform, the Act should be amended to provide for limited merits review for development approval decisions but be restricted:

1. by set time frames for applications
2. to the papers at the time of the original decision
3. to matters that will have a material impact on environmental and heritage outcomes
4. to where senior counsel advice is that there is a reasonable likelihood of the matter proceeding.

Immediately amend the EPBC Act to provide confidence to accredit State and Territory arrangements to deliver single-touch environmental approvals in the short-term. Accreditation should be:

1. underpinned by legally enforceable National Environmental Standards
2. subject to rigorous, transparent oversight by the Commonwealth, including comprehensive audit by the independent Environment Assurance Commissioner.
    

In the second tranche of reform, the EPBC Act should be amended to support more effective planning that accounts for cumulative impacts and past and future key threats and build environmental resilience in a changing climate. Amendments should enable:

1. strategic national plans to be developed, consistent with the National Environmental Standards, to guide a national response and effectively target action and investment to address nationally pervasive issues such as high-level and cross-border threats
2. regional recovery plans to be developed, consistent with the National Environmental Standards, to support coordinated threat management and investment to reduce cumulative impacts on threatened species and ecological communities
3. ecologically sustainable development plans to be developed and accredited, consistent with the National Environmental Standards. These plans should address environmental, economic, cultural and social values and include priority areas for investment in the environment
4. strategic assessments to be approved, consistent with the National Environmental Standards and regional recovery plans and provide for a single approval for a broad range of actions
5. the Commonwealth to accredit plans made by other parties, where these plans are consistent with National Environmental Standards and other relevant plans
6. plans to be made consistent with key principles for quality regional planning.

In the second tranche of reform, the Commonwealth should establish a dedicated program to develop and implement strategic national plans and regional plans with a focus on key Commonwealth priorities, including:

1. strategic national plans for key, new and emerging threats of national significance
2. regional plans in biodiversity hotspots, areas foreshadowed as national priorities for economic development and areas where matters of national environmental significance are under greatest threat.

The Commonwealth should reform the application of environmental offsets under the EPBC Act to address decline and achieve restoration.

1. The EPBC Act environmental offsets policy should be immediately amended (or a National Environmental Standard for restoration that includes offsets should be made) in accordance with the recommendations in Box 28.
2. As part of the second tranche of reform, the Act should be amended or standalone legislation passed to legislate the revised offsetting arrangements, providing the certainty required to encourage investment in restoration.

To foster private sector participation in restoration, the Commonwealth should formally investigate and consider:

1. co-investment with private capital to improve the sustainability of private land management
2. establishing a central trust or point of coordination for private and public investment in restoration to be delivered (including offsets)
3. opportunities to leverage existing markets (including the carbon market) to help deliver restoration
4. changes to the tax code that can deliver environmental restoration.

Immediate reforms are required to ensure that compliance and enforcement functions by the Commonwealth, or an accredited party are strong and consistent.

1. The recommended National Environmental Standard for compliance and enforcement should be immediately adopted.
2. Commonwealth compliance and enforcement functions and those of any accredited party should be required to demonstrate consistency with this Standard.
3. The Commonwealth should retain the ability to intervene in project-level compliance and enforcement, where egregious breaches are not being effectively dealt with by the accredited party.

The Commonwealth should immediately increase the independence of and enhance Commonwealth compliance and enforcement. This requires:

1. Simplified law and a full suite of modern regulatory surveillance, compliance and enforcement powers and tools, including targeted stakeholder resources to build understanding and voluntary compliance.
2. Assigning independent powers for Commonwealth compliance and enforcement to the Secretary of the Department of Agriculture, Water and the Environment, with compliance functions consolidated into an Office of Compliance and Enforcement within the Department. This office should be provided with a full suite of modern regulatory powers and tools, and adequate resourcing to enable the Commonwealth to meet the National Environmental Standard for compliance and enforcement.
3. An increase in the transparency and accountability of activities, including clear public registers of activities, offsets and staff conflicts of interest.

The Commonwealth should build, maintain and improve an efficient environmental information supply chain to deliver the best available evidence to improve the effectiveness of the EPBC Act. Aligned with the second tranche of reform, the supply chain should:

1. have a clearly assigned Custodian responsible for providing long-term stewardship and coordination
2. have a legal foundation with provisions in the Act that details responsibilities, governance, National Environmental Information Assets and reporting to ensure accountability
3. be underpinned by a long-term strategy and roadmap prepared and maintained by the Custodian, with the first strategy due within 12 months
4. be supported by a coordinated effort to improve national ecosystem and predictive modelling capabilities
5. have adequate up-front and ongoing funding.

To monitor and evaluate the effectiveness of the EPBC Act the Commonwealth should immediately:

1. establish a National Environmental Standard for environmental monitoring and evaluation of outcomes to ensure that all parties understand their obligations to monitor, evaluate, report on and review their activities.
2. assign the Ecologically Sustainable Development Committee responsibility for the oversight and management of monitoring, evaluating and reporting on the outcomes of the Act. Immediate priorities of the Ecologically Sustainable Development Committee should be developing a monitoring and evaluation framework and preparing monitoring and evaluation plans for the National Environmental Standards for MNES.

In the second tranche of reforms, the EPBC Act should be amended to require formal monitoring, evaluation and reporting on the effectiveness of the Act in achieving its outcomes. Specifically, amendments should include requirements to:

1. deliver a comprehensive and coherent monitoring and evaluation framework that includes appropriate mechanisms for embedding the framework including governance
2. require a long-term strategy to identify and achieve systematic monitoring required to understand the trend and condition of MNES
3. deliver an annual statement by the Ecologically Sustainable Development Committee to the Environment Minister and the Environment Assurance Commissioner. The statement should evaluate environmental performance under the Act, how the outcomes for MNES are tracking, and make recommendations for adjustments as required

The Commonwealth should immediately agree to deliver a published response to the 2021 State of the Environment report. The response should provide a strategic national plan for the environment, including annual reporting on the implementation of the plan.

In the second tranche of reform, the EPBC Act should be amended to provide a sound legislative basis for the Commonwealth's national leadership and reporting role including amendments to:

1. set out the purpose of the national State of the Environment report to provide the national story on environmental trends and condition, and require that it be independent, based on a consistent, long-term set of environmental indicators, and align the timing of the report to enable it be used as a contemporary input into the decadal review of the Act
2. require a government response to future State of the Environment reports that should be tabled in the Australian Parliament in the form of a strategic national plan for the environment and annual reports on the implementation of the plan
3. require a set of national environmental-economic accounts to be tabled annually in the Australian Parliament alongside traditional budget reporting.

As part of the third tranche of reform, the Commonwealth, in its national leadership role, should build on its own reforms by pursuing harmonisation with States and Territories to streamline national and international reporting by delivering:

1. a national environmental monitoring and evaluation framework, developed in collaboration with jurisdictions, to better understand the performance of the different parts of the national environmental management system
2. a nationally agreed system of environmental-economic accounts to support streamlined environmental reporting. These accounts should be continuously improved over time.

In the third tranche of reform, the Commonwealth should instigate a refresh of intergovernmental cooperation and coordination to facilitate collaboration with the States and Territories, including:

1. greater consistency and harmonisation of environmental laws
2. finalising a single national list of protected matters to facilitate streamlining under the common assessment method
3. a shared future program of regional planning and strategic national plans
4. leveraging Commonwealth reforms in data and information
5. consolidating monitoring and reporting on environmental outcomes across Australia through the State of the Environment report and other reporting.