This Report provides 38 recommendations for reform. These recommendations should be considered in the context of the relevant chapter of this Report in which they appear. The reform pathway recommended to implement these recommendations is provided in Chapter 12. The recommendations in the report are set out in line with these tranches:
- Immediate reforms should be delivered to progress priority reforms
- The second tranche of reform should be completed within 12 months
- The third and final tranche should be completed within 2 years.
1 - National-level protection and conservation of the environment and iconic places
Matters of national environmental significance should be focused on Commonwealth responsibilities for the environment.
- 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.
- 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:
- explicitly consider the likely effectiveness of avoidance or mitigation measures on nationally protected matters under specified climate change scenarios
- transparently disclose the full emissions of the development.
The EPBC Act should be immediately amended to enable the development and implementation of legally enforceable National Environmental Standards.
- The Act should set out the process for making, implementing and reviewing National Environmental Standards. The Act should include specific provisions about their governance, consultation, monitoring and review.
- The Act should require that activities and decisions made by the Minister under the Act, or those under an accredited arrangement, be consistent with National Environmental Standards.
- The Act should include a specific power for the Minister to exercise discretion to make a decision that is inconsistent with the National Environmental Standards. The use of this power should be a rare exception, demonstrably justified in the public interest and accompanied by a published statement of reasons which includes the environmental implications of the decision.
- National Environmental Standards should be first made in a way that takes account of the current legal settings of the Act. The National Environmental Standards set out in detail in Appendix B should be adopted in full. The remainder of the suite of Standards should be developed without delay to enable the full suite of 9 Standards to be implemented immediately. Standards should be refined within 12 months.
In the second tranche of reforms, the EPBC Act should be amended to deliver more effective environmental protection and management, accelerate achievement of the environmental outcomes and improve the efficiency of National Environmental Standards. Parts 3 to 10 of the Act should be completely overhauled to enable:
- National Environmental Standards to evolve and be set in a way that delivers ecologically sustainable development, through the collective contributions of the actions, decisions, plans and policies of the Commonwealth and accredited parties.
- A proactive focus on managing matters of national environmental significance. The Act should require that matters of national environmental significance be protected, conserved, recovered and enhanced.
- All decisions to be targeted towards achieving the environmental outcomes set out in National Environmental Standards.
- National Environmental Standards to be more efficiently applied to decision-making, including accredited arrangements.
2 - Indigenous culture and heritage
To harness the value and recognise the importance of Indigenous knowledge, the EPBC Act should require decision-makers to respectfully consider Indigenous views and knowledge. Immediate reform is required to:
- amend the Act to replace the Indigenous Advisory Committee with the Indigenous Engagement and Participation Committee. The mandate of the Committee will be to refine, implement and monitor the National Environmental Standard for Indigenous engagement and participation in decision-making
- adopt the recommended National Environmental Standard for Indigenous engagement and participation in decision-making
- amend the Act to require the Environment Minister to transparently demonstrate how Indigenous knowledge and science is considered in decision-making.
The Department of Agriculture, Water and the Environment should take immediate steps to invest in developing its cultural capability to build strong relationships with Indigenous Australians and enable respectful inclusion of their valuable knowledge.
The Commonwealth Government should immediately initiate a comprehensive review of national-level cultural heritage protections, drawing on best practice frameworks for cultural heritage laws.
The Commonwealth Government, through the Director of National Parks, should immediately commit to working with Traditional Owners to co-design reforms for joint management, including policy, governance and transition arrangements. The Commonwealth Government should ensure that this process is supported by amending the EPBC Act when needed, and providing adequate resources.
3 - Reducing legislative complexity
Legislative reforms should be redrafted in line with modern, best practice drafting guidance. Immediate amendments should be made to:
- fix inconsistencies, gaps and conflicts in the EPBC Act to make it easier to understand and work with
- implement enforceable National Environmental Standards; improve the durability of bilateral agreements; independent oversight and audit; and compliance and enforcement.
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.
- The Act should be restructured to clarify and simplify the functions of the Act and how they interact.
- 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.
- Redrafting should include consideration of dividing the Act, such as creating separate pieces of legislation for its key functional areas.
4 - Trust in the EPBC Act
The Commonwealth Government should increase the transparency of the operation of the EPBC Act by:
- immediately improving the availability of information as required by the National Environmental Standards
- immediately improving the accessibility of the Act through plain English guidelines and targeted communication
- immediately implementing arrangements to publish reasons for Commonwealth decisions under Parts 9 and 10 of the Act
- 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:
- by set time frames for applications
- to the papers at the time of the original decision
- to matters that will have a material impact on environmental and heritage outcomes
- to where senior counsel advice is that there is a reasonable likelihood of the matter proceeding.
5 - Interactions with States and Territories
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:
- underpinned by legally enforceable National Environmental Standards
- subject to rigorous, transparent oversight by the Commonwealth, including comprehensive audit by the independent Environment Assurance Commissioner.
6 - Commonwealth decisions and interactions with other Commonwealth laws
Increase the level of environmental protection afforded in Regional Forest Agreements (RFAs).
- The Commonwealth should immediately require, as a condition of any accredited arrangement, States to ensure that RFAs are consistent with the National Environmental Standards.
- In the second tranche of reform, the EPBC Act should be amended to replace the RFA 'exemption' with a requirement for accreditation against the National Environmental Standards, with the mandatory oversight of the Environment Assurance Commissioner.
In the second tranche of reform, the accreditation model should be applied to arrangements with other Commonwealth agencies, where they demonstrate consistency with the National Environmental Standards and subject themselves to transparent independent oversight. Specifically:
- The complex requirements for Ministerial advice on certain Commonwealth authorisations (sections 160-164) should be removed. These arrangements should be subject to the accreditation model, or the standard assessment and approval provisions of the EPBC Act.
- The accreditation model should be applied to the National Offshore Petroleum Safety and Environmental Management Authority and the Australian Fisheries Management Authority using appropriate legislative amendments.
- Where relevant, a broader application of the National Environmental Standards to other Commonwealth decisions and management plans, beyond those already provided for under the current settings of the Act, should be considered.
In the second tranche of reform, a National Environmental Standard for actions impacting on Commonwealth land and Commonwealth actions should be developed to provide a national benchmark for effective environmental protections. The Commonwealth should promote the broader application of this Standard by encouraging other jurisdictions to adopt it.
In the second tranche of reform, Commonwealth assessment pathways should be rationalised to enable a risk-based approach to assessments that is proportionate to the level of impact on matters protected by the EPBC Act.
In the second tranche of reform, the implementation of Commonwealth assessments should be supported by providing clear guidance, modern systems and appropriate cost recovery.
Amend the EPBC Act to ensure wildlife permitting requirements align with Australia’s international obligations related to:
- species listed under Appendix I and II of the Convention on the Conservation of Migratory Species (Bonn Convention)
- import permitting requirements for Appendix II listed species under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)
- requirements to ensure the humane transport of live fish and live invertebrates.
Amend Part 13A Division 2 and 5 of the EPBC Act, EPBC Regulations and associated definitions to streamline and reduce regulatory burden on wildlife trade permitting processes and to enable proportionate compliance and enforcement responses.
Reduce instances under the EPBC Act and EPBC Regulations where wildlife trade permitting may be subject to abuse by applicants.
- Tighten the definitions for the non-commercial categories of exhibition and travelling exhibition, including what can be classified as a zoo.
- Apply a fit-and-proper-person test as broadly as possible to wildlife permitting approvals under the Act.
7 - Accreditation, audit and independent oversight
Immediately establish, by statutory appointment, the position of Environment Assurance Commissioner with responsibility to:
- oversee audit of decision-making by the Commonwealth under the EPBC Act, including the Office of Compliance and Enforcement
- oversee audit of an accredited party under an accredited arrangement
- conduct performance audits, like those of the Auditor General and set out in the Auditor-General Act 1997
- provide annual reporting on performance of Commonwealth and accredited parties against National Environmental Standards. This report should be provided to the Environment Minister, to be tabled in the Australian Parliament in a prescribed timeframe.
In the second tranche of reform, the EPBC Act should be amended to remove outdated bilateral agreement processes and replaced with robust and efficient accreditation processes, based on National Environmental Standards, that include:
- self-assessment of arrangements by the party proposing to be accredited
- independent advice of the Environment Assurance Commissioner
- the opportunity for the Australian Parliament to disallow a proposed accreditation
- accreditation agreement by the Commonwealth Environment Minister
- escalation processes to resolve disputes between the Commonwealth Environment Minister and the accredited party
- the Commonwealth Environment Minister’s unfettered right to make a decision
- scheduled formal review.
8 - Planning and restoration
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:
- 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
- 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
- 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
- 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
- the Commonwealth to accredit plans made by other parties, where these plans are consistent with National Environmental Standards and other relevant plans
- 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:
- strategic national plans for key, new and emerging threats of national significance
- 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.
- 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.
- 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:
- co-investment with private capital to improve the sustainability of private land management
- establishing a central trust or point of coordination for private and public investment in restoration to be delivered (including offsets)
- opportunities to leverage existing markets (including the carbon market) to help deliver restoration
- changes to the tax code that can deliver environmental restoration.
9 - Compliance and enforcement
Immediate reforms are required to ensure that compliance and enforcement functions by the Commonwealth, or an accredited party are strong and consistent.
- The recommended National Environmental Standard for compliance and enforcement should be immediately adopted.
- Commonwealth compliance and enforcement functions and those of any accredited party should be required to demonstrate consistency with this Standard.
- 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:
- 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.
- 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.
- An increase in the transparency and accountability of activities, including clear public registers of activities, offsets and staff conflicts of interest.
10 - Data, information and systems
The Commonwealth should initiate immediate improvements to the environmental information system by:
- adopting a National Environmental Standard for data and information to set clear requirements for providing best available evidence, including requiring anyone with environmental information of material benefit to provide it to the environmental information supply chain
- appointing an interim supply chain Custodian to oversee the improvements to information and data
- designating a set of national environment information assets to ensure essential information streams are available and maintained to underpin the implementation and continual improvement of the National Environmental Standards for MNES
- expanding the application of existing work with jurisdictions on the digital transformation of environmental assessments and ensuring it is aligned with implementation of the national environmental information supply chain
- commencing the overhaul of the Department’s information management systems to provide a modern interface for interactions on the EPBC Act and support better use and efficient transfer of information and knowledge.
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:
- have a clearly assigned Custodian responsible for providing long-term stewardship and coordination
- have a legal foundation with provisions in the Act that details responsibilities, governance, National Environmental Information Assets and reporting to ensure accountability
- be underpinned by a long-term strategy and roadmap prepared and maintained by the Custodian, with the first strategy due within 12 months
- be supported by a coordinated effort to improve national ecosystem and predictive modelling capabilities
- have adequate up-front and ongoing funding.
11 - Environmental monitoring, evaluation and reporting
To monitor and evaluate the effectiveness of the EPBC Act the Commonwealth should immediately:
- 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.
- 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:
- deliver a comprehensive and coherent monitoring and evaluation framework that includes appropriate mechanisms for embedding the framework including governance
- require a long-term strategy to identify and achieve systematic monitoring required to understand the trend and condition of MNES
- 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:
- 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
- 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
- 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:
- 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
- a nationally agreed system of environmental-economic accounts to support streamlined environmental reporting. These accounts should be continuously improved over time.
12 - The reform pathway
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:
- greater consistency and harmonisation of environmental laws
- finalising a single national list of protected matters to facilitate streamlining under the common assessment method
- a shared future program of regional planning and strategic national plans
- leveraging Commonwealth reforms in data and information
- consolidating monitoring and reporting on environmental outcomes across Australia through the State of the Environment report and other reporting.