Interim Report

Professor Graeme Samuel AC introduces the Interim Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

The Minister for the Environment appointed Professor Graeme Samuel AC to conduct the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 in October 2019. This Interim Report sets out Professor Samuel’s preliminary views on the fundamental inadequacies of the EPBC Act and proposes key reform directions to address them. Interested parties can provide feedback on the Interim Report via a survey.

A short summary of the preliminary views and proposed key reform directions set out in the Interim Report.

A summary of the Interim Report that sets out the key problems identified by the Reviewer and the key reform directions proposed to address these.

The environment and our iconic places are in decline and under increasing threat. The EPBC Act is ineffective. It is not fit for current or future environmental challenges, such as climate change. New legally enforceable National Environmental Standards should be the centrepiece of fundamental reform. Ecologically sustainable development (ESD) should be the overall outcome the Act seeks to achieve with the current matters of national environmental significance (MNES) the focus. Planning at the national and regional (landscape) scale is needed.

The EPBC Act has failed to fulfil its objectives as they relate to Indigenous Australians The suite of national-level laws that protect Indigenous cultural heritage in Australia needs comprehensive review. Much more needs to be done to respectfully incorporate valuable Traditional Knowledge of Country in how the environment is managed. Reforms should be co-designed with Indigenous Australians.

The EPBC Act is complex. Complex legislation makes it difficult, time-consuming and expensive for people to understand their legal rights and obligations. In the short-term, legislative amendments to the EPBC Act are required. In the longer-term, comprehensive redrafting of the Act (or a new set of related Acts) is required.

The EPBC Act is duplicative, inefficient and costly for the environment, business and the community. The interaction between Commonwealth and state and territory laws and regulations leads to duplication, despite efforts to streamline. The proposed legally enforceable National Environmental Standards provide a clear pathway for greater devolution. Transparent accreditation of other regulators and strong assurance are essential to provide community confidence in devolved arrangements.

The community does not trust the EPBC Act to deliver effective protection of the environment and industry view it as cumbersome, duplicative and slow. Reforms should focus on improving transparency of decision-making to reduce the need to resort to court processes to discover information. Adequate time is needed for the community to consider information and respond to it. Legal challenges should be limited to matters of outcome, not process.

Decision-makers, proponents and the community do not have access to the best available data, information and knowledge. There is no single national source of truth that people can rely on. This adds cost for business and government, as they collect and recollect the information they need. A national ‘supply chain’ of information with a clear custodian and an overhaul of systems is required so that the right information is delivered at the right time to those who need it.

There is no effective framework to support a comprehensive, data-based evaluation of the EPBC Act, its effectiveness in achieving intended outcomes and the efficiency of implementation activities. A coherent framework to monitor and evaluate the effectiveness of the EPBC Act is needed, along with a revamp of national State of the Environment reporting and accelerated delivery of national environmental economic accounts.

To deliver ecologically sustainable development, the EPBC Act must encourage restoration. Environmental offsets are poorly designed and implemented, delivering an overall net loss for the environment. Offsets need to include a focus on restoration and should be enshrined in the law. Other policy mechanisms to accelerate environmental restoration should be explored, including leveraging the carbon and biodiversity markets and co-investing with the philanthropic and private sectors.

Monitoring, compliance, enforcement and assurance under the EPBC Act is ineffective. Serious enforcement actions are rarely used, indicating a limited regard for the benefits of using the full force of the law where it is warranted. An independent compliance and enforcement regulator, not subject to actual or implied political direction from the Commonwealth Minister, should be established. It should be properly resourced and have available to it a full toolkit of powers.

The EPBC Act is ineffective and reform is long overdue. The proposed reforms are substantial, but the changes are necessary to set Australia on a path of ecologically sustainable development. A phased approach to reform is proposed with continual improvement.

Appendix 1 to the Interim Report provides a prototype National Environmental Standard for matters of national environmental significance (MNES). The prototype is based on policies, commitments and requirements of Commonwealth law. The prototype is a starting point to stimulate discussion.