1.2 - The EPBC Act does not enable the Commonwealth to play its part in managing Australia’s environment

1.2.1 Managing Australia’s environment is a shared responsibility

The construct of Australia’s federation means that the management of Australia’s environment is a shared responsibility, and jurisdictions need to work effectively together and in partnership with the community.

The Commonwealth, on behalf of the nation, has signed up to international agreements on the environment and has a responsibility to ensure they are implemented⁸. The Commonwealth’s responsibilities in managing the environment have been confirmed by High Court decisions over time and agreed in foundational intergovernmental agreements on the environment⁹. These agreements reflect the respective constitutional responsibilities of the Commonwealth and states and territories. The Commonwealth’s interests are known as ‘matters of national environmental significance’ (MNES).

The EPBC Act implements the Commonwealth's responsibility for key MNES¹⁰. Changes over time, including to MNES, have contributed to a drift in the Commonwealth's role and introduced duplication with the role of the states and territories. This is particularly the case for MNES that focus on activities that give rise to threats or risks to the environment, rather than protection of the environmental matter itself.

Ultimately, Australia’s system of environment and heritage protection management must recognise the respective roles of the Commonwealth and states and territories, and jurisdictions need to work together effectively. This was acknowledged in the foundational intergovernmental agreements, which committed to an intent of harmonised laws and regulatory systems, based on clear interests and where possible accommodating their respective responsibilities. This direction was embedded in the original design of the EPBC Act, but the implementation of the Act has failed to fulfil this ambition.

The EPBC Act is also the mechanism for the Commonwealth to regulate the environment on Commonwealth land and waters, and the environmental activities undertaken by the Commonwealth.