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1.4 - Proposed key reform directions

1.4.1 - The EPBC Act should focus on Commonwealth responsibilities

The Review has received a wide range of views on the MNES that should be included in the EPBC Act (see Box 3). Many, including scientific stakeholders and environmental non-government organisations (ENGOs) express a view that triggers should be more expansive, extending the reach of the Commonwealth to deliver greater environmental protections. Others, particularly industry groups and advocates of streamlined and efficient regulation, argue that current triggers result in duplication with other regulators and should be removed (see Chapter 4).

Box 3 Stakeholder suggestions for changes to matters of national environmental significance21

Ecosystems, biodiversity and habitat—National Reserve System (national parks, marine protected areas, covenanted private lands and Indigenous Protected Areas); vulnerable ecological communities: ecosystems of national importance; areas of outstanding biodiversity value (e.g. climate refuges, biodiversity hotspots, critical habitats); wetlands of national significance and native vegetation.

Threats—Key threatening processes (e.g. significant land clearing, invasive species or disaster-related impacts).

Cultural—Mechanisms for including Indigenous values, priorities and places, or entities of particular significance and concern (e.g. species, populations, ecological communities, ecosystems, stories, songlines); tangible and intangible cultural heritage.

Climate Change—Significant greenhouse gas emissions; protection of the environment from climate change impacts (see section 1.4.1).

Water—Significant water resources (including surface and groundwater, rivers, wetlands, aquifers and their associated values); an expanded water trigger beyond coal seam gas and large coal mining; nationally significant river systems; ground water dependent ecosystems. Other stakeholders suggest removing or reducing the scope of the water trigger to remove duplication with state and territory regulations.

Nuclear—Expand limitations contained in s140A of the EPBC Act on approval of certain nuclear installations to include all uranium mining and milling actions. Other stakeholders suggest reducing the scope of the nuclear trigger to remove duplication with state, territory and other Commonwealth regulations.

Contributions to the Review have suggested that the EPBC Act should be expanded to include a climate trigger, which would seek to solve 2 apparent problems. The first view presented is that Australia’s current emissions reduction policy settings are insufficient to meet our international commitments and more needs to be done. Advocates for a climate trigger suggest it would contribute to reducing Australia’s emissions profile by reducing land clearing and regulating projects with large emission profiles. Successive Australian Governments have elected to adopt specific policy mechanisms to implement their commitments to reduce emissions. The Review agrees that these mechanisms, not the Act, are the appropriate vehicle for addressing greenhouse gas emissions. The Review considers there is merit in mandating proposals required to be assessed and approved under the Act (due to their impacts on nationally protected matters) to transparently disclose the full emissions profile of the development.

The second view is that the EPBC Act does not effectively support adaptive management that uses best available climate modelling and scenario forecasting to ensure the actions we take to protect matters are effective in a climate-changed world.

The EPBC Act should, however, require that development proposals explicitly consider the effectiveness of their actions to avoid or mitigate impacts on nationally protected matters under specified climate change scenarios. Many of the suggestions about the Commonwealth taking on a broader role reflect a lack of trust that states and territories will manage these elements well. The Review does not agree with suggestions that the environmental matters the Act deals with should be broadened. The remit of the Act should not be expanded to cover environmental matters that are state and territory responsibilities. To do so would result in muddled responsibilities, further duplication and inefficiency. Unclear responsibilities mean that the community is less able to hold governments to account.

The EPBC Act should focus on the places, flora and fauna that the Commonwealth is responsible for protecting and conserving in the national interest. This includes World and National Heritage, internationally important wetlands, migratory species and threatened species and ecological communities, as well as the environment of Commonwealth areas and actions by the Commonwealth.

The Review considers that the Commonwealth must maintain the ability to intervene where a project may result in the ‘irreversible depletion or contamination’ of cross-border water resources. Similarly, for community confidence, the Commonwealth should retain the capacity to ensure radioactive activities are managed effectively (see Chapter 4).

1.4.2 - The EPBC Act should apply and deliver ecologically sustainable development

The objects of the EPBC Act are sufficiently broad to enable the Commonwealth to fulfil its role. The range of views on the objects of the Act received by the Review span from full support to a complete revamp. The broadness of the objects has been applauded for flexibility, criticised for carrying little clout and being ‘uninspiring and perfunctory’22.

The Review considers that amending the objects of the EPBC Act will not ‘provide more clout’ or deliver better outcomes unless other issues that diminish the effectiveness of the Act to protect the environment are addressed.

A fundamental shortcoming in the EPBC Act is that it does not clearly outline the outcomes it aims to achieve. Ecologically sustainable development (ESD) should remain the overall outcome that the Act seeks to achieve. To do this, the concept needs to be hardwired into the Act and the basis of the operation of the Act. This means that:

  • the Act must require the Environment Minister to apply and deliver ESD, rather than just consider it
  • decisions must be based on a comprehensive assessment of ESD, including transparent environmental, social, economic and cultural information (see Chapter 6).

Ideally, achieving ESD is a systems-based outcome rather than the outcome of every decision made. To support further development, the system needs flexibility to balance out impacts across landscapes space and timescales. This can be best achieved by adopting a regional planning approach.

To deliver ESD, the EPBC Act should support a focus on protecting (avoiding impact), conserving (minimising impact) and restoring the environment. Given the state of decline of Australia’s environment, restoration is required to enable future development to be sustainable.

Key mechanisms are required to support restoration including regional plans to identify priorities (see 1.4.3) and investment in restoration through markets and direct investments (see Chapter 7).

1.4.3 - Legally enforceable National Environmental Standards should be the foundation for effective regulation

National Environmental Standards

Legally enforceable National Environmental Standards (in the form of a regulatory instrument) are required to underpin the effective operation of the EPBC Act. The law must require that these Standards are applied, unless the decision-maker can demonstrate that the public interest and the national interest is best served otherwise.

National Environmental Standards serve 2 fundamental purposes: to improve the effectiveness and the efficiency of Australia’s national environmental law. Strong, clear and nationally consistent Standards will improve outcomes for Australia’s biodiversity and heritage, and ensure development is ecologically sustainable over the long-term. Improved certainty for all stakeholders will lead to a more efficient, accessible and transparent regulatory system, and enable faster and lower cost development assessments and approvals (see Chapter 4).

Biodiversity and environmental protection standards are increasingly used internationally, including to set sustainability targets for internationally traded commodities such as coffee, banana, cocoa and cotton23. There is strong support for National Environmental Standards amongst submitters—including the 10 Deserts Project24, Australian Conservation Foundation25, the Business Council of Australia26, the Minerals Council of Australia27, the Wentworth Group of Concerned Scientists28 and the Western Australian Government29.

The suite of National Environmental Standards should set the requirements for decision-making to deliver outcomes for the environment and clearly define the fundamental processes that ensure sound and effective decision-making. As a starting point, the suite of National Environmental Standards should include requirements relating to:

  • ecologically sustainable development
  • matters of national environmental significance
  • transparent processes and robust decisions, including:
    • judicial review
    • community consultation
    • adequate assessment of impacts—including climate change impacts—on MNES
    • emissions-profile disclosure
  • Indigenous engagement and involvement in environmental decision-making
  • monitoring, compliance and enforcement
  • data and information
  • environmental monitoring and evaluation of outcomes
  • restoration and recovery
  • wildlife permits and trade.

The development of National Environmental Standards

The process for making National Environmental Standards should be set out in the EPBC Act. The Act should include requirements for regular monitoring and reporting, and periodic review and amendment as required, so that Standards remain contemporary and effectively deliver environmental outcomes.

The Environment Minister should set the National Environmental Standards. It cannot be a process of negotiation with the states and territories that ends in agreement on a ‘lowest common denominator’.

Standards should be developed in consultation with science, Indigenous, environmental and business stakeholders, and the community. Although consultation with states and territories is essential, the process cannot be one of negotiated agreement between governments, with rules set at the lowest bar. It is important that this process not be unnecessarily drawn out or arduous. Stakeholders from these key groups should come together at an early stage to work on developing the suite of Standards, building on the constructive contributions that have already been provided to the Review.

Interim Standards are recommended as a first step, to facilitate rapid reform and streamlining. These Interim Standards will need to set out environmental outcomes in terms of clear limits that define acceptable impacts on nationally important environmental matters. They can and should evolve as soon as practicable into more specific, definitive and data-based Standards as information improves. As granularity in Standards is improved, more precise Standards will provide increased certainty for all stakeholders. Improvements in Standards will drive faster and lower-cost development assessments and approvals.

Ultimately, Standards should be granular and measurable—with targets that specify the intended outcomes—but without being overly prescriptive. This will provide flexibility without compromising the environment. A key problem with the administration of the current EPBC Act is that rules are buried in thousands of pages of hundreds of statutory documents that collectively fail to provide clear and specific guidance for decision-making.

A granular Standard for threatened species should be expressed in quantitative measures to support recovery over a specific time frame. Measures such as population size and trends, and the area and quality of habitat available across a landscape type (i.e. population numbers, hectares, threat management and years) should be developed. In time, and with better information and the capability to model ecosystem outcomes, these Standards could shift to measures of probable outcomes for species (such as the likelihood of survival or recovery).

The specification of standards for pollutants under the National Environment Protection (Ambient Air Quality) Measure, is an example of a granular standard that has been adopted across Australia.

In the short-term, the granularity of National Environmental Standards is limited by the information available to define them with certainty and effectively apply them to decision-making. A quantum shift will be required in the quality of accessible data and information to increase the granularity of Standards (see Chapter 6).

The Commonwealth has made past attempts to define some standards for the EPBC Act30. These attempts focused on clarifying important processes that were already set out in the Act and provide a useful foundation to build on in developing the full suite of National Environmental Standards. A key shortcoming of these is the absence of any clear articulation of the intended outcomes for, and acceptable impacts on, MNES. As a priority, an Interim Standard for MNES is needed to address ongoing environmental decline and to provide clear, consistent rules for decision-making.

A prototype Standard for MNES is provided in Appendix 1. An extract from this prototype is set out in Table 1. The prototype is a starting point to stimulate discussion. The Review acknowledges that further work is needed to test and refine the Standard. It is based on key principles such as prevention of environmental harm and non-regression, and has been developed using existing policy documents and legal requirements. The prototype shows that an Interim National Environmental Standard for MNES could be developed quickly and would immediately provide greater clarity and consistency for decision-making.

 

Table 1 - Example of prototype Standard for MNES

Matter

Prototype standard

World and National Heritage

  • No development incursion into a World or National Heritage area, unless it promotes the management and values of the property or place.
  • Actions must not cause or contribute to a detrimental change to the World or National Heritage values of a property or place.
  • Management arrangements must ensure World and National Heritage values are protected and conserved.

Threatened species and communities

For vulnerable species:

  • No net loss for vulnerable species habitat.
  • Actions must manage onsite impacts and threats, where these are not managed through alternative frameworks.

For endangered species and communities:

  • No net loss for endangered species habitat and ecological community distribution.
  • No detrimental change to the listed critical habitat of a species or ecological community.
  • Actions must manage onsite impacts and threats, where these are not managed through alternative frameworks.

For critically endangered species and communities:

  • Actions must deliver a net gain for critically endangered species habitat and ecological community distribution.
  • No detrimental change to listed critical habitat of a species or ecological community.
  • Actions must manage onsite impacts and threats, where these are not managed through alternative frameworks.

Additional requirements in Commonwealth areas:

  • Actions must not kill, injure or take a listed threatened species or ecological community, except where an EPBC Act permit is issued.

Note: See Appendix 1 for further details.

1.4.4 - Greater focus on adaptive planning required to deliver environmental outcomes

Adaptive regional planning approaches that reflect National Environmental Standards

To support decision-making, and to encourage greater cooperation between jurisdictions, the Commonwealth should adopt adaptive regional planning approaches that reflect National Environmental Standards.

Regional plans would take into account cumulative impacts, key threats and build environmental resilience in a changing climate by addressing cumulative risks at the landscape scale. Managing these threats to MNES at the regional scale will have flow-on benefits for more common species and biodiversity more broadly.

Regional plans should be developed that support the management of threats at the right scale, and to set clear rules to manage competing land uses. These plans should prioritise investment in protection, conservation and restoration to where it is most needed, and where the environment will most benefit.

Ideally, these plans would be developed in conjunction with states and territories and community organisations. However, where this is not possible, the Commonwealth should develop its own plans to manage threats and cumulative impacts on MNES. The regional planning efforts should be focused on those regions of highest pressure on MNES.

Three regional planning tools are proposed:

  1. Regional recovery plans—developed by the Commonwealth for MNES
  2. Bioregional plans—developed collaboratively between the Commonwealth and state and territory governments.
  3. Strategic assessments—developed at the request of a proponent, in partnership with the Commonwealth and the relevant state or territory government.

Commonwealth-led regional recovery plans

A shift is required from recovery planning for an individual listed species or community, to the landscape scale with a focus on biodiversity conservation outcomes for listed threatened species and ecological communities. This drives efficiency, because many listed species in a region rely on the same habitat and suffer from the same threats. New listings in a region can be more easily incorporated, reducing the need for individual plans. Such landscape scale planning would also have benefits for more common species and contribute better to arresting the overall decline of the environment. Initial focus should be on Australia’s unique biodiversity hotspots.

Regional recovery plans should provide for coordinated management of threats to listed species and communities in a region, and to consider the cumulative impacts of these threats. They should identify important populations or areas of critical habitat.

Regional recovery plans should incorporate local ecological knowledge including Indigenous knowledge and could draw from regional-scale plans that are already in place, including Healthy Country Plans or plans prepared by natural resource management groups.

Importantly, regional recovery plans should provide the basis for prioritising Commonwealth action and investment, including the direction of offset obligations arising from development. These plans should identify areas where protection, conservation and restoration are needed, and areas for investment that will deliver the greatest environmental benefit.

Bioregional plans developed in collaboration with states and territories

Ideally, the Commonwealth would work with the states and territories to develop and agree bioregional plans that accommodate their respective interests in the environment. These plans would be developed consistent with the National Environmental Standards (and, where in place, regional recovery plans) and address environmental, economic, cultural and social values.

Bioregional plans should be developed in collaboration with a state or territory, or a jurisdiction could propose its own plan to be considered and accepted by the Commonwealth as a bioregional plan.

Bioregional plans would set the clear rules to manage competing land uses to support regulatory streamlining. They would identify areas where development may be of lower or higher risk to the environment, including those areas where development assessment and approval is not required. The Environment Minister (or delegated decision-maker) should make decisions on development approvals in a way that is consistent with the provisions of the bioregional plan.

Strategic assessments

Part 10 of the EPBC Act already provides for landscape-scale assessments in the form of strategic assessments. The legal arrangements for strategic assessments are complex (see Chapter 3), but the strategic assessments that have been conducted have led to more streamlined regulatory arrangements. However, some have been criticised for not achieving their intended environmental outcomes31.

The EPBC Act should continue to enable jurisdictions and/or proponents to enter into a strategic assessment with the Commonwealth for developments not covered by a bioregional plan. As is the case now, a strategic assessment would provide a single approval for a broad range of actions covering multiple projects to provide up-front certainty of permissible development areas and environmental outcomes.

A strategic assessment should be required to be developed in a manner that is consistent with the National Environmental Standards, and regional recovery plans where they are in place.

Strategic national plans

Not all issues or threats have a spatial lens. There are nationally pervasive issues that would benefit from strategic coordination.

Strategic plans for big-ticket items can provide a national framework to guide a national response, direct research (for example feral animal control methods), support prioritisation of investment (public and private) and enable shared goals and implementation across jurisdictions. National level plans can achieve efficiencies and provide a consistent approach that can be reflected in regional plans. They can also inform activities in those areas where a regional plan is not in place.

Specific opportunities that lend themselves to national strategic planning include:

  • the delivery of a comprehensive, adequate and representative National Reserve System
  • high-level and cross-border threats, such as biosecurity or feral animals
  • the consideration of pressures and risks through forecasting and scenarios—for example how climate change scenarios should be used to support planning and decisions.

Table 2 provides a summary of the proposed adaptive planning tools.

Table 2 - Proposed adaptive planning tools

Adaptive planning tool

Leadership, collaboration and approval

Scope

Intent

Spatial coverage

Regional recovery plans

Led by Commonwealth, approved by Commonwealth

Listed threatened species and ecological communities

  • Coordinated threat management, consideration of cumulative impacts
  • Support prioritisation of Commonwealth action

Priority regions in the first instance

Bioregional plans

Collaborative process led by jurisdictions or jointly between jurisdictions and the Commonwealth. Approved or accredited by the Commonwealth

Biodiversity, economic, cultural and social values

  • Consistent with the National Environmental Standards and regional recovery plans
  • Set clear rules to manage competing land uses

Priority regions in the first instance, or where proposed by a jurisdiction for accreditation

Strategic assessments

Led by proponents and approved by the Commonwealth

Biodiversity, economic, cultural and social values

  • Consistent with the National Environmental Standards and regional recovery plans
  • Provide a single approval for a broad range of actions

Where instigated by proponent

Strategic national plans

Led by Commonwealth, approved by Commonwealth

Nationally pervasive issues such as high-level and cross-border threats

  • Provide a national framework to guide a national response, direct research and support prioritisation
  • Enable shared goals and implementation across jurisdictions

Not spatially focused

1.4.5 - Clear outcomes, National Environmental Standards and regional plans need to be underpinned by fundamental changes to the way the EPBC Act operates

Core reforms proposed by the Review, including National Environmental Standards and improved planning frameworks, aim to support greater cooperation and harmonisation between the Commonwealth, states and territories (see Chapter 4).

The proposed reforms will enable the Commonwealth to protect the environment in the national interest, rather than focus its efforts on transactional elements that can be duplicative, costly to business and result in little tangible benefit to the environment.

To achieve this, a quantum change in the sophistication of the information, data and regulatory systems (see Chapter 6) is required. Active mechanisms to restore areas of degraded or lost habitat are also needed to ensure Australia’s environment is conserved for the future (see Chapter 7).

This must be accompanied by transparency, fundamental improvements in monitoring and evaluation (Chapter 8) and strong monitoring, compliance, enforcement, and assurance (Chapter 9).

The key reform directions proposed by the Review seek to build community trust that the national environmental law is effectively protecting our extraordinary environment and heritage in the national interest for future generations.

Footnotes

[21] This box draws on input from many submissions to the EPBC Act Review Discussion Paper . The following submissions and documents provide further detail on the range of positions put forward: Threatened Species Scientific Committee, ANON-K57V-XF2U-J; The University of Melbourne, The University of Queensland, Australian National University, Charles Darwin University, ANON-K57V-XYS3-4; Australian Academy of Science, ANON-K57V-XQQM-M; WWF-Australia, ANON-K57V-XQKR-K; Local Government Association of Queensland, ANON-K57V-XQBF-X; Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development, ANON-K57V-XFQ8-M; Australian World Heritage Advisory Committee, ANON-QJCP-UGZ1-N; Douglas Shire Council, ANON-K57V-XFDK-T; Regional Development Australia Pilbara, ANON-K57V-XFKK-1; Indigenous Reference Group to the Ministerial Forum on Northern Australia, ANON-K57V-XYV5-9; Joint ENGO on Nuclear Issues (Arid Lands Environment Centre Australian Conservation Foundation, Australian Nuclear Free Alliance, Conservation Council SA, Conservation Council WA, Environment Centre NT, Environment Victoria, Friends of the Earth Australia, Greenpeace Australia Pacific, Mineral Policy Institute, Nature Conservation Council NSW, Queensland Conservation Council, The Wilderness Society), ANON-QJCP-UGK8-D. It also drew from: EDO NSW and Humane Society International Australia 2018, Next Generation Biodiversity Laws – Best practice elements for a new Commonwealth Environment Act.

[22] These views were drawn from a review of submissions to the EPBC Act Review Discussion Paper. A range of the views expressed can be found in these submissions: Archer Mountain Earth Community, ANON-K57V-XF8Z-W; Sue Carolane, ANON-K57V-XF6P-H; Anonymous, ANON-K57V-XFY2-P; Lyndal Breen, ANON-K57V-XFP7-J; Deidre Stuart, ANON-K57V-XFJT-9.

[23] The International Institute for Sustainable Development has further information on international biodiversity standards.

[24] 10 Deserts Project, ANON-K57V-XQQQ-R, Submission in response to EPBC Act Review Discussion Paper.

[25] Australian Conservation Foundation, ANON-K57V-XQXS-1. Submission in response to EPBC Act Review Discussion Paper.

[26] Business Council of Australia, ANON-QJCP-UGHD-P, Submission in response to EPBC Act Review Discussion Paper.

[27] Minerals Council of Australia, ANON-K57V-XGCN-W, Submission in response to EPBC Act Review Discussion Paper.

[28] Wentworth Group of Concerned Scientists, ANON-K57V-XQTW-1, Submission in response to EPBC Act Review Discussion Paper.

[29] Western Australian Government, ANON-QJCP-UGJU-9, Submission in response to EPBC Act Review Discussion Paper.

[30] Department of the Environment 2014, Standards for Accreditation of Environmental Approvals under the Environment Protection and Biodiversity Conservation Act 1999.

[31] The Victorian Auditor-General’s Office in the June 2020 audit report ‘Protecting Critically Endangered Grasslands’ found that the Victorian Government commitments under the Melbourne Strategic Assessment to improve conservation outcomes, by establishing the Western Grassland Reserve and Grassy Eucalypt Woodlands Reserve by 2020, had not been met. This was also noted in submissions to the EPBC Act Review Discussion Paper, including the Victorian National Parks Association, ANON-K57V-XQQG-E. Submission in response to EPBC Act Review Discussion Paper.