Chapter 10 - Proposed reform pathway
The EPBC Act is ineffective and reform is long overdue. Past attempts to do so have been largely unsuccessful. Commitment to a clear pathway for reform is required.
Immediate steps to start reform should be taken, focusing on:
- reducing points of clear duplication, inconsistencies, gaps and conflicts in the EPBC Act
- improving the settings for devolved decision-making, including issuing Interim National Environmental Standards to provide confidence that outcomes will be delivered
- building the foundations to provide a solid base for longer-term reform.
Similarly, in the short-term, the conversation to deliver complex reforms and the mechanisms to underpin continuous improvement should commence so that policy development and implementation plans can be finalised, and resourcing commitments made.
Once these steps are taken, reform should focus on comprehensively fixing the problems with the EPBC Act, with this phase of reform focused on:
- developing a full suite of National Environmental Standards, refined from the lessons learned from implementing the Interim Standards, and armed with improved data and information
- redrafting the Act to simplify, clarify and strengthen it
- embedding changes to governance arrangements.
The environment, heritage and Indigenous policy areas covered by the EPBC Act are complex. The benefit of reforms commenced now will reap benefits over the next decade and beyond.
The reform agenda proposed is not one to ’set and forget’. Settings should be monitored and evaluated, and the path forward adjusted as lessons are learnt and new information and ways of doing things emerge.
The EPBC Act is long overdue for improvement. Despite multiple past efforts, the Act has remained largely unreformed over its 2 decades of operation. It is not fit-for-purpose because it is not able to deliver long-term sustainable growth.
Effective administration of a regulatory system is not cost free. The reforms proposed seek to improve the overall efficiency of the system. It is important to consider how to best fund the implementation of a reformed system, including the fair costs that should be recovered from proponents. In principle, government should pay for elements that are substantially public benefits (for example, the development of standards) while business should pay for those elements of the regulatory system required because they derive private benefits by impacting the environment (for example, approvals and monitoring, compliance, enforcement and assurance). There are elements of the regulatory system that have mixed benefits where costs should be shared (for example, data and information).
Although the reform pathway is ultimately a decision for the Commonwealth Government, the Review considers that a phased approach is necessary to deliver immediate improvements to the effectiveness and efficiency of the EPBC Act, while taking the time to do the detailed work required to deliver more complex reforms. Three key phases should be considered:
- Phase 1 should deliver urgent, long-overdue changes to the Act and take the steps needed to build the core foundations for more complex reform. There is no reason to wait to commence this phase.
- Phase 2 should commence early, to start the conversation on complex policy reforms and to deliver those elements of reform required to support continuous improvement in the way the Act operates.
- Phase 3 should build on Phases 1 and 2, and focus on delivering the more complex legislative reform that will take time to develop and implement.