10.3 - Phase 3—new law and implementation of the reformed system

Once the policy direction is settled, and key initiatives are underway, the final phase of reform should involve a complete legislative overhaul to focus on establishing remaining elements of reform and implementing the reformed system.

In this phase, a full suite of National Environmental Standards should be made that cover all areas that have been identified by this Review. This should draw on the experience of implementing the Interim National Environmental Standards and improvements in data and information. Other regulators seeking to be devolved decision-makers, including states and territories, must demonstrate how their regulatory approach meets the National Environmental Standards. All arrangements in place for devolved decision-making should be formally reviewed at this time. Where necessary, the settings in the EPBC Act for making standards, accrediting other regulators and quality assurance of the devolved model and compliance should be amended based on lessons learned.

Phase 3 should deliver a comprehensive redrafting of the EPBC Act to simplify, clarify and strengthen the law. The re-drafted law should incorporate key reform proposals including:

• settings to hardwire the concept of ecologically sustainable development (ESD) into the Act and require that it forms the basis of all decisions because it is the overall outcome that the Act seeks to achieve
• settings for making and reviewing national and regional plans
• measures to improve trust in decision-making, including:
  • requirements for greater transparency
  • an independent monitoring, compliance, enforcement and assurance regulator, not subject to actual or implied direction from the Environment Minister that has a clear mandate to enforce compliance with law
  • changes to the structures of statutory advisory committees, to provide confidence that decision-makers receive sound information and advice for making decisions
  • revised legal review mechanisms to provide regulatory certainty and build trust in decision-making
• a hierarchy of protecting (avoiding impact), conserving (minimising impact) and restoring the environment, including incorporating restoration-focused environmental offsets into the law
• mechanisms to support the use of markets and trusts to deliver environmental restoration.

In embarking on re-drafting the law, the merits of separating the EPBC Act along key functional lines should be considered.

The proposed reforms seek to build community trust that national environmental laws deliver effective protections and regulate businesses efficiently. It is impossible for the Review to satisfy the aspirations of every person with an interest in the environment or in business development. Rather, the Review has attempted to provide a way forward, to ensure effective environment protection and biodiversity conservation and efficient regulation of business. The EPBC Act in its current form achieves neither.

The proposed reforms are substantial, but the changes are necessary to set Australia on a path of ecologically sustainable development. This path will deliver long-term economic growth, environmental improvement and the effective protection of Australia’s iconic places and heritage for the benefit of current and future generations.