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Chapter 3 - Legislative complexity

Key points

The EPBC Act is complex. Complex legislation makes it difficult, time-consuming and expensive for people to understand their legal rights and obligations. This leads to confusion and inconsistent decision-making, creating unnecessary regulatory burden for business, and restricts access to justice.

The key reasons the EPBC Act is complex are:

  • The policy areas covered by the Act are inherently complex. Environmental approvals, Commonwealth reserves, wildlife trade, and the conservation and recovery of threatened species are all complex. The way the different areas work together to deliver environmental outcomes is not always clear, and many areas operate in a largely siloed way.
  • The EPBC Act relies heavily on detailed prescriptive processes that are convoluted and inflexible, meaning engaging with it is time consuming and costly. This is particularly the case for environmental impact assessment (EIA). Convoluted processes are made more complex by important terminology being poorly defined or not defined at all.
  • The construction of the EPBC Act is archaic, and it does not meet best practice for modern regulation.

The key reform directions proposed by the Review are:

  • In the short-term, legislative amendments to the EPBC Act are required to address known inconsistencies, gaps, and conflicts in the Act.
  • In the longer-term, a comprehensive redrafting of the Act (or related Acts) is required. This should be done following the development of the key reforms proposed by this Review. This sequencing will ensure that legislation is developed in a way that supports the desired approach, rather than inadvertently hindering it.
  • Redrafting could include consideration of dividing the Act—such as creating separate pieces of legislation for its key functional areas.

3.1 - The EPBC Act covers a wide range of complex policy areas

The policy areas covered by the EPBC Act are complex. Having multiple policy functions in the one Act makes it very challenging to understand how these areas operate separately or together. The inter-relationships between the different parts of the Act are often not clear.

3.2 - Environmental impact assessment is a convoluted process based on poorly defined key terms

The EPBC Act uses overly prescriptive processes. The effort of the regulator and the proponent is often focussed on completing the process quickly rather than achieving the outcome intended.

3.3 - The construction of the EPBC Act is archaic

The EPBC Act does not meet Commonwealth Government best practice guidance on minimising legislative complexity. There is opportunity to remove duplication, apply consistency and simplify the law. The inter-relationships between the EPBC Act and other laws are not clear.

3.4 - Proposed key reform directions

Legislative amendments to the EPBC Act are proposed to address known inconsistencies, gaps, and conflicts in the Act. Simplifying the legislation should follow the implementation of proposed key reforms to the regulatory system. It may be prudent to consider dividing the Act along functional or operational lines.