The original ambition of the EPBC Act for a ‘joined up’, comprehensive environmental framework—one that combined 5 pieces of legislation into one—has not been realised.
The complexity in the EPBC Act is in part driven by underlying policy complexity. The broad policy areas covered by the Act—environmental approvals, Commonwealth reserves, wildlife trade, and threatened species conservation and recovery—are complex in their own right.
Having multiple policy functions in the one Act makes it very challenging to understand how the requirements for these areas operate separately or together. This creates confusion and inconsistency in decisions, and limits the effectiveness of the compliance and enforcement function (see Box 9). The inter-relationships between the different parts of the EPBC Act are often not clear, and there can be ambiguity when different parts of the Act are in operation.
Box 9 - Unclear linkages between the functional parts of the EPBC Act
Example 1: The link between recovery plans (Part 13) and approval decisions (Part 9)
It is administratively difficult to apply the current legislative requirement to ‘not act inconsistently with a recovery plan’ made under Part 13 and an approval decision made under Part 9. There are commonly different opinions as to what practically amounts to an inconsistency. Recovery plans are written with a focus on protecting and enhancing species survival. Decisions made under Part 9 are generally applied in a way that minimises harm to the environment while facilitating development but do not aim to enhance species survival.
Example 2: The link between permits (Part 13) and approvals (Part 9) in a Commonwealth area
A Part 13 permit (to kill, injure, take, trade, keep or move a member of a listed species or ecological community in or on a Commonwealth area) is not required for actions that are covered by a Part 9 approval. However, where a Part 9 approval has not been granted (for example, where a ‘not controlled action’ decision or a ‘particular manner’ decision is made) a Part 13 permit is still required. This means that even when the same action is found not to have a significant impact on an MNES under one part of the Act, it could still be an offence under another (see Chapter 1).
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Contents
- Foreword
- The Review and how to have your say
- Summary points
- Executive Summary
- Chapter 1 - National level protection and conservation of the environment and iconic places
- Chapter 2 - Indigenous culture and heritage
- Chapter 3 - Legislative complexity
- Chapter 4 - Efficiency
- Chapter 5 - Trust in the EPBC Act
- Chapter 6 - Data, information and systems
- Chapter 7 - Monitoring, evaluation and reporting
- Chapter 8 - Restoration
- Chapter 9 - Compliance, enforcement and assurance
- Chapter 10 - Proposed reform pathway
- Appendix 1 - Prototype National Environmental Standard for Matters of National Environmental Significance