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. The EPBC Act was drafted 20 years ago, and best practice legislative drafting has evolved since this time.
There is a general need to remove duplication, apply consistency and simplify the law where possible. An example of this is the distributed nature of compliance and enforcement provisions throughout the EPBC Act, rather than a broad set of compliance and enforcement tools that can be applied across it (see Chapter 9).
Many clauses in the EPBC Act are unnecessarily wordy and verbose, which makes them hard to read. For example, section 133(1):
‘After receiving the assessment documentation relating to a controlled action, or the report of a commission that has conducted an inquiry relating to a controlled action, the Minister may approve for the purposes of a controlling provision the taking of the action by a person’.
The inter-relationships between the EPBC Act and other laws (for example, the Native Title Act 1993 and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984) are not clear. This arises because definitions of terms, processes and outcomes set out in the Act do not always align or operate in conjunction with other legislation.
The level of detailed prescription in the EPBC Act is not consistent with the Legislation Act 2003 or the Acts Interpretation Act 1901. Examples of this include:
- The level of prescription in the Act on how an instrument is revoked or amended makes it difficult to amend that instrument where it is redundant or no longer has the intended effect.
- Instruments made under the Act can be amended by other instruments, leading to legal questions about its status. For example, heritage lists are published on the Department’s website, but can be amended by gazette notices (for inclusion), notifiable instruments or legislative instruments (for removal of places, depending on the reason for removal).