3.4 - Proposed key reform directions

Complexity of a policy area necessitates a degree of complexity in legislation. There is general acceptance that the core functions of the EPBC Act are all necessary to implement Australia’s international obligations and to achieve national interest outcomes.

The key reform directions proposed by this Review, particularly those related to the hardwiring of the requirement for ecologically sustainable development (ESD), the establishment of National Environmental Standards, and pursuing a regional planning approach, will all reduce the need for complexity in the law.

The controversial and contentious nature of some parts of the EPBC Act result in political sensitivity about the Act as a whole. Making administrative amendments or amendments to less controversial parts of the Act has proven difficult. Successive governments have been reluctant to propose amendments unless absolutely unavoidable, leading to a hesitation even within the Department to recommend amendments. Such opportunities are seen as out of reach, when they should be a matter of routine. Largely uncontested changes to less-controversial parts of the Act (such as some related to wildlife trade or the management of Commonwealth reserves) have suffered from this unwillingness to amend the Act.

3.4.1 - Make known improvements to the EPBC Act in its current form

Key problems with the EPBC Act, and the potential solutions for them, have been long-known. In the short-term, legislative amendments to the Act are required to address known inconsistencies, gaps, and conflicts in the Act. Submissions to the Review have indicated this to be a priority⁶⁵.

Opportunities to reduce process prescription

Process prescription must be addressed both in how the EPBC Act is constructed as well as how it is implemented. Opportunities to reduce prescription include:

• reducing the number of statutory tests—many different statutory tests apply to a decision. For example, a decision-maker may have to ‘take into account’, ‘have regard to’ and ‘consider’ different documents or requirements.
• clarifying the information that must be before the decision-maker as part of a briefing (and the form in which it should be provided).
• removal of requirements for publication of notices in newspapers—these and similar reductions in process prescriptions affecting transparency should be offset by corresponding improvements in the accessibility of information and the use of alternative media to ensure the overall transparency of the Act is increased.

Resolving the connection between Part 9 and Part 10

Long-standing problems relating to the connection between approvals (Part 9) and strategic assessments (Part 10) should be addressed:

• The inability to vary a program once endorsed makes a Part 10 approval frozen in time and unable to respond to changes in information and circumstances. For example, strategic assessments are unable to deal with new listings. This means assessments that operate for long periods of time are unable to make adjustments to achieve the environmental outcomes envisaged.
• Where an agreed strategic assessment relies on an endorsed statutory regime (as is the case with the National Offshore Petroleum Safety and Environmental Management Authority) and these regimes are amended, there is a risk that future actions conducted consistent with the amended regime differ from those endorsed by the strategic assessment.
• Strategic assessments are made on a ‘policy, plan or program’, which commonly include commitments that must be fulfilled by different people. The consequences of a failure to implement a commitment in an endorsed ‘policy, plan or program’ are unclear. For example, it is unclear whether a person can rely on a strategic assessment approval if a commitment has not been fulfilled.
• Strategic assessments give approval for many unidentified persons to undertake the approved action(s) or class of action. In most cases, there is no identified ‘approval holder’ for a Part 10 approval. This makes it difficult to vary the conditions of the strategic assessment approval where the consent of the approval holder is required, or to revoke or suspend a Part 10 approval because there are legal difficulties in providing procedural fairness.

Other areas of amendment

Other chapters of this interim report highlight opportunities for amendments to the EPBC Act. These include:

• the need for a complete set of compliance and enforcement tools across the Act to harmonise monitoring, investigation, and enforcement powers (see Chapter 9). This could be done by referencing the Regulatory Powers (Standard Provisions) Act 2014 (Cwlth) and providing necessary additional powers.
• amendments to align the Act with Australia’s international obligations in relation to the protection of migratory species under the Bonn Convention and permits for wildlife trade to meet Australia’s obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (see Chapter 4).

3.4.2 - Simplify the law

Simplifying the legislation should follow the establishment of the proposed reforms to the regulatory system identified in this report (see Chapter 6). This includes the development of National Environmental Standards, regional planning, and improved data, information, and monitoring. This will ensure the legislation is developed in a way that supports the desired approach, rather than acting against it.

In the long-term, comprehensive redrafting of the EPBC Act (or related Acts) is required. Redrafting should be framed around core principles for legislative drafting. For example, the Fair Work Act 2009 was drafted using principles including⁶⁶:

• Policy simplification (where possible) should be carried out first.
• Material of most relevance to the reader should be placed upfront.
• Important concepts should be clearly defined.
• Language and sentence structure should follow guidance to reduce complexity.
• The overall structure of legislation and its provisions should be carefully constructed for readability.
• Only necessary detail should be included, and detail should be in the right place.

Plain English guidance material should also accompany legislation to aid interpretation and use and should be easily accessible and updated regularly.

3.4.3 - Split the EPBC Act into logical categories

When simplifying the legislation, it may be prudent to consider dividing the EPBC Act (or redo how the parts of the Act are separated and relate to each other) along functional or operational lines by creating separate legislation for some or all of the Act’s functions:

• biodiversity and ecosystem management, to regulate the recovery of natural systems and nationally important biota (via national standards and regional planning)
• environment and heritage protection, to regulate EIA decision-making in relation to MNES
• wildlife trade restrictions to meet international obligations
• protected areas management, to regulate Commonwealth reserves and heritage places and to administer Commonwealth reserves
• environmental data and reporting, to administer data coordination, and national and international reporting
• institutional arrangements, including those for monitoring, compliance, enforcement and assurance
• national biodiversity markets.

Any legislatively separate areas should be clearly integrated by:

• requiring decision-making across relevant Acts to accord with regional planning requirements and national standards
• ensuring consistent data and reporting requirements, in line with proposed reforms for the monitoring, evaluation and reporting of the national system for environmental management.