Interim Report

4.3 - Commonwealth-led assessment processes are inefficient

June 2020

Assessment pathways provided by the EPBC Act are complex, inefficient and not supported by robust systems and processes. There is also duplication between the Act and the activities regulated by other Commonwealth laws and agencies. Strategic assessments and other approaches have resulted in some streamlining, but there are opportunities for further efficiency gains.

4.3.1 - Multiple environmental assessment pathways create unnecessary complexity and inefficiency

When a proposal is referred under the EPBC Act, the Commonwealth Environment Minister determines if an action will, or is likely to have a significant impact. For those proponents where it is clear they will need to be assessed in detail, it creates an additional and time-consuming step in the process.

For some proponents, the lack of clarity on the requirements of the EPBC Act (for example, key terms like 'significant impact') means that they refer proposed actions for legal certainty. More than half of all referrals result in a decision that detailed assessment and approval is not required, or not required as long as it is carried out in a particular manner. Better guidance and clarity upfront on which impacts are acceptable, and those which will require assessment and approval, will enable the referral step to be avoided.

The EPBC Act contains 5 environmental assessment pathways:

  1. Assessment on Referral Information
  2. Preliminary Documentation, with or without further information
  3. Public Environment Report
  4. Environmental Impact Statement
  5. Public Inquiry

Each environmental assessment pathway has its own specific set of requirements, timeframes and processes set out in the EPBC Act. This increases the complexity of the regulatory framework, and the ability of the Department to clearly communicate regulatory requirements (see Chapter 8). The multiple pathways do not result in any additional environmental benefit or significantly change the assessment timeframes for the regulated community.

In practice the Assessment on Referral Information, Public Environment Report and Environmental Impact Statement environmental assessment pathways are rarely used, and the Public Inquiry pathway has never been used (see Table 3).

 Table 3 Percentage of total assessment method decisions, from 2014–15 to 2018–19 92

Assessment approach

Per cent of total assessment method decisions

Accredited Process

25 %

Bilateral Process

12 %

Preliminary Documentation, with further information

58 %

Public Environment Report

2 %

Environmental Impact Statement

2 %

Assessment on Referral Information

1 %

Preliminary Documentation, without further information

1 %

Public Inquiry

0 %

4.3.2 - Systems that support environment impact assessment are inefficient

The business and information systems that the Department uses for conducting assessments are antiquated and inefficient. File management systems used by assessment officers are cumbersome, and information is handled and handled again throughout the process (see Chapter 6). Steps are missed or duplicated, interactions with proponents are not easily recorded, and project tracking is difficult, and often out of date.

There are inefficiencies arising from the way information is received from proponents. To determine if a valid referral has been received, the Department conducts manual checks, rather than a system identifying that a referral isn't valid and not allowing a proponent to submit it. The environmental impact assessment documentation provided by proponents are voluminous and can extend to more than 10,000 pages. These are provided in a form that is not word-searchable and with data that cannot be interrogated.

There are inefficiencies in the Department’s procedures for conducting assessments. Documentation from past decisions are not maintained and are not used to provide guidance to proponents about what they can expect, or to support consistent assessment and decision-making. Relevant projects from past decisions are difficult to identify, and even if found, it is difficult to extract this information in a way that aids decision-making. Where there is deviation from past decisions, this is often not well explained.

4.3.3 - Wildlife trade and permitting functions are unnecessarily prescriptive

The take, trade and movement of wildlife products (including live animals, plants and products) are regulated under Parts 13 and 13A of the EPBC Act. Part 13 includes permits to take, injure or kill protected matters in Commonwealth areas, including in Commonwealth waters. Part 13A is dedicated solely to the international movement of wildlife specimens and gives effect to Australia's obligations as a member of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Convention on the Conservation of Migratory Species (Bonn Convention).

The EPBC Act goes beyond Australia's obligations under these international conventions. For example, the Act requires import permits to be issued for Appendix II CITES listed species, even though the exporting country has already conducted a sustainability assessment. This results in around 2,000 additional permits being issued each year, with costs to individuals, companies and the Department but no appreciable conservation benefit. Similarly, the movement of personal and household effects is overregulated. Australia requires permits for personal low-risk trade items such as tourist souvenirs, exceeding CITES requirements.

Prescription in these parts prevents flexibility and discretion, where this is warranted. Compliance breaches cannot be enforced in a proportionate manner. For example, the Environment Minister must revoke an approval if a condition of a wildlife trade operation is not met, potentially resulting in businesses being shut down for months even for minor breaches.

Settings for the permitting of wildlife trade are inefficient and unnecessarily prescriptive. Long-overdue amendments are required to reduce complexity and regulatory burden, without compromising environmental or international standards.

4.3.4 - Efforts to recognise other environmental management frameworks have led to complexity and overlap

The EPBC Act operates in a way that seeks to recognise other environmental regulatory and management frameworks, including the management of Commonwealth fisheries, Regional Forest Agreements (RFAs), offshore petroleum activities, and frameworks that regulate activities on Commonwealth land. Each of these are explored in this section.

Commonwealth fisheries

The Australian Fisheries Management Authority (AFMA) is responsible for the day-to-day management and compliance of Commonwealth fisheries. Assessments under the EPBC Act are conducted on the environmental performance of all export fisheries (Part 13A Assessments) and all Commonwealth managed fisheries (Part 10 Strategic Assessments). These assessments ensure that, over time, fisheries are managed in an ecologically sustainable way.

EPBC Act assessments of fisheries are conducted against well established guidelines that assess the ecological sustainability of management arrangements93. Lower-risk fisheries are now assessed on a 10 yearly rolling basis. Higher-risk fisheries, including those that interact with protected species such as dolphins, dugongs and sea lions are generally assessed every 3 years.

Parts 13 and 13A of the EPBC Act provide processes to assess impacts to protected marine species (including those protected under the Bonn Convention, see Box 13) and ensure compliance with export controls and international wildlife trade rules. These permitting processes are generally undertaken in parallel for Commonwealth managed fisheries and all export fisheries.

Box 13 - The Bonn Convention

The Convention on the Conservation of Migratory Species (Bonn Convention) provides a global platform for the conservation and sustainable use of migratory animals and their habitats.

Under the Convention, only species listed under Appendix I need be afforded protected status. For species listed under Appendix II, the Convention encourages range states to enter into regional or global agreements to improve these species’ conservation status.

Currently the EPBC Act requires the inclusion as a listed migratory species under the Act of any species listed under either of the Appendices to the Convention, making it an offence to catch, kill, injure, take, or move the species in Commonwealth waters without a permit issued under Part 13.

Listing is automatic and occurs without regard to the species’ conservation status in Australia. For example, for some species included under Appendix II of the Convention, the Australian population is distinct from the global one and is sustainably harvested within Australia. Automatic inclusion under the provisions of the EPBC Act affords such species greater protection than is required under the Convention and is counter to the Convention's intent.

There are opportunities to streamline the multiple assessment and permitting processes needed to undertake commercial fishing operations in Commonwealth waters or jointly managed fisheries. Given the maturity of the fisheries management framework administered by AFMA, the Review is confident that further streamlining can be achieved while maintaining assurance in the outcomes. Opportunities for a more streamlined approach could include refining the process for strategic assessments of individual Commonwealth fisheries or developing specific National Environmental Standards for marine areas and accrediting AFMA’s regulatory framework against these Standards.

Regional Forest Agreements

A Regional Forest Agreement (RFA) is a regional plan, agreed between a state and the Commonwealth for management of native forests. RFAs balance economic, social and environmental demands on forests and seek to deliver ecologically sustainable forest management, certainty of resource access for the forest industry and protection of native forests as part of Australia’s national reserve system.

The Regional Forestry Agreement Act 2002 (RFA Act) is Commonwealth legislation under which RFAs are made. RFAs must have regard to a range of conditions, including those relevant to MNES protected by the EPBC Act, such as endangered species and World Heritage values (see Box 14).

Box 14 - Conditions for RFAs relevant to the EPBC Act

A Regional Forest Agreement must have regard to assessments of the following matters, as they are relevant to the region or regions94

  • environmental values, including old growth, wilderness, endangered species, national estate values and World Heritage values
  • Indigenous heritage values
  • economic values of forested areas and forest industries
  • social values (including community needs)
  • principles of ecologically sustainable management
  • the agreement provides for a comprehensive, adequate and representative reserve system
  • the agreement provides for the ecologically sustainable management and use of forested areas in the region or regions.

The EPBC Act recognises the RFA Act, and additional assessment and approvals are not required for forestry activities conducted in accordance with an RFA (except where forestry operations are in a World Heritage property or a Ramsar wetland). These settings are colloquially referred to as the 'RFA exemption', which is somewhat of a misnomer.

The Review has received submissions from stakeholders concerned that the requirements of the EPBC Act are not sufficiently addressed in RFAs, and that monitoring, compliance, enforcement and assurance activities are inadequate. During the course of this Review, the Federal Court found that an operator had breached the terms of the RFA and would be subject to the ordinary controlling provisions of the Act.

Legal ambiguities in the relationship between the EPBC Act and the RFA Act should be clarified so that the Commonwealth’s interests in protecting the environment interact with the RFA framework in a streamlined way.

Offshore Petroleum

The National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) is the Commonwealth regulator for offshore energy activities in Commonwealth waters. Since 2014 significant streamlining of the environmental regulation of offshore energy activities has been achieved by using a strategic assessment made under Part 10 of the EPBC Act.

The strategic assessment endorsed NOPSEMA's environmental management authorisation process. Activities undertaken in a way that is consistent with the authorisation process do not need to be separately referred, assessed and approved under the EPBC Act.

The current settings for strategic assessments have significant limitations (see Chapter 3), resulting in inflexibility in the streamlining arrangements in place with NOPSEMA. The strategic assessment endorsed NOPSEMA's arrangements that were in place at the time of the agreement. This in effect froze them in time and has invariably stifled continuous improvement and further streamlining where there are opportunities to do so that do not lower environmental protections.

Activities on Commonwealth land

The EPBC Act provides for streamlined assessments with other Commonwealth agencies in relation to airspace, airports, and foreign aid. Section 160 provides an alternative pathway for managing the environmental impacts of projects managed by other Commonwealth agencies (for example, under the Airports Act 1996), based on advice from the Commonwealth Environment Minister.

While a relatively small component of the broader regulatory system, the proposed National Environmental Standards (see Chapter 1) provide further opportunity to streamline processes within the Commonwealth. It is important that conflicts of interest be managed and situations of unconstrained self-regulation be avoided.

Footnotes

[92] Source: Unpublished data, Department of Agriculture, Water and the Environment.

[93] Department of the Environment and Water Resources 2007, 2nd edition of the Guidelines for the Ecologically Sustainable Management of Fisheries.

[94] From the definition of an RFA in the Regional Forest Agreements Act 2002 (Cwlth).

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