Interim Report

Chapter 5 - Trust in the EPBC Act

June 2020

Key points

The community and industry do not trust the EPBC Act and the regulatory system that underpins its implementation. A dominant theme in the 30,000 contributions received by the Review is that many in the community do not trust the Act to deliver for the environment.

The avenues for the community to substantively engage in decision-making are limited. Poor transparency further erodes trust.

The lack of trust is evident in high community interest in development applications, high-profile public campaigns, legal challenges to EPBC Act decisions, and a growing rate of both Freedom of Information (FOI) applications and requests for statements of reasons.

The EPBC Act is not trusted by industry. They generally view it as cumbersome, pointing to duplication, slow decision-making, and legal challenges being used as a tool to delay projects and drive up costs for business (often called ‘lawfare’).

The key reform directions proposed by the Review are:

  • improve community participation in decision-making processes, and the transparency of both the information used and the reasons for decisions
  • provide confidence that decision-makers have access to the best available environmental, cultural, social and economic information
  • amend the settings for legal review. While retaining extended standing, provide for limited merits review for development approvals. Legal challenges should be limited to matters of outcome, not process, to reduce litigation that does not have a material impact on the outcome.

5.1 - The community does not trust that the EPBC Act is delivering for the environment

The processes of the EPBC Act limit avenues for community participation in decision-making. There are limited avenues in the process to raise concerns. The growth in community interest in environmental decisions is indicative of the degree of mistrust. People want to know why decisions are made and want to contribute to decisions that affect them and Australia’s environment. The community seeks information or influence through whatever means possible.
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5.2 - Industry perceives the EPBC Act to be cumbersome and prone to unnecessary delays

The complexity of the EPBC Act leads to cumbersome processes, which are inefficient and add to regulatory costs without environmental benefit. There are unnecessary process delays for industry. The information used in decision-making is not always consistent or clear. Past decisions are not transparent creating uncertainty.
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5.3 - Proposed key reform directions

Improved community participation and consultation can ensure the right information is considered in decision-making. Community confidence and trust could be enhanced by the provision of transparent, independent advice. The proposed reform suggests statutory advisory committee structures in the EPBC Act should be recast. Extended standing should be retained, and provision should be made for limited merits review ‘on the papers’.
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