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

The EPBC Act is broadly perceived as ineffective at protecting the environment. The lack of clear outcomes (Chapter 1), weak monitoring, compliance, enforcement and assurance (Chapter 9), and ineffective environmental monitoring and evaluation (Chapter 7) drive mistrust.

Limited access to information about decisions and the lack of opportunity to substantively engage in decision-making under the EPBC Act adds to this mistrust. This drives the use of legal review to discover information, rather than its proper purpose to test and improve decision-making.

5.1.1 - Community participation is limited to process—they do not feel heard

The processes of the EPBC Act limit avenues for community participation in decision-making. For example, participation in the process for listing species is largely limited to matters of scientific fact. There is no avenue in the process to raise concerns about the potential social and economic implications of listing additional species or ecological communities.

The experts who lead community engagement processes in environmental impact assessments (EIA) highlight that ‘the levels of community outrage...increasingly reflect a greater community intolerance of proponents who disregard community values…key stakeholders and communities are losing, or have lost, confidence in project development and government approval processes.’⁹⁵

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, especially when they believe those decisions are having negative consequences.

With limited trust in the effectiveness of the EPBC Act and no alternative avenue to participate, the community seeks information or influence through whatever means possible. The formal access options for both business and the community under the current arrangements are:

• FOI applications
• requesting statements of reasons
• judicial review
• merits review for Part 13A wildlife trade permit decisions (noting that merits review is not available for EIA decisions)
• public comment processes.

5.1.2 - There is little transparency of information and advice provided to decision-makers and how it is considered in decisions

A key theme in submissions is the lack of transparency of how information is collected and incorporated into decision-making processes. The public don’t trust claims made by advocates or governments on the costs or benefits of a proposal, and they don’t trust the effectiveness of compliance and enforcement activities. There are concerns that proponents themselves commission environmental consultants in the EIA process, but there are no professional standards or accreditation for these consultants, which further erodes trust in decision-making.

Low transparency and a lack of early public engagement by some proponents means that it is often late in decision-making processes that community concerns are heightened, such as when a specific development application is being considered. This is the most likely point they will engage with the project impacts and the process.

Poor transparency encourages challenges to decisions. The growth in FOI requests is indicative of the degree of mistrust and the perceived lack of transparency and accountability for decision-makers. People cannot understand how decisions to approve developments can be consistent with the laws that protect the environment, if overall environmental indicators are trending down.

This lack of visibility is exacerbated by the complexity of the EPBC Act and limitations in both the scope and transparency of information used for decision-making, and to ensure compliance with the Act. There is a growing trend of post-approval arrangements, where specific environmental impacts and treatments are considered when proponent management plans are assessed. This happens without the opportunity for public comment.

The community also cannot see how allegations of non-compliance with the EPBC Act are investigated and resolved.

The EPBC Act and its processes focus on the provision of environmental information, yet the Minister can and must consider social and economic factors when making many decisions. The community can’t see how these factors are weighed in Act decisions under the current arrangements. There is no requirement for proponents to give fulsome information in relation to social and economic impacts of a project proposal, nor is there scope for the assessment process to test the veracity of that information.

The social and economic benefits and costs put forward by proponents are at the project scale, meaning that decision-making is not based on a complete nationally focused economic or social analysis. The trade-offs and considerations of decision-makers are not explicit, often happening behind closed doors. This gives rise to allegations that proponents have undue influence on decision-makers and the environment loses out to other considerations.

The advice provided to support decisions is not always made publicly available. This promulgates concerns over the quality of the advice, or that government may have something to hide and shuns accountability for its decisions.

There is a lack of confidence in the quality of the advice provided, and views that decisions are biased towards competing imperatives other than protection of the environment. To resolve this concern, many submissions to this Review have expressed a strong preference for decisions to be made by independent authorities or commissions, rather than democratically elected decision-makers and their delegates.

5.1.3 - High-profile decisions are contested—the community is dissatisfied with environmental outcomes

It is not clear how decisions explicitly contribute to environmental outcomes. Many contributions to the Review raised concerns that decisions made under the EPBC Act are out of step with the views and values of the community.

Where concerns arise about environmental outcomes associated with a decision—and with no other viable alternative for the community—public focus turns to challenging high profile decisions. These challenges can succeed on technical legal grounds rather than on environmental outcomes. For example, there is currently no avenue in the EPBC Act to challenge the merits of EIA decisions; consequently, technical process compliance has become the focus.

In the Shree case⁹⁶, the technicality was a failure to attach documents to a Ministerial decision brief. This legal challenge was on the basis of a failure to fulfil process obligations rather than questioning the outcomes resulting from the decision, which was remade with the same environmental outcome after legal proceedings were completed.

Where used, campaigns, protests and the use of the courts do slow down developments. These delays often result in no material change to the decision. Technical challenges result in delays and costs for industry and the economy with little, if any, benefit to the environment.