Interim Report

Chapter 9 - Compliance, enforcement and assurance

June 2020

Key points

Monitoring, compliance, enforcement and assurance under the EPBC Act is ineffective. There has been limited activity to enforce the Act over the period of 20-years it has been in effect, and the transparency of what has been done is limited.

The culture of monitoring, compliance, enforcement and assurance is not forceful. This erodes public trust in the ability of the law to deliver environmental outcomes.

There is broad consensus from the regulated community and the experts that advise them that it is not easy to comply with the EPBC Act. Likewise for the Department, the complexity of the Act impedes compliance, enforcement and assurance.

The monitoring, compliance, enforcement and assurance powers in the EPBC Act are outdated. Powers are restrictive and can only be applied in a piecemeal way across different parts of the Act due to the way it is constructed.

Monitoring, compliance, enforcement and assurance activities are significantly under-resourced.

The key reform directions proposed by the Review are:

  • establish a modern, independent regulator responsible for monitoring, compliance, enforcement and assurance to be a strong cop on the beat
  • increase the transparency of activities
  • effectively draw on Standards, simplified law, and better systems to increase compliance and simplify enforcement and assurance
  • shift focus toward assurance of devolved decision-making and monitoring, compliance and enforcement of national strategic plans, regional plans, offsets and regeneration
  • provide the regulator with a full suite of modern regulatory monitoring, compliance, enforcement and assurance tools and adequate funding.

Monitoring, compliance, enforcement and assurance is core to delivering the intent of the EPBC Act. There is little point in putting rules in place if they will not be monitored and if failure to meet them does not result in appropriate compliance and enforcement action.

Strong monitoring, compliance, enforcement and assurance is essential to protecting the environment and building trust that breaches of the EPBC Act will be fairly, proactively and transparently addressed. It is also necessary to protect the integrity of most of the regulated community, who spend time and money to comply with the law. Those that do not play by the rules should face the consequences.

9.1 - Monitoring, compliance, enforcement and assurance approach is not forceful

The current collaborative approach to monitoring, compliance, enforcement and assurance is too weak and there is limited transparency. Serious enforcement actions are rarely used. When they are issued, penalties are not commensurate with the harm of damaging a public good of national interest. This erodes public trust in the ability of the law to deliver environmental outcomes.
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9.2 - Complexity impedes compliance, enforcement and assurance

The complexity of the legislation makes voluntary compliance and the pursuit of enforcement action difficult. The monitoring, compliance, enforcement and assurance powers are outdated and restrictive.
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9.3 - Monitoring, compliance, enforcement and assurance activities are significantly under-resourced

Monitoring, compliance, enforcement and assurance activities are under-resourced. These functions are not supported by cost recovery arrangements.
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9.4 - Proposed key reform directions

A strong, independent cop on the beat is required. An independent compliance and enforcement regulator, that is not subject to actual or implied political direction from the Commonwealth Minister, should be established. It should be properly resourced and have available to it a full toolkit of powers.
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