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

9.1.1 - The Department has a weak collaborative approach to monitoring, compliance, enforcement and assurance

The Department has improved its regulatory compliance and enforcement functions in recent years but it does not have a strong compliance culture. Progress has included the establishment of a dedicated Office of Compliance, the development of a regulatory framework and new compliance policies that identify priority areas for focus.

While these were small steps forward, the foundations of the Department’s regulatory posture focus heavily on supporting a voluntary approach to compliance. The Department has positioned itself as a collaborative regulator, working to reach agreement with the regulated community.

The Department’s compliance policy describes its approach as ‘fair, reasonable, respectful, reliable’¹³⁰. This stance comes from good intentions of recognising that the majority work to be compliant. However, it is a passive approach that has contributed to a culture that has limited regard for the benefits of using the full force of the law where it is warranted.

There is limited evidence of proactive compliance effort, and the compliance posture of the Department is reactionary. Enforcement efforts often rely on a tip off from the public, rather than active surveillance driving enforcement activities. There is little active monitoring to provide assurance that conditions of approval are being met. Assurance to confirm that environmental offsets have been secured and are delivering intended outcomes is limited (see Chapter 8). There are insufficient resources dedicated to proactive compliance.

9.1.2 - Monitoring, compliance and enforcement options are limited and under-utilised

Enforcement provisions are rarely applied, particularly to Part 3 activities (requirements for environmental approvals), and the penalties do not appear commensurate with the harm of damaging a public good of national interest.

Serious enforcement actions are rarely used. There have only been 41 breaches of the EPBC Act that have been subject to compliance outcomes¹³¹. Of these, 31 relate to Part 3 or Part 9 with the remainder being breaches of wildlife trade provisions.

The largest penalty issued under the EPBC Act was via an enforceable undertaking with a company to regenerate 31.5 hectares of Central Hunter Valley Eucalypt Forest Woodland for a cost of $2.1 million. While a suspended jail sentence has been handed down for failure to refer an activity for consideration under the Act, from the evidence available to the Review to date, a jail sentence has not been applied for a breach of a condition of approval.

Since 2010, a total of 22 infringements have been issued by the regulator for breaches of conditions of approval granted under Part 9, with total fines less than $230,000. By way of contrast, local governments often issue more than this amount in paid parking fines annually. For example, Dubbo and Orange Councils in NSW respectively issued more than $220,000 and $1.15 million in parking fines in the 2018–19 financial year¹³².

While provisions are not fully utilised, the regulator is also impeded by some limitations in the powers at their disposal. The EPBC Act provides an incomplete and inconsistent set of regulatory tools that are spread across different parts of the Act. Some enforcement mechanisms apply only to specific contraventions of the Act. The Act lacks contemporary powers needed to monitor and address breaches of the law. This includes powers for information sharing and tracking.

This can also lead to inefficient and mismatched pathways being taken. For example, the ability to issue an infringement notice under the EPBC Act is limited to instances where a breach of approval conditions has occurred. If a person cleared a protected habitat and wasn’t an approval holder, the regulator is limited to pursuing court or other actions even where a fine might be the most direct and appropriate way to respond.

9.1.3 - Inadequate transparency of monitoring, compliance, enforcement and assurance functions

The transparency of monitoring, compliance and enforcement under the EPBC Act, including proactive communication with the regulated community, is limited.

Monitoring, compliance, enforcement and assurance reporting is limited to Departmental annual reports. Some activities are reported online, but the lack of a mandatory requirement to do so under the EPBC Act results in incomplete reporting and the use of different approaches over time.

Submissions received by the Review indicate that the lack of transparency of current compliance arrangements is contributing to low public trust that appropriate action is taken. In the absence of that line-of-sight, submitters to the Review highlighted their view that compliance actions may be subject to political interference.

Most modern regulators have clear logs that include investigation of potential breaches and comprehensively list even minor notices that have been issued. The lack of thorough reporting for the EPBC Act makes it hard to find information. This fails to provide any disincentive to others not to breach the Act or clear assurance to the community that matters are followed-up.