9.2 - Complexity impedes compliance, enforcement and assurance

The EPBC Act is long and complex (see Chapter 3). The complexity of the legislation, impenetrable terminology and the infrequency with which many interact with the law, makes voluntary compliance and the pursuit of enforcement action difficult.

The EPBC Act primarily relies on a self-assessment by proponents to determine whether they are likely to have a significant impact on a nationally protected matter. The Department provides some guidance material to assist with that process but submitters to the Review have highlighted that interpreting the Act remains a challenge due to its size and complexity.

Understanding is further strained where related state and territory-based rules change, generating confusion about how local rules relate to national-level rules. For example, changes to Queensland and NSW land-clearing rules in recent years resulted in confusion about whether activities that could be legally conducted under new state requirements also needed to be considered under the EPBC Act, even though the Act requirements had not changed. For the person impacted by the changed requirements, it didn’t matter whose rules had changed, this just led to a new layer of confusion.

For many Australians, they will never need to interact with the EPBC Act. For some, interaction may be limited to a single circumstance. This contrasts with other broad and complex laws, where frequent interactions mean that the regulated community builds knowledge of their obligations over time. For example, most of the adult population engages with the Income Tax Assessment Act 1997 on an annual basis, and both employees and employers frequently engage with their obligations under employment laws.

The infrequency of interactions with the EPBC Act is further complicated because the circumstances in which the rules apply change each time the lists of the threatened species and ecological communities is added to or amended. Companies of reasonable scale have the capacity to deal with these adjustments, but compliance in this context is particularly difficult for individuals and small landholders. This was highlighted in the Craik Review as a challenge for the agricultural sector¹³³.