Interim Report

Summary points

June 2020

Australia’s natural environment and iconic places are in an overall state of decline and are under increasing threat. The current environmental trajectory is unsustainable.

The construct of Australia’s federation means that the management of the environment is a shared responsibility and jurisdictions need to work effectively together, and in partnership with the community.

The EPBC Act is ineffective. It does not enable the Commonwealth to play its role in protecting and conserving environmental matters that are important for the nation. It is not fit to address current or future environmental challenges.

Fundamental reform of national environmental law is required, and new, legally enforceable National Environmental Standards should be the foundation. Standards should be granular and measurable, providing flexibility for development, without compromising environmental sustainability.

National Environmental Standards should be regulatory instruments. The Commonwealth should make National Environmental Standards, in consultation with stakeholders, including the states and territories. The law must require the Standards to be applied, unless the decision-maker can demonstrate that the public interest and the national interest is best served otherwise.

Precise, quantitative standards, underpinned by quality data and information, will support faster and lower-cost assessments and approvals, including the capacity to automate consideration and approval of low-risk proposals.

The EPBC Act has failed to fulfil its objectives as they relate to Indigenous Australians. Indigenous Australians’ traditional knowledge and views are not fully valued in decision-making, and the Act does not meet the aspirations of Traditional Owners for managing their land. A specific Standard for best practice Indigenous engagement is needed to ensure that Indigenous Australians that speak for, and have traditional knowledge of, Country have had the proper opportunity to contribute to decision-making.

Indigenous Australians seek, and are entitled to expect, stronger national-level protection of their cultural heritage. The suite of national-level laws that protect Indigenous cultural heritage in Australia needs comprehensive review. Cultural heritage protections must work effectively with the development assessment and approval processes of the EPBC Act.

Duplication exists between the EPBC Act and state and territory regulatory frameworks for development assessment and approval. Efforts have been made to harmonise and streamline with the states and territories, but these efforts have not gone far enough.

The proposed National Environmental Standards provide a clear pathway for greater devolution. Legally enforceable Standards, transparent accreditation of state and territory arrangements, and strong assurance are essential to provide community confidence in devolved arrangements. Greater devolution will deliver more streamlined regulation for business, while ensuring that environmental outcomes in the national interest are being achieved.

The community does not trust the EPBC Act to deliver effective protection of the environment and industry view it as cumbersome, duplicative and slow. Legal review is used to discover information and object to a decision, rather than to test and improve decision-making consistent with the law. Reforms should focus on improving transparency of decision-making to reduce the need to resort to court processes to discover information. Legal challenges should be limited to matters of outcome, not process, to reduce litigation that does not have a material impact on the outcome.

Decision-makers, proponents and the community do not have access to the best available data, information and knowledge. There is no single national source of truth that people can rely on. This adds cost for business and government, as they collect and recollect the information they need.

A national ‘supply chain’ of information is required so that the right information is delivered at the right time to those who need it. A transparent supply chain will build community confidence that decisions are made on comprehensive information and knowledge, and that decisions are contributing to intended outcomes.

A quantum shift is required in the quality of information, accessible data and information available to decision-makers so that decision-makers can comprehensively consider the environmental, economic, social and cultural factors. To apply granular standards to decision-making, stakeholders need the capability to better model the environment, including the probability of outcomes from proposals. To do this well, investment is required to improve knowledge of how ecosystems operate and develop the capability to model them.

Given the state of decline of Australia’s environment, restoration is required to enable future development to be sustainable. Available habitat needs to grow to be able to support both development and a healthy environment. The EPBC Act should require proponents to exhaust all reasonable options to avoid or mitigate impacts on the environment. Where this is not feasible, the remaining impacts of the development should be offset in a way that restores the environment.

The current collaborative approach to monitoring, compliance, enforcement and assurance is too weak. Serious enforcement actions are rarely used, indicating a limited regard for the benefits of using the full force of the law where it is warranted. When they are issued, penalties are not commensurate with the harm of damaging a public good of national interest. They do not provide an adequate deterrent.

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. The regulator should be responsible for monitoring compliance, enforcement and assurance. It should be properly resourced and have available to it a full toolkit of powers.

The operation of the EPBC Act is ineffective and inefficient. Reform is long overdue. It is impossible for the Review to satisfy the aspirations of every person with an interest in the environment or in business development. The proposed reforms provide a way forward that seeks to build community trust that the national environmental laws deliver effective protections, while regulating businesses efficiently. The Act in its current form achieves neither.

The proposed reforms are substantial, but the changes are necessary to set Australia on a path of ecologically sustainable development. This path will deliver long-term economic growth, environmental improvement and the effective protection of Australia’s iconic places and heritage for the benefit of current and future generations.

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