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Information about the Independent review of the Environment Protection and Biodiversity Conservation Act 1999

WWF updated 15/6/2020

Interim Report

A summary of the Interim Report that sets out the key problems identified by the Reviewer and the key reform directions proposed to address these.

The environment and our iconic places are in decline and under increasing threat. The EPBC Act is ineffective. It is not fit for current or future environmental challenges, such as climate change. New legally enforceable National Environmental Standards should be the centrepiece of fundamental reform. Ecologically sustainable development (ESD) should be the overall outcome the Act seeks to achieve with the current matters of national environmental significance (MNES) the focus. Planning at the national and regional (landscape) scale is needed.

The EPBC Act has failed to fulfil its objectives as they relate to Indigenous Australians The suite of national-level laws that protect Indigenous cultural heritage in Australia needs comprehensive review. Much more needs to be done to respectfully incorporate valuable Traditional Knowledge of Country in how the environment is managed. Reforms should be co-designed with Indigenous Australians.

The EPBC Act heavily prioritises the views of western science, and Indigenous knowledge and views are diluted in the formal provision of advice to decision-makers. This reflects an overall culture of tokenism and symbolism, rather than one of genuine inclusion of Indigenous Australians. The Act is not meeting the aspirations of Traditional Owners for managing their land nor is it (or other legislation) sufficiently protecting Indigenous heritage.

A National Environmental Standard for best-practice Indigenous engagement should be developed through co-designed policy making, alongside a comprehensive review of national-level cultural heritage protections. Changes to statutory advisory committees is proposed to combine Indigenous knowledge and western science. The Act should allow for transition to Traditional owners having more responsibility for managing their land.

The EPBC Act is complex. Complex legislation makes it difficult, time-consuming and expensive for people to understand their legal rights and obligations. In the short-term, legislative amendments to the EPBC Act are required. In the longer-term, comprehensive redrafting of the Act (or a new set of related Acts) is required.

The policy areas covered by the EPBC Act are complex. Having multiple policy functions in the one Act makes it very challenging to understand how these areas operate separately or together. The inter-relationships between the different parts of the Act are often not clear.

The EPBC Act uses overly prescriptive processes. The effort of the regulator and the proponent is often focussed on completing the process quickly rather than achieving the outcome intended.

The EPBC Act does not meet Commonwealth Government best practice guidance on minimising legislative complexity. There is opportunity to remove duplication, apply consistency and simplify the law. The inter-relationships between the EPBC Act and other laws are not clear.

Legislative amendments to the EPBC Act are proposed to address known inconsistencies, gaps, and conflicts in the Act. Simplifying the legislation should follow the implementation of proposed key reforms to the regulatory system. It may be prudent to consider dividing the Act along functional or operational lines.

The community does not trust the EPBC Act to deliver effective protection of the environment and industry view it as cumbersome, duplicative and slow. Reforms should focus on improving transparency of decision-making to reduce the need to resort to court processes to discover information. Adequate time is needed for the community to consider information and respond to it. Legal challenges should be limited to matters of outcome, not process.

The processes of the EPBC Act limit avenues for community participation in decision-making. There are limited avenues in the process to raise concerns. 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. The community seeks information or influence through whatever means possible.

The complexity of the EPBC Act leads to cumbersome processes, which are inefficient and add to regulatory costs without environmental benefit. There are unnecessary process delays for industry. The information used in decision-making is not always consistent or clear. Past decisions are not transparent creating uncertainty.

Improved community participation and consultation can ensure the right information is considered in decision-making. Community confidence and trust could be enhanced by the provision of transparent, independent advice. The proposed reform suggests statutory advisory committee structures in the EPBC Act should be recast. Extended standing should be retained, and provision should be made for limited merits review ‘on the papers’.

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 with a clear custodian and an overhaul of systems is required so that the right information is delivered at the right time to those who need it.

The collection of data and information is fragmented and disparate. There is no single national source of truth that people can rely on. This adds cost for business and government, and results in lower community trust in the process. Valuable data is often ‘locked’ in inaccessible formats, not shared or made available for further use.

There is no clear avenue or expectation for the explicit consideration of Indigenous environmental knowledge, or economic or social information. Cumulative impacts and future threats, such as climate change, are not well considered. The technologies and models to analyse and gain insights from diverse and very large datasets are not broadly used.