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Joint management arrangements are in place for 3 parks – Kakadu, Uluṟu-Kata Tjuṯa and Booderee. In these areas, Traditional Owners lease their land to the Director of National Parks (DNP). The legal settings in the EPBC Act have created an unbalanced power relationship. This imbalance has resulted in longstanding tensions between the joint boards of management and the Director of National Parks. Traditional Owners of jointly managed parks have expressed their aspiration to have more responsibility and control over the management of their land and waters. The Commonwealth Government, through the Director of National Parks, should immediately commit to working with Traditional Owners to co-design reforms for joint management, including policy, governance and transition arrangements.

The EPBC Act is complex leading to. confusion and inconsistent decision-making. 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 original ambition of the Act for a comprehensive framework – one that combined 5 pieces of legislation into one – has not been realised. The complexity of the Act is compounded by the way it overlaps and interacts with sometimes equally complex State and Territory regulatory arrangements.

The EPBC Act uses overly prescriptive processes. The effort of the regulator and the proponent is often focused on completing the process quickly rather than achieving the outcome intended. This is most visible for environmental impact assessment.

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. Definitions of terms, processes and outcomes set out in the Act do not always align or operate in conjunction with other legislation. The Act was drafted 20 years ago and does not meet current, best-practice legislative drafting. There is a general need to remove duplication, apply consistency and simplify the law where possible.

Legislative amendments to the EPBC Act are recommended to address known inconsistencies, gaps, and conflicts in the Act. Simplifying the legislation should follow the implementation of recommended reforms to the regulatory system. It may be prudent to consider dividing the Act along functional or operational lines. The reforms recommended by the Review, particularly those related to the hardwiring of the requirement for ecologically sustainable development (ESD), the establishment of National Environmental Standards, and pursuing a regional planning approach, will all reduce the need for complexity in the law. Known improvements to the Act should be made in the short term with longer term changes restructure and simplify the law.

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, including new advisory committees to build confidence decision-makers have access to the best available information. . Current legal standing arrangements should be retained, and legal challenges should be limited to matters of outcome, including through limited merits review.

The EPBC Act is broadly perceived as ineffective at protecting the environment, with a lack of clear outcomes, weak compliance and enforcement, and ineffective environmental monitoring and evaluation driving mistrust. The EPBC Act is not seen as being able to deliver environmental protection through its ordinary operation, so legal challenge on procedural grounds is sometimes used by the community to slow or attempt to stop development. However, the number of public interest challenges has been limited and most of these challenges have been on issues that have a high significance to the community. Third-party enforcement rights are important in the absence of effective and transparent decision-making.

The processes of the EPBC Act limit avenues for community participation in decision-making, restricting avenues for the community 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. Industry perceive the EPBC Act to be cumbersome and prone to unnecessary delay.

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. A comprehensive advisory committee structure should be established to provide confidence that decision-makers have access to the best available information. Extended standing should be retained, and provision should be made for limited merits review ‘on the papers’. These reforms should address the reasons the community chooses legal challenge over other mechanisms by providing the necessary access to the law demanded of modern regulatory practice.

The EPBC Act is duplicative, inefficient and costly for the environment, business and the community. The interaction between Commonwealth and State and Territory laws and regulations leads to duplicative processes. Reforms recommended by the Review provide confidence for the Commonwealth to accredit other parties.

Efforts to harmonise and streamline with the States and Territories have not gone far enough and duplication remains. Assessment bilateral agreements are in place with all 8 jurisdictions. Approval bilateral agreements have never been implemented. Despite efforts, to streamline the Act still duplicates State and Territory processes for development approval.

The National Environmental Standards recommended by this Review provide a legally binding pathway to accredit the regulatory processes or management arrangements of other parties, while at the same time ensuring the aims and objectives of the EPBC Act are achieved. Pursuing greater accreditation is not about the Commonwealth relinquishing its environment protection and biodiversity conservation responsibilities. Rather, the recommended reforms would enable the Commonwealth to meet its obligations more effectively and efficiently.

The EPBC Act seeks to recognise other Commonwealth environmental regulatory and management frameworks that manage environmental impacts, however the interplay between the Act and these other frameworks is complex and onerous. The Review’s recommended National Environmental Standards and accreditation model should be considered for all situations to ensure effective environmental outcomes and to improve efficiency. The regulation of wildlife trade is inflexible and does not always align with international requirements. Amendments are recommended to bring the Act into line with Australia’s international obligations.

The EPBC Act operates in a way that recognises other environmental regulatory and management frameworks regulated by the Commonwealth. The Review considers that the provisions for Regional Forest Agreements are the most unacceptable and require immediate reform. The accreditation model should also be applied to the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) and the Australian Fisheries Management Authority (AFMA) using appropriate legislative amendments, and accreditation of actions by Commonwealth agencies (such as those currently covered by Section 160 of the Act) should occur only where they are consistent with the National Environmental Standards and accreditation model.

The EPBC Act provides protection of the environment from actions undertaken by Commonwealth agencies and actions on Commonwealth land. They require an assessment of the impacts to the ‘whole of the environment’, and there are no clear standards to drive consistency around what must be considered. The Commonwealth should develop a National Environment Standard for actions impacting on Commonwealth land and Commonwealth actions, to provide for a clear and consistent set of rules for whole-of-environment assessments that could also provide a national benchmark for environmental protections more broadly.

The business and information systems that the Department uses for conducting assessments are antiquated and inefficient, and existing Commonwealth cost recovery arrangements are also not sustainable. Commonwealth assessment pathways should be rationalised to enable a risk-based approach to assessments that is proportionate to the level of impact on matters protected by the EPBC Act. Implementation should be supported by providing clear guidance, modern systems and appropriate cost recovery.

The wildlife trade provisions in the EPBC Act are inflexible and do not always align with international obligations. The EPBC Act should be amended to ensure environmental protections are consistent with international obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Convention on the Conservation of Migratory Species (Bonn Convention).. The EPBC Act and EPBC Regulations should be streamlined to reduce regulatory burden on wildlife trade permitting process, enable proportionate compliance and enforcement responses and amended to reduce instances where wildlife trade permitting may be subject to abuse by applicants.

Past attempts to accredit the approval processes of States and Territories have failed due to community concerns that decision-making would be too discretionary and inconsistent with the national obligations and national interest. The new, independent, statutory position of Environment Assurance Commissioner (EAC) should be created to audit and report on performance.

Reducing duplication in development assessment and approval is a sound ambition, and one that governments should continue to pursue. Concerns that states and territories are conflicted, and unable to uphold national obligations and national interest should be addressed. The Commonwealth itself has a patchy history of demonstrating that it makes and enforces decisions according to the law, and in a way that achieves the objects of the EPBC Act. For accreditation to be successful the Australian Parliament and the public need confidence that accredited decision-makers are adhering to the Commonwealth’s regulations and Standards by making correct decisions and properly implementing commitments.