LEAN Policy Committee

Submission in response to discussion paper

Some have argued that past changes to the EPBC Act to add new matters of national environmental significance did not go far enough. Others have argued it has extended the regulatory reach of the Commonwealth too far. What do you think?

See LEAN Attachments 1, 2 & 3 for more details Critiques of the current federal environment laws (the EPBC) include: 1. They are too focused on development approvals and not on proactive protection of the environment. 2. They are toothless ? all major indicators of environmental health and sustainability are in decline. 3. They fail to deliver business certainty, with long delays and lack of clarity in approval processes 4. They have no institutional backing to deliver innovation or lead visionary, system-wide policy solutions. 5. They don?t even mention climate change Australia needs new frameworks for truly national protection and management of Australia?s natural resources to enshrine federal leadership in proactive and systemic protection of our environment from threats such as climate change, and to protect the value of heritage sites. The changes required are so fundamental and cannot be achieved by tinkering with the current Act. It will be faster and more effective to scrap the EPBC ? keeping only what is effective - and create a new Act and supporting institutions The insights of the Hawke Review (the last statutory review of the EPBC Act), the work of the Australian Panel of Experts in Environmental Law (APEEL) and the Productivity Commission?s Major Project Development Assessment Processes report, provide clear priorities, principles and recommendations on which to act. The reform needs to deliver: 1. Accountable, transparent Commonwealth leadership and governance on human use of and restoration of the environment 2. New institutions for: 3. Policy leadership and innovation 4. Effective regulation 5. Adequate and effective funding To this end, Australia needs a new Australian Environment Act that; 1 Ensures the knowledge and rights of Aboriginal and Torres Strait Islander peoples are central in environment protection laws, programs and policies; 2. For the purposes of managing matters of national environmental significance, creates strong, well resourced, science based institutions to administer the law: including a federal Environmental Protection Agency to conduct public inquiries, provide transparent and timely advice to the Minister within a clear decision-making framework and enforcement; and ensure there is the capacity in the public service to provide federal leadership on the environment; 3. Implements clear management, governance and decision making structures that are transparent, efficient and streamlined; 4. Improves regulation and streamline environmental assessment processes; Manage Australia's environment fairly and efficiently as a foundation for ecologically, socially and economically sustainable jobs; 5. Protects biodiversity and support resilience in the natural environment; and 6. Directs the Environment Department to establish National Environment Plans that set targets and approaches to proactively protect the environment

How could the principle of Ecologically Sustainable Development (ESD) be better reflected in the EPBC Act? For example, could the consideration of environmental, social and economic factors, which are core components of ESD, be achieved through greater inclusion of cost benefit analysis in decision making?

See LEAN Attachments 1, 2 & 3 for more details Make the new Environment Act have as its fundamental goal: To protect, conserve, restore, and promote sustainable, diverse, resilient human and environmental use of Australia?s natural environment in each of its bioregions, in an accountable and effective manner, and that faces up to the pressures from climate change and population growth. By Australia?s natural environment is meant its: 1. Land and its soils, biological resources, minerals, surface water, groundwater, terrestrial ecosystems and habitats 2. Coasts, and marine areas in its exclusive economic zone, and their sediments, biological resources, minerals, aquatic ecosystems and habitats 3. Air environment That goal enshrines ESD principles

Should the objects of the EPBC Act be more specific?

Yes. See proposed Objects in LEAN Attachment 1 for more details

Should the matters of national environmental significance within the EPBC Act be changed? How?

Yes See LEAN Attachments 1, 2 & 3 for more details, and specifically Attachment 3

Which elements of the EPBC Act should be priorities for reform? For example, should future reforms focus on assessment and approval processes or on biodiversity conservation? Should the Act have proactive mechanisms to enable landholders to protect matters of national environmental significance and biodiversity, removing the need for regulation in the right circumstances?

See the elements proposed in LEAN Attachments 1, 2 & 3

What high level concerns should the review focus on? For example, should there be greater focus on better guidance on the EPBC Act, including clear environmental standards? How effective has the EPBC Act been in achieving its statutory objectives to protect the environment and promote ecologically sustainable development and biodiversity conservation? What have been the economic costs associated with the operation and administration of the EPBC Act?

See the high level concerns and propositions in LEAN Attachments 1, 2 & 3 for more details See also LEAN's perspective of the mutual interdependence of the environment and the economy: https://www.lean.net.au/environment_and_the_economy LEAN's summary of diverse critiques of the EPBC Act: https://d3n8a8pro7vhmx.cloudfront.net/lean/pages/308/attachments/origin…

What additional future trends or supporting evidence should be drawn on to inform the review?

1 The information and advice in the succession of State and National State of the Environment Reports 2. Reputable, peer reviewed evidence-based forecasts of future trends in climate change impacts on the social, economic and environmental fabric of Australia 3. The evidence, findings and recommendations from past statutory reviews of the EPBC Act 4. The evidence on the implementation (or lack thereof) of recommendations from past statutory reviews of the EPBC Act

Should the EPBC Act regulate environmental and heritage outcomes instead of managing prescriptive processes?

See LEAN Attachments 1,2 & 3 to this submission The framework created by the present EPBC Act is flawed, and is not holding States or Territories accountable for the aggregate environmental impacts of the implementation of their Planning and Environment laws and policies. This flawed framework and absence of holding States and Territories to account for the environmental outcomes in their jurisdictions is why the EPBC Act has not done enough to protect the environment, and creates uncertainties. Better outcomes would be achieved with a new Act that established 1. Strategic, forward looking 20-year Regional Environment Strategies with Action Plans (e.g., for bio-regions) with measurable goals for outcomes 2. Clarity of Governance and Environmental Stewardship 3. Mechanisms to use the 5-yearly State of the Environment Report to Review Outcomes and Priorities for Actions 4. Environmental Assessment and Approval and Regulatory processes that are streamlined, transparent, accountable 5, A transparent process (implemented in a tailored fashion via the Regional Environment Strategies and Action Plans) to reduce unproductive duplication in assessment and regulation - for example for deciding which is the one operationally responsible Agency (State or Commonwealth) for the approach and standards for assessment, approvals and regulation - an improved list of Matters of Commonwealth Environmental Interest 6. The Commonwealth providing accountable ?governance? of the approach and standards for assessment, approvals and regulation used

Should the EPBC Act position the Commonwealth to take a stronger role in delivering environmental and heritage outcomes in our federated system? Who should articulate outcomes? Who should provide oversight of the outcomes? How do we know if outcomes are being achieved?

Yes. See LEAN Attachments 1,2 & 3 to this submission The EPBC Act should be replaced with a new Act and associated improved implementation mechanisms The framework created by the present EPBC Act is flawed, and is not holding States or Territories accountable for the aggregate environmental impacts of the implementation of their Planning and Environment laws and policies. This flawed framework and absence of holding States and Territories to account for the environmental outcomes in their jurisdictions is why the EPBC Act has not done enough to protect the environment, and creates uncertainties. Better outcomes would be achieved with a new Act that established 1. Strategic, forward looking 20-year Regional Environment Strategies with Action Plans (e.g., for bio-regions) with measurable goals for outcomes 2. Clarity of Governance and Environmental Stewardship 3. Mechanisms to use the 5-yearly State of the Environment Report to Review Outcomes and Priorities for Actions 4. Environmental Assessment and Approval and Regulatory processes that are streamlined, transparent, accountable 5, A transparent process (implemented in a tailored fashion via the Regional Environment Strategies and Action Plans) to reduce unproductive duplication in assessment and regulation - for example for deciding which is the one operationally responsible Agency (State or Commonwealth) for the approach and standards for assessment, approvals and regulation - an improved list of Matters of Commonwealth Environmental Interest 6. The Commonwealth providing accountable ?governance? of the approach and standards for assessment, approvals and regulation used

Should there be a greater role for national environmental standards in achieving the outcomes the EPBC Act seeks to achieve?

In our federated system should they be prescribed through:

• Non-binding policy and strategies?

• Expansion of targeted standards, similar to the approach to site contamination under the National Environment Protection Council, or water quality in the Great Barrier Reef catchments?

• The development of broad environmental standards with the Commonwealth taking a monitoring and assurance role? Does the information exist to do this?

Yes. See LEAN Attachments 1,2 & 3 to this submission The new Environment Act envisaged by LEAN would create strong, well- and durably- resourced, science based institutions to administer the law, including: 1. As Regulator: a federal Environmental Protection Agency to conduct public inquiries, provide transparent and timely advice to the Minister within a clear decision-making framework and enforcement; 2. As Strategic Planner : an independent body (eg: (Environment Australia - analogous to Infrastructure Australia) to establish, review, update National Environment Plans that set priorities, targets and approaches to proactively protect, conserve, restore, and promote sustainable, diverse, resilient human and environmental use of Australia?s natural environment Within the framework created by the new Act and these two bodies there would be a clear and important role for a national approach to setting environmental standards (and measuring performance against these) that are scientifically appropriate for each bioregion

How can environmental protection and environmental restoration be best achieved together?

• Should the EPBC Act have a greater focus on restoration?

• Should the Act include incentives for proactive environmental protection?

• How will we know if we’re successful?

• How should Indigenous land management practices be incorporated?

Yes. See LEAN Attachments 1,2 & 3 to this submission LEAN envisages that the fundamental goal of the new Environment Act would be To protect, conserve, restore, and promote sustainable, diverse, resilient human and environmental use of Australia?s natural environment in each of its bioregions, in an accountable and effective manner, and that faces up to the pressures from climate change and population growth. By Australia?s natural environment is meant its: 1. Land and its soils, biological resources, minerals, surface water, groundwater, terrestrial ecosystems and habitats 2. Coasts, and marine areas in its exclusive economic zone, and their sediments, biological resources, minerals, aquatic ecosystems and habitats 3. Air environment The Regional Environment Strategies and Action Plans articulated in the answers to the previous questions would provide the incentives for that goal to be achieved. Those areas or regions which made more measurable progress towards the goal would reap economic and social as well as environmental dividends from improvements in their sustainability and climate change resilience. The new Act envisaged by LEAN would make the knowledge and rights of Aboriginal and Torres Strait Islander peoples are central in environment protection laws, programs and policies. This would start by making best use of the ""Voice to Parliament"" in the design and framing of the new Environment Act and its implementation mechanisms

Are heritage management plans and associated incentives sensible mechanisms to improve? How can the EPBC Act adequately represent Indigenous culturally important places? Should protection and management be place-based instead of values based?

See LEAN Attachments 1,2 & 3 to this submission The new Act envisaged by LEAN would make the knowledge and rights of Aboriginal and Torres Strait Islander peoples central in environment protection laws, programs and policies. This would start by making best use of the ""Voice to Parliament"" in the design and framing of the new Environment Act and its implementation mechanisms It would continue by the Regulatory body and the Strategic Planning body (see response to Q10) also making the knowledge and rights of Aboriginal and Torres Strait Islander peoples central in their work. From this would come the culturally appropriate, and effective answers to this Q 12

Should the EPBC Act require the use of strategic assessments to replace case-by-case assessments? Who should lead or participate in strategic assessments?

See LEAN Attachments 1,2 & 3 to this submission The framing of this question assumes the flawed framework of the EPBC Act remains. The new Environment Act and associated implementation mechanisms envisaged by LEAN, would establish federal government leadership of a nationally collaborative governance framework that would have at its core a strategic approach to the achieving better environmental outcomes. This approach would improve the efficiency and effectiveness of regulation, deliver benefit to both the economy and environment. It would provide the means to identify and take opportunities reduce the regulatory costs to businesses and the broader community, while improving environmental outcomes.

Should the matters of national significance be refined to remove duplication of responsibilities between different levels of government? Should states be delegated to deliver EPBC Act outcomes subject to national standards?

Yes, See LEAN Attachments 1,2 & 3 to this submission LEAN's attachments include specific propositions for clearer definition of matters of national environmental interest. However simply refining the matters of national significance in the current EPBC Act would not necessarily produce tangible environmental, social or economic benefits because a) whether benefits would flow would depend on the nature of the refinements. Inappropriate refinements could engender costs not benefits; and b) the evidence from successive national State of the Environment Reports shows that it is the entire framework provided by the current EPBC Act, not just its list of matters of national significance, that is flawed. LEAN's proposals for a new Act and associated implementation mechanisms do envisage that responsibility to achieve environmental outcomes should be delegated as low as is practicable in the hierarchy of federal, state, local governments, project proponents, communities, individuals. However that delegation has to be coupled with transparency of flow information, with accountability for outcomes, and an overarching strategic, planned approach (and including national guidelines and standards) - adequately and reliably resourced. The present EPBC Act does not provide anything like an adequate framework for this. So increased delegation to states under the present EPBC Act could not be guaranteed to deliver desired outcomes

Should low-risk projects receive automatic approval or be exempt in some way? How could data help support this approach? Should a national environmental database be developed? Should all data from environmental impact assessments be made publicly available?

See LEAN Attachments 1,2 & 3 to this submission What constitutes a low risk project? How is that to be defined? Under what legislation? The EPBC Act alone? Under State or Territory Planning and Environmental legislation alone? A collection of so-called "" low risk"" projects can have high environmental impacts cumulatively and over time The current EPBC Act is not framed or designed cannot deal with the strategic planning and environmental issues from the aggregate impact of so called ""low risk projects"" LEAN's proposals provide a strategic approach to address this. With qualified bioregional 20 year environmental plans in place under a national governance framework: 1. These plans would be informed by and guide economic, social, environmental planning within the bioregions 2. State and territory economic, social, planning and environmental legislation and policy frameworks would be adapted to incentivise achievement of the goals in these bioregional plans 3. Projects which could demonstrate how they would contribute to the achievement of the goals in the relevant bioregional plans could have an easier pathway to approval. Those that could not would be rejected at an early stage. The goal posts would be clear from the outset, unlike with the present EPBC Act and how it interfaces with State or Territory planning and environmental legislation

Should the Commonwealth’s regulatory role under the EPBC Act focus on habitat management at a landscape-scale rather than species-specific protections?

See LEAN Attachments 1,2 & 3 to this submission LEAN's proposal for a new Environment Act, and associated implementation mechanisms, under which bioregional 20 year environmental plans would be created, approved and implemented (under national governance) with milestones and interim targets would blend - in ways that suit each bioregion - regulatory requirements for the whole bioregion with requirements for areas within the bio region, with requirements for habitats within areas, and with requirements for species within habitats

Should the EPBC Act be amended to enable broader accreditation of state and territory, local and other processes?

See LEAN Attachments 1,2 & 3 to this submission LEAN's proposal for a new Environment Act, and associated implementation mechanisms, under which bioregional 20 year environmental plans would be created, approved and implemented (under national governance) with milestones and interim targets, provides the means by which state and territory, local and other processes are can be embodied in the approved plans (i.e. vetted as part of the approval process) and used to best advantage

Are there adequate incentives to give the community confidence in self-regulation?

No. See LEAN Attachments 1,2 & 3 to this submission. LEAN's proposal for a new Environment Act, and associated implementation mechanisms, under which bioregional 20 year environmental plans would be created, approved and implemented (under national governance) with milestones and interim targets, would provide a framework for creating and applying suitable criteria, which if met could permit tailored and qualified self regulation which might engender community confidence The EPBC Act cannot do this, for all the reasons articulated in the responses to previous questions and in the LEAN Attachments

How should the EPBC Act support the engagement of Indigenous Australians in environment and heritage management?

• How can we best engage with Indigenous Australians to best understand their needs and potential contributions?

• What mechanisms should be added to the Act to support the role of Indigenous Australians?

LEAN is not qualified to provide a fully informed response to this. However LEAN's proposals for a new Environment Act and the associated improved implementation mechanisms include a requirement that it ensure the knowledge and rights of Aboriginal and Torres Strait Islander peoples are central in environment protection laws, programs and policies. This ""Voice to Parliament"" would provide a powerful way to do this in framing the new Act and implementation mechanisms, and have the new Act set requirements support the engagement of Indigenous Australians in environment and heritage management There would also be other opportunities for a a new Environment Act and the associated improved implementation mechanisms to support the engagement of Indigenous Australians in environment and heritage management in ways superior to those that could be achieved through the EPBC Act. For example: 1. The regulatory and strategic planning bodies envisaged by LEAN should have obligations to engage with Indigenous Australians understand their needs and potential contributions, and to support the role of Indigenous Australians in achieving their goals 2. The creation of the qualifying bioregional 20 year environmental strategies and action plans would also provide opportunities to engage with Indigenous Australians understand their needs and potential contributions, and to support the role of Indigenous Australians in achieving their goals ?

How should community involvement in decision-making under the EPBC Act be improved? For example, should community representation in environmental advisory and decision making bodies be increased?

See LEAN Attachments 1,2 & 3 to this submission The EPBC Act intrinsically cannot provide an effective framework for effective, well-supported, community involvement and trust in the processes that protect, manage and promote the environment and heritage. This is because the EPBC Act only gets triggered when a matter of national environmental significance is encountered. Absent that trigger, the EPBC Act has no role in a State or Territory planning or environmental decisions - and therefore in the community involvement in the making of those decision. However LEAN's proposals for a new Environment Act and the associated improved implementation mechanisms include a requirement that they implement clear management, governance and decision making structures that are transparent, efficient and streamlined LEAN also envisages that the governance of the strategic planning, and regulatory approach that would be established by the new Act and implementation mechanisms must be collaborative. This means the processes and structures of public policy decision making and management must engage people constructively across the boundaries of public agencies, levels of government, and/or the public, private and civic spheres in order to effect stewardship of our natural environment to provide for sustainable environmental, social, cultural and economic wellbeing

What is the priority for reform to governance arrangements? The decision-making structures or the transparency of decisions? Should the decision makers under the EPBC Act be supported by different governance arrangements?

See LEAN Attachments 1,2 & 3 to this submission As will have been inferred from the answers to previous questions, and as is made clear in LEAN's attachments to this submission: 1. There is very high priority for reform to governance arrangements and decision making structures - this is urgent. LEAN makes proposals for that reform 2. There is a clear and urgent need for improved, more effective implementation mechanisms and administrative arrangements to provide adequate and more effective support for decision makers 3. There is also a clear need for decisions to be made in a more transparent and accountable way 4. LEAN proposes that the best way to achieve this is via a new Environment Act and associated implementation mechanisms that are designed from the outset to implement clear management, governance and decision making structures that are transparent, efficient and streamlined

What innovative approaches could the review consider that could efficiently and effectively deliver the intended outcomes of the EPBC Act? What safeguards would be needed?

See LEAN Attachments 1,2 & 3 to this submission LEAN agrees that the the EPBC Act was not designed to consider or promote alternatives, such as ecosystem services markets, alternative financing arrangements, co- or self-regulation, environmental accounting and information and education-based approaches. LEAN also considers that the EPBC Act provides a flawed and unsound framework to support these alternatives. LEAN considers that its proposals for a new Act and associated implementation mechanisms would provide a sound strategic framework within which alternative approaches could be trialled collaboratively and have their performance monitored and evaluated with adequate governance

Should the Commonwealth establish new environmental markets? Should the Commonwealth implement a trust fund for environmental outcomes?

See LEAN Attachments 1,2 & 3 to this submission, Instruments such as new environmental markets or a trust fund will require much more streamlined, accountable strategic planning and regulation of environmental stewardship, with adequate governance of all aspects of that stewardship at every level (Federal, State, Local) it takes place If this is not reliably occurring it will impede the ability of investors to apply due diligence to their decision making and erode or inhibit trust and confidence in the instruments. LEAN considers that the EPBC Act must be replaced by a new Act and associated implementation mechanisms before the circumstances will be right for the creation of new environmental markets or a trust fund. It is suggested that advice be sought from the Productivity Commission on this topic

What do you see are the key opportunities to improve the current system of environmental offsetting under the EPBC Act?

See LEAN Attachments 1,2 & 3 to this submission For offsetting to be effective in a durable way, it needs to form part of a whole of landscape and preferably a whole of bioregion planning and management approach. This means it cannot be made effective under the EPBC Act alone, and the EPBC Act has not been set up to interact with State planning and environmental legislation and processes to enable it to make its offsetting requirements effective in a durable way Offsetting that is piecemeal, with no overarching strategic planning underpinning it cannot be effective in a durable way The key opportunity to improve the current system of environmental offsetting would arise with the creation of a new Environment Act and associated implementation mechanisms - to replace the EPBC Act - as proposed by LEAN

How could private sector and philanthropic investment in the environment be best supported by the EPBC Act?

• Could public sector financing be used to increase these investments?

• What are the benefits, costs or risks with the Commonwealth developing a public investment vehicle to coordinate EPBC Act offset funds?

See LEAN Attachments 1,2 & 3 to this submission See the answers to question 23 and 24.

Do you have suggested improvements to the above principles? How should they be applied during the review and in future reform?

See LEAN Attachments 1,2 & 3 to this submission LEAN suggests: The first of the above principles be modernised and improved to state: Protecting, conserving, restoring, and promoting sustainable, diverse, resilient human and environmental use of Australia?s natural environment in each of its bioregions, in an accountable and effective manner, and that faces up to the pressures from climate change and population growth The principles should be added to, to include: Creating strong, well- and durably- resourced, science based institutions to administer the law, including: 1. As Regulator: a federal Environmental Protection Agency to conduct public inquiries, provide transparent and timely advice to the Minister within a clear decision-making framework and enforcement; 2. As Strategic Planner : an independent body (eg: (Environment Australia - analogous to Infrastructure Australia) to establish, review, update National Environment Plans that set priorities, targets and approaches to proactively protect, conserve, restore, and promote sustainable, diverse, resilient human and environmental use of Australia?s natural environment And also Managing Australia's environment fairly and efficiently as a foundation for ecologically, socially and economically sustainable jobs

Is the EPBC Act delivering what was intended in an efficient and effective manner?

No See LEAN Attachments 1,2 & 3 to this submission Critiques of the current federal environment laws (the EPBC), from diverse sources across the spectrum of civil society & from several statutory reviews, and made over many years since 1999, have much in common. The commonly expressed critiques include: 1. They are too focused on development approvals and not on proactive protection of the environment. 2. They are ineffective ? all major indicators of environmental health and sustainability are in decline. 3. They fail to deliver business certainty, with long delays and lack of clarity in approval processes 4. They have no institutional backing to deliver innovation or lead visionary, system-wide policy solutions. 5. They don?t even mention climate change

How well is the EPBC Act being administered?

Not well - See LEAN Attachments 1,2 & 3 to this submission The criticisms expressed in the answer to Q27 arise from a) the deficiencies in the Act and b) deficiencies in the mechanisms to administer the Act - some of which are a consequence of inadequate, and unreliable resourcing and funding, and some of which are in the design and construction and operation of those mechanisms

Is the EPBC Act sufficient to address future challenges? Why?

No - See LEAN Attachments 1,2 & 3 to this submission The changes required are so fundamental and cannot be achieved by tinkering with the current Act. 1. It will be faster and more effective to scrap the EPBC ? keeping only what is effective - and create a new Act and supporting institutions 2. The insights of the Hawke Review (the last statutory review of the EPBC Act), the work of the Australian Panel of Experts in Environmental Law (APEEL) and the Productivity Commission?s Major Project Development Assessment Processes report, provide clear priorities, principles and recommendations on which to act. 3. The reform needs to deliver: a) Accountable, transparent Commonwealth leadership and governance on human use of and restoration of the environment b) New institutions for i) Policy leadership and innovation; and ii) Effective regulation c) Adequate and effective funding

What are the priority areas for reform?

See LEAN Attachments 1,2 & 3 to this submission and See the answers to Q1 to Q29

What changes are needed to the EPBC Act? Why?

See LEAN Attachments 1,2 & 3 to this submission and See the answers to Q 1 to Q29

Is there anything else of importance to you that you would like the review to consider?

See the full contents of LEAN Attachments 1,2 & 3 to this submission

Attachments

Additional information has been provided as an attachment for this submission. The attachment can be downloaded using the links on the right hand side of this page.