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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? 

Our input to this question relates to the consideration of ecosystems including cumulative impacts and biodiversity as a whole beyond individual species. We also provide some specific comments related to Commonwealth Marine Areas.

Systems and species that perform critical roles in the maintenance of ecosystem function can be missed in assessment and planning processes. Impacts on these species and systems can generate flow-on effects through ecological and cultural systems, increasing the cumulative impacts beyond those considered. Focussing only on nationally listed threatened species creates two problems: 1. Poorly studied species may become extinct without ever making it to the threatened species list; 2. We are likely to end up with a very large list of threatened species as our knowledge improves and negative impacts on natural habitats continue.

Consideration of nationally listed species in the EPBC Act needs to be coupled with approaches that consider our biodiversity more broadly. This would help protect rare species that are poorly studied and not yet listed, as well as limit the degree to which the list of nationally threatened species grows due to impacts on presently unlisted species. There is a wide variety of habitat-based scientific assessment approaches for all biodiversity that could be harnessed to achieve this. A mechanism that allows the identification of ecosystems, with appropriate indicators for status and trends would allow proponents to understand the systems in the locations they are working in and to identify avoidance or mitigation techniques that could avoid these impacts.

The Commonwealth Marine Area as a whole is described as a matter of national environmental significance. While this is appropriate as it is a common good, it has made active management of specific Matters of National Environmental Significance difficult within the Commonwealth Marine Area. While Listed Species are also recognised, the systems that support these species, and other ecologically, culturally and economically importance species are not and many of the species that are not listed may be at risk of significant impacts that occur cumulatively through ecosystems with multiple pressures.

Should the objects of the EPBC Act be more specific?

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? 

In this response we provide comments in relation to Ecologically Sustainable Development (ESD) as a principle as well as some considerations of Cost Benefit Analysis.

ESD remains a useful principle; however, the EPBC Act has been ineffective in operationalising the concept because the Act has relatively limited remit when considered against the breadth of natural assets to which the concept of ESD applies. Hence, the EPBC Act so far as it incorporates ESD can only apply it to a subset of environmental assets (i.e. those which fall under the test of national or international significance and largely excludes continuing uses). Furthermore, the consequences for ESD have not been identified clearly in implementation (or the consequences for decision making are unpalatable).

Specific aspects we wish to highlight are:

  • The result of ecologically sustainable development in terms of on-ground outcomes has not been defined and it is not clear.
  • Many decision elements within the Act are process-based and do not specify what they will achieve.

Another important challenge in a rapidly changing future is determining mechanisms that would facilitate the assessment of whether ESD outcomes are met. This includes comparison of the protected values against expected future outcomes in the face of climate change (and potentially other system drivers) rather than under current conditions (as an example, consider the likely effect of the fires over 2019-20 on biodiversity futures). Development decisions need to be considered against these counterfactuals rather than an assumption that current drivers of ESD outcomes will be constant into the future.

Cost Benefit Analysis (CBA) has been, and should remain, one tool to assist in decision making where a range of benefits and costs can be compared using a single monetary metric. However, there are well-known weaknesses in CBA which limit its usefulness in informing environmental decision making including:

  • Estimation of the economic values attached to non-marginal changes (large changes relative to status quo) in outcomes are more difficult. Appropriate estimation techniques can address some aspects of this challenge (such as economy-wide effects of major developments). However, quantification of local effects of major change can be challenging (including both local economy effects and estimation of non-monetary changes).
  • Economic discounting which reduce the perceived impact of distant future events on present values.
  • Ongoing debate about the accuracy of non-monetary methods used to include monetised estimates of some social and environmental outcomes (noting however that well-established protocols have long been used in other settings such as the US legal system).
  • Challenges in incorporating uncertainty (as opposed to risk) into economic costings.

Therefore, caution should be exercised in the use of a single-dimension metric such as CBA in assessing the often conflicting environmental, economic and social outcomes of proposed developments. Nevertheless, economic benefits will need to be considered as part of the mix, and careful use of CBA, including sensitivity testing of key assumptions and uncertainties, will provide a useful source of information.

Finally, we note that trade-offs across environment, social and economic benefits are essentially value based. Scientific methods can help elicit these values but cannot decide what those values should be.

Should the objects of the EPBC Act be more specific? 

See also our responses to Questions 1 and 11. In this response we provide comments about areas lacking in the description of EPBC Act objects:

Indigenous involvement: Indigenous involvement is mentioned in objects (d), (f) and (g) of the Act; however, a clearer integrated statement that responds to Australia’s obligations to relevant and current international and national frameworks and empowers local Indigenous values and decision-making processes for a given environmental area or issue would be of benefit. For example, see discussions around Convention on Biological Diversity Further information in relation to Indigenous knowledge that may assist the review process is provided in the reference list provided in our response to Question 11.

Delisting species: Chapter 5 Part 13, s184 – 188 provide information on how to list, amend or modify listed species, or communities, or revoke the listed status (for example, with new information or the significant recovery of a species or community). Recovering species or communities (i.e. reducing their status or delisting) is one of the desired outcomes of the Act. More focus needs to be given to reassessment of status of listed species and communities and evaluation of recovery activities. This will support better outcomes consistent with the objects of the Act.

Ecosystems recognition: There also needs to be recognition that individual listed species are part of complex habitats, communities and ecosystems – managing/protecting a single species is unlikely to ensure its sustainability unless the system is sustainably managed. This will require the Act to:

  • Define an ecosystem
  • Require a process of identification of an ecosystem in which a species /habitat resides
  • Define indicators/indices and thresholds that may be used for implementing the Act to ensure that actions associated with conservation/management are triggered under the Act.
  • Note that this approach is consistent with objects b) and c) of the Act.

Consideration of impacts to species and ecosystems: Additionally, there must be consideration that efforts to reduce the impacts on a listed/threatened species may have consequences on other species or parts of an ecosystem. For example, in prohibiting the use of a fishing gear (e.g. gill nets) to mitigate risks to a species (e.g. sea lions), other gear (e.g. longline, drop line) may be used. This may result in increased risks around other protected species (e.g. listed species of sharks). This could be accommodated in the Act by an assessment of the impact on other species in an area and the system as a whole (e.g. simple risk assessments). This is consistent with the objects of the Act.

Cumulative impacts: Currently cumulative impacts are poorly assessed at State or Federal levels despite recognition of their importance. Thus managing/regulating/prohibiting single activities are unlikely to ensure sustainability of systems or species. Incorporating and codifying cumulative impact assessents into the Act could be a way of addressing the above issues.

Language: Our specific comments on language used in the Act are:

  • Some language is poorly defined. For example;
  • “protection”, “conservation”, “management”, “use” are used inter-changeably, alone (e.g. (c) - conservation) or in combination ( (ca) protection and conservation).
  • (e) “to assist” – why not, “assist to achieve”?
  • (f) “recognise” – how? What does it mean?

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? 

In this response we provide comments about the rationale for more fully considering cumulative impacts in the assessment process including a case study of how this is addressed in fisheries management, as well as key considerations about other areas for reform in relation to biodiversity protection.

The number of industries interacting with natural systems is continually growing – land and sea. This is seeing potentially accumulating pressures on natural systems. Assessment of the impacts on Matters of National Environmental Significance (MNES) are not assessing the full impact of activities, including their interactions and whether or not they compound, when they may be approaching threshold stress levels and appropriate planning and mitigation actions to avoid unsustainable stress. Current MNES assessments do not consider the cumulative impacts of many pressures in time and space, not do they consider the long term sustainability of uses or potential impacts. The assessment process does not assess whether the total impacts on species or ecosystem structure and function across all activities is sustainable – rather current assessment only considers the impact of each individual activity. This means the health of the natural systems are being put at risk, but it also means that it is impossible for proponents to undertake appropriate planning and mitigation actions (ultimately increasing their costs as they have to act responsively rather than proactively). An increasing body of research is highlighting the ineffectiveness of offsets as they are currently implemented in compensating for the adverse impacts of an action on the environment (e.g. zu Ermgassen et al. 2019, The Role of “No Net Loss” Policies in Conserving Biodiversity Threatened by the Global Infrastructure Boom”, In particular, using ‘averted loss’ in offsetting (i.e. protecting an area of existing habitat) is conceptually flawed, and has led to ongoing habitat loss for MNES species and communities, counter to the objective of the policy.

The development of Harvest Strategies in fisheries has significantly improved the sustainability of stocks Australia wide. Each stock is harvested by a fleet made up of individual operators, similar to the situation where there are multiple activities that might impact on a Threatened, Endangered and Protected (TEP) Species. However, unlike the current assessments under EPBC, fisheries assessments are made on the impact/catch across the whole fishery and the regional ecosystems they sit within (i.e. all operators that catch a species or act with a particular ecosystem). Adopting a similar strategy to Harvest Strategies (monitoring, stock assessment and harvest control rules set within an ecosystem context) would significantly improve the status of any MNES.

Broader application of strategic assessments could also contribute to greater consideration of cumulative effects, though this does not consider how impacts accumulate across the strategic assessment region boundary. It is possible to undertake strategic assessments without rigorously considering cumulative effects, so better harnessing current and best available science, including cumulative effect modelling approaches, would enable more informed and robust decision making. Ideally, these cumulative effects assessments are undertaken in an iterative manner with all relevant proponents and stakeholders, to enable decisions that minimise and mitigate negative impacts. Removing ‘averted loss’ as a possible offset would itself place greater emphasis on the actual impacts that proposed developments have on biodiversity habitat. It would also stimulate much greater effort from proponents to minimise the negative impacts of proposed development, and consider compensatory measures that have a real benefit (not just on paper).

Areas for reform relating to biodiversity protection, as it applies to the EPBC Act could be:

  • Harmonising the definitions of threat status across State and Federal jurisdiction. Currently some States and Territories have threat categories that are not aligned with either the other states or with the Commonwealth and this makes comparison extremely difficult.
  • The EPBC Act somewhat aligns with the international IUCN Red List categories. Improvements could be made by ensuring that the definitions are consistent.
  • Provide dynamic taxonomic support for threatened species lists. The names for species change as our understanding of them increases. Legislation, as a static published document, necessarily enshrines a taxon name at a certain time into attached lists or schedules. This creates difficulties into the future if the taxonomic concept associated with that name changes. Data aggregators, such as the Atlas of Living Australia, would be assisted by having the ability to update the threatened species names lists or schedules.

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? 

Current data requirements and review practices vary between jurisdictions. There is potential for economic gains to be made through standardisation of process and data between different jurisdictions. Economic gains and increased transparency can be realised through decreased evaluation times and effort by utilising modelling technologies; and removal of duplication activities associated with submission to state and Commonwealth jurisdictions. The Atlas of Living Australia has realised impact benefit gains of 3.5: 1 through data standardisation across Australia. Many industries require standardised data for species identification, modelling and decision-making.

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

Most of Australia’s vital ecosystems are managed on lands owned by Indigenous people. Indigenous people face many challenges in managing these lands, including rapidly growing threats causing species extinctions and ecosystem losses. These challenges require Indigenous groups to do more with less — and at a faster pace — in order to sustainably manage high conservation and cultural assets. In the face of such demands, many Indigenous groups are looking to find ethical ways to use technological advances to address some of their most pressing problems—specifically, technology that can work with Indigenous knowledge to find solutions to complex environmental management problems. CSIRO has partnered with Kakadu National Park and Microsoft and National Environmental Science Program (Northern Hub) through the Healthy Country AI project (… and…) and shown how artificial intelligence can be used to enable Indigenous co-managers to optimise adaptive co-learning to improve joint environmental decision-making. Finding ways to expand this approach to other protected areas is critical.

The Atlas of Living Australia identifies digital transformation activities such as artificial intelligence, machine observations (satellite, camera traps etc), sensors and modelling as significant future trends that should inform the review of the EPBC Act. Furthermore the Atlas recommends the review consult the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) and particularly the Global Assessment Summary for Policymakers (see…).

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

The overall aim of the Act is to secure positive outcomes for biodiversity, heritage, and sustainable development and thus it may seem most efficient to directly regulate those outcomes. However, there is a range of reasons why specifically regulating outcomes may not always be possible or even desirable. Biodiversity outcomes in particular are underpinned by many different drivers and processes and this complexity means that regulating outcomes could have the following challenges:

  • Reactivity – protective action might only be triggered once it was clear that outcomes were not achieved, when it’s too late to have the desired effect
  • Attribution – environmental outcomes (positive or negative) may take many decades to be fully realised, making it difficult if not impossible to identify who may be responsible
  • Comprehensive measurement of outcomes – regulating outcomes would require comprehensive measurement, yet outcomes are currently rarely monitored and we often don’t know how to assess them (…)

Instead of directly regulating outcomes, a better approach may be to strengthen the ability to achieve outcomes not just through the legislation itself but also through the associated regulations, guidelines and policies. This kind of approach would include:

Redefine matters of National Environmental Significance so they more directly reflect what we value about the environment and thus the outcomes we want to achieve. Considerable work has already been done to define these values via international efforts including the Intergovernmental Platform on Biodiversity and Ecosystem Services ( as well as the Convention on Biological Diversity and its Aichi targets ( Australia’s Strategy for Nature was created with these types of outcomes in mind and Matters of National Environmental Significance could be linked. Focusing on values is also useful given the ecological changes expected under climate change and thus the need to ensure that desirable outcomes are not defined simply as ‘no change’ (,…,

Include greater provision for regional strategic assessments. For example, the Bioregional Assessments Program ( assessed the potential impacts of coal seam gas and large coal mining developments on surface and ground water and ecosystems or assets that depend on them, at the regional scale. Such regional assessments can be independently facilitated, scientifically informed strategies that are collaboratively agreed with governments and communities which set a plan for protection, restoration and sustainable development. This can be a mechanism for guiding outcomes more proactively, addressing cumulative impacts, managing the inevitable trade-offs, and facilitating innovative mechanisms like natural capital private investment. Ideally, the combination of protection, restoration and sustainable development would be embedded in legislative mechanisms, not just flow-on policies or programs. Australia’s Conservation Management Zones ( and their alignment with Natural Resource Management Regions provide a useful vehicle for regional strategic planning for outcomes.

Update the prescriptive processes. Prescriptive processes themselves can be better designed to align with best-available science about how we think outcomes can be achieved. Program Logic-style conceptual models can synthesise current scientific understanding about how specific actions are expected to lead to particular outcomes (…). Legislation may then focus prescriptively on actions, but with an underlying evidence-based logic about the outcomes they are targeting which can be updated as further evidence becomes available (see next point).

Build the partnerships and information infrastructure to monitor and learn about outcomes. Most monitoring is focused on whether activities were completed as planned rather than on outcomes, and monitoring and analysis that establishes a likely causal relationship between actions and outcomes is particularly lacking. Yet this is the vital information that can update the logics underpinning prescriptive processes (see point above) and move us toward more evidence-based legislation of outcomes. This outcomes-focused approach to monitoring and learning is particularly important given the widespread ecological change expected under climate change and thus the need to be rapidly adaptive in prescriptive processes and actions. Enabling monitoring and learning about outcomes demands a consistent national approach and should be at the centre of any national system for environmental data (i.e. such a system needs to focus on learning about outcomes and supporting rapid adaptive management). It is worthwhile considering how to enable this via legislation, especially since the correct skills will likely require science-policy-practitioner partnerships (…,

Note that these comments also relate to questions 2, 4, 9, 11, 13, 15, 16, 20, 22, 23, and 25.

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

The Act currently accommodates environmental protection and restoration together in a limited manner through the evaluation of impact on Matters of National Environmental Significance. The objects of the Act could be supported by further promoting restoration together with protection as they need to be integrated and often complement each other.

The protection or recovery of a single species often requires the protection and restoration of whole habitats, environments and ecosystems, particularly where a species’ decline is due to habitat loss or degradation. Further, species operate as part of ecosystems, habitats and environments, thus recovering species often involves protecting and restoring habitats, environments and ecosystems. For example, restoring mangroves provides fish nursery areas and increase fisheries production, carbon sequestration, coastal protection and habitat for many listed species. As many listed species require both State and Federal recovery plans, then environmental restoration is an extension of species recovery. Matters of National Environmental Significance (found in shellfish reefs, Kelp forests, Seagrass meadows and coastal saltmarshes) have been identified as declining, and restoration has the ability to reverse that trend.

Given the above, environmental benefits of the EPBC Act would be enhanced by considering restoration of habitats and systems, as well as recovery of species.

Having a greater focus on restoration in the Act could increase the multiple social and economic benefits the environment provides to society (e.g. recreation, wellbeing, tourism, carbon sequestration, water catchment, erosion control/protection, pollination, support of commercial species particularly seafood and products). However, a challenge of restoration is to decide on which state/s to restore the environment to and how to achieve restoration given the complex and dynamic nature of natural environments and their interactions with society. See our response to Question 15 on outcomes.

Some incentives and provisions for proactive environmental protection already exist outside the Act, such as through physical and financial offsets, as well as financial (taxation) incentives for individuals and businesses. Conversely, however, some legislation, such as the Sea Dumping Act (1981), acts to limit restoration of the environment, rather than offering incentives.

Across Australia, Indigenous people are increasingly owning and managing land and sea country. Indigenous-led management is expanding and replacing ‘business as usual approaches’ to sustainable management. Indigenous land and sea management practices and knowledge are already incorporated to some extent to achieve the objects of the Act, but there are opportunities for expanding and strengthening this to not only support the objects of the Act but also other government and community objectives. For example, this could be achieved through the following mechanisms:

Expanding the incorporation of Indigenous values, practices and knowledge in natural resource management plans and operations, such as cultural burning and fire management (…), invasive species control (…) and water management and ensuring strong engagement with Indigenous ranger programs that now work at the forefront of environmental protection and management (…)

A clearer integrated statement – Indigenous involvement is mentioned in objects (d), (f) and (g) of the Act. A clearer integrated statement would be of benefit that responds to Australia’s obligations to relevant and current international and national frameworks [1]. See also our response to Question 3.

Review conservation governance regimes and planning processes – this includes evaluation of the efficacy of formal arrangements (e.g. joint management boards on Commonwealth reserves) as well as Indigenous input into management plans in terms of the level and scope of Indigenous engagement and input into environmental and heritage management decision-making [2].

Recognise the breadth, depth and diversity of Indigenous land and sea management across the nation – Indigenous-led land and sea management has expanded and diversified across Australia and includes landscape burning, threatened species conservation [3], marine management [4], biosecurity surveillance [5] and leading and supporting research [6].

Support Traditional Owners to collaboratively manage areas that are critical to biodiversity conservation – this can be informed mapping analysis that shows the value of Indigenous lands for biodiversity conservation [7], the extent of Indigenous land management for species, carbon and conservation [8] and the species and areas that are of priority for Indigenous communities [9].

Resource and enable (Indigenous and non-Indigenous) environmental managers to identify barriers to, and opportunities for, the involvement of Indigenous knowledge and local people in directing land and sea management which can vary between regions across Australia [10].

Support the diverse connections Indigenous people have with their traditional country and re-introduce Indigenous knowledge and management practices on terms defined by Indigenous peoples through planning [11], management (e.g. cultural landscape burning) [12] and evaluation/ reporting mechanisms [13].

Support knowledge sharing to support environmental decision-making that:

  • recognises the importance of Indigenous relationships to country and the importance of incorporating diversity of knowledge [14]
  • supports the ethical use of new technology (e.g. Artificial Intelligence) to care for threats facing significant species and habitats [15]
  • enables local Indigenous communities to access and contribute knowledge to care for country [16].

Expand fee-for service opportunities for Indigenous ranger groups – to support range of social and economic co-benefits sought by Indigenous communities through partnerships with a range of (government, non-government, corporate and industry) sectors and markets (e.g. carbon mitigation) [17].

[1] For example, refer to discussions around Convention on Biological Diversity

[2] Duncan, T., Villareal-Rosas, J., Carwardine, J., Garnett, S.T., Robinson, C.J. 2018. Influence of environmental governance regimes on the capacity of Indigenous Peoples to participate in conservation management, Parks, 28(2), 87-102.

[3] Leiper, I., Zander, K, Robinson, C, Carwardine, J and S. Garnett. 2018. Current formal contributions of Australian Indigenous peoples to threatened species management and opportunities for the future, Conservation Biology 32, 5, 1038-1047.

[4] Austin, B., Robinson, C, Linconl, G, Mathers, D., Oades, D., Wiggan, A., Bayley, S., King, T., George, K., Mansfield, J. , Melbourne, J., Vigilante, T, Balanggara, Bardi Jawi, Dambimangari, Karajarri, Nyul Nyul Wunambal Gaamera and Yawuru Traditional Owners. 2017. Guidelines for Collaborative Knowledge Work in Kimberley Saltwater Country….


[6] For example see CSIRO Indigenous Futures -

[7] Renwick, A.R., Robinson, C.J. Garnett, S.T., Leiper, I., Possingham, H.P., Carwardine, J. 2017. Mapping Indigenous land management for threatened species conservation. An Australian case-study, PloS One 12(3): e0173876.;…; Garnett, ST, Burgess, ND, Fa, J.E Fernández-Llamazares, A., Molnár, Z, Robinson, C.J., Watson, J.E.M., Zander, K.K. Austin, B., Brondizio, E.S., French Collier, N., Duncan, T., Ellis, E., Geyle, H., Jackson, M., Jonas, H., Malmer, P., McGowan, B., Sivongxay, A., & I. Leiper, 2018. A spatial overview of the global importance of Indigenous lands for conservation, Sustainability Nature, 1, 369-374.

[8] Robinson CJ, Gerrard E, May T, Maclean K. 2014. Australia’s Indigenous Carbon Economy. A National Snapshot. Geographical Research 52(2): 123-132. DOI: 10.1111/1745-5871.12049; Renwick A, Robinson CJ, Martin T, May T, Polglase P, Possingham HP, Carwardine J. 2014. Biodiverse Planting for Carbon and Biodiversity on Indigenous land. PLoS ONE 9(3): e91281. DOI: 10.1371/journal.pone.0091281

[9] Maclean, K., Woodward, E., Jarvis, D., Rowland, D., Rist, P., Turpin, G., Martin, P. and R. Glover (2019). A Strategic Sector Development and Research Priority Framework for the Traditional Owner-led Bush Products Sector in northern Australia CSIRO, Australia; Preuss, K. and Dixon, M. (2012), ‘Looking after country two‐ways’: Insights into Indigenous community‐based conservation from the Southern Tanami. Ecological Management & Restoration, 13: 2-15.

[10] Hill, R., Pert, P, Davies, J., Robinson, C.J., Walsh, F. F Falco-Mammone. 2013. Indigenous land management in Australia. Extent, scope, diversity, barriers and success factors. CSIRO.

[11] Effective cross-cultural conservation planning for significant species – best practice guidelines…

[12] Maclean, K., Robinson, C., and O. Costello (2018) Reporting the benefits of Indigenous cultural fire management. Australia: CSIRO; 2018.

[13] Austin, B.J., C.J. Robinson, J.A. Fitzsimons, M. Sandford, F. McDonald, D. Hinchley, E. Ens, J.M. Macdonald, C. Corrigan, M. Hockings, R. Kennett, H. Hunter-Xenie & S.T. Garnett. 2019. Integrated Measures of Indigenous Land and Sea Management Effectiveness: Challenge and Opportunity for Improved Conservation Partnerships in Australia. Conservation and Society 16(3), 372-84; Jarvis, D., R Hill, R Buissereth, C Moran, L Talbot, R Bullio, C Grant, AP Dale, S Deshong, D Fraser, M Gooch, L Hale, M Mann, G Singleton, L Wren. 2019). Strong peoples-strong country: Indigenous heritage monitoring framework summary report. Great Barrier Reef Marine Park Authority.

[14] Woodward, E., Hill, R., Harkness, P. and R. Archer (Eds) (2020). Our Knowledge Our Way in caring for Country: Indigenous-led approaches to strengthening and sharing our knowledge for land and sea management. Best Practice Guidelines from Australian Experiences. NAILSMA and CSIRO, Australia.


[16] e.g seasonal calenders – see Woodward, E. and P. Marrfurra McTaggart (2019) Co-developing Indigenous seasonal calendars to support ‘healthy Country, healthy people’ outcomes. Global Health Promotion 26(3), 26-34.

[17]; Robinson, CJ., James, G., PJ Whitehead, 2016. Negotiating Indigenous benefits from payment from ecosystem (PES) schemes, Global Environmental Change 28, 21-29.

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

Strategic assessments are landscape scale assessments and unlike project-by-project assessments, which look at individual actions (such as construction and operation of a pipeline or wind farm), they can consider a much broader set of actions. For example, a large urban growth area that will be developed over many years, or a fire management policy across a broad landscape, or the impact coal seam gas and large coal mining developments (see the Bioregional Assessment Program (

Case by case assessments are missing the cumulative impacts of multiple activities and impacts on species and habitats that may not be sustainable. Currently, case-by-case assessments only consider the impact of each individual activity, with no reference to future or previous activities or other activities currently occurring in an area. The impacts on species and habitats often exceeds sustainable levels indicated by increases in the numbers of Listed Species and Communities.

It is appropriate that provision for both strategic assessments and project-by-project assessments continues within the EPBC Act. However, strategic assessments are only sensible in the context of cumulative impacts that become ‘non-marginal’ in the sense that their combined impact is greater than their additive impact (e.g. critical impacts on species populations that are different to the marginal impacts in isolation). Requiring strategic assessments would impose large costs that only sometimes would result in a benefit for decision making.

Strategic assessments should be as inclusive as possible, including community, industry and science in all stages of assessment. They should also be aware of how activities interact, both with natural systems, but also with each other and dependent communities. Strategic assessments could/should also be informed by observed and projected impacts of climate change on habitats and species where this information is available.

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?

Duplication currently exists between Commonwealth and State/Territory levels of government largely because although matters of national significance are identified at the Commonwealth (under the EPBC Act), the large majority occur within State/Territory jurisdictions and are as a result managed to a large extent by State/Territories (with the exception of those that occur in Commonwealth managed parks). Despite some authority being passed from the Commonwealth to States and Territories in relation to assessing activities under the EPBC Act, duplication of responsibilities still occurs. Removing this duplication would benefit the environment and community (and economy) and assist in streamlining assessment, monitoring and evaluation processes.

Note that some of the ‘duplication’ is a result of the Commonwealth signing to international agreements (e.g. CMS, CITES, WHA) and then requiring States to review*, enact and/or enforce these international commitments often without any direct Commonwealth resourcing. This has the potential to result in less than ideal outcomes under the Act.

Duplication across different levels of government remains problematic in the environmental space because some impacts may trigger EPBC while others trigger state requirements. Effective delegation would reduce transaction costs. Nevertheless, there remain substantive inconsistencies across government levels. As an example consider the differential offset rights and obligations: under Commonwealth Government regulations offset responsibilities cannot be legally transferred – the proponent remains legally liable to provide the offset, whereas under most state government programs offsetting arrangements and similar allow for legal separation of the offset obligation from the project proponent. Note also that this separation is a requirement for the crediting approaches operated in some states which further allow for ‘left-over’ benefits from an offset project to be sold to future developments as offsets (whereas the Commonwealth arrangements consider offset projects in entirety).

Delegation to the States and Territories can only occur if adequate, directed resourcing* is provided to enact requirements under the Act, including monitoring the effectiveness of recovery actions. The Commonwealth needs to maintain oversight of actions under the EPBC Act, evaluated by the against agreed targets.

There are likely to be circumstances where delegation to Traditional Owners may be an effective option for supporting outcomes under the Act. For example, Traditional Owners on-country in Northern Western Australia (i.e. remote) could be most effective at ensuring the application of aspects of the EPBC Act, consistent with Native Title Act 1993 and similar State and Territory Acts. This may be in conjunction with State or Territory Park Managers.

It is noted that there are efficiency dividends associated with standardisation of data to streamline processes. For example, a single, national Threatened Species list from which subsets of each State and Territory are drawn would provide ease of assessment across borders. Currently, each State and Territory manages its own list, and has its own Act, in addition to the EPBC list and the international IUCN Red List. The definitions of what constitutes an ‘endangered’ species is not consistent between jurisdictions.

*We note that the GST is not directed to these actions administered by the Commonwealth and a State’s GST share varies among years. As such, GST payments to a State or Territory cannot be guaranteed to support activities under the EPBC Act.

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?

There are several concerns and challenges to applying automatic approvals or exemptions to low-risk projects, including:

  • The cumulative impact of several/many low-risk projects may collectively be higher than a single medium- or high-risk project. Similarly, there is potential for ‘gaming’ by, for example, separating a single medium- or high-risk proposal into several smaller proposals, each of which is considered individually to be low-risk.
  • The potential for conflicts or inconsistencies with bilateral arrangements, for example different views of risk and threatened species across jurisdictions or ecosystems.
  • Uncertainty in the evidence or assessment used to make automatic approvals.

A national environmental data system could assist with achieving the objects of the Act by improving the coverage, quality and accessibility of data, thereby reducing costs related to data access for impact assessment and reducing uncertainty in regulatory and management decisions. This is particularly the case regarding species and ecosystems that cross borders

A national environmental data system would best be a distributed architecture, integrating and expanding on existing databases and data aggregation facilities, rather than a single database per se. For example, The Atlas of Living Australia (ALA) already provides a national, aggregated dataset of species occurrence data. This dataset of close to 90 million records is provided with fully open licenses so that the data can be used freely to underpin the methodology and design of environmental impact assessment work. The ALA has a return of investment ratio of 3.5: 1 and serves over 50,000 users.

Such a national data system should also:

  • leverage existing investment (e.g. NCRIS)
  • be developed using consistent global approaches to standards and protocols.
  • clarify how data is used for evidence of risk in risk assessment and response. Automated AI and decision support systems are still a long way from being able to adequately assess environmental risk from data, and ecological data is very difficult to codify.

However, there is also a significant challenge in that the concept of a ‘national database’ is potentially problematic as the ‘data’ this would contain would be both heterogeneous and specific in respect of time and space, and these characteristics would be likely to render classification intractable.

There are several considerations in making data from environmental impact assessments publicly available.

Benefits could include:

  • Improved efficiency and effectiveness, by speeding up time to approval, reducing costs and time by avoiding duplication of data collection, and including critical data otherwise missed from assessments. For example, large scale strategic assessments such as Bioregional Assessments ( lower costs for everyone.
  • Improved social licence and public trust in decision making
  • Improved decision making that is in the public interest
  • Increased value to researchers and land management activities outside the remit of the Act.

Considerations include:

  • Data can be considered sensitive and protected from distribution for several reasons, such as the location of threatened species, privacy and commercial-in-confidence. This can be managed as an exception to a default position of open data (e.g. ALA approaches), including through embargo periods and generalisation of location data.
  • Any data should be supplied as machine-readable, structured data (not unstructured such as PDF). Existing example efforts include WA biodiversity data work.
  • A national environmental data system (effectively integrated with State databases) would likely reduce costs of project assessment noting it would also be costly to develop.

The development of the IBSA system in Western Australia ( provides an example mode for managing records of assessments undertaken.

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

See response to Question 15. As a general observation it is important that there is adequate transparency alongside avoiding perverse incentives in such processes. For example, self-assessment of the presence / absence of EPBC listed species is likely to be considered problematic by the community unless there are very strong checks and balances in place. The community will (rightly) perceive that proponents have an interest in minimising the environmental impacts identified in order to enhance the prospect of approval and reduce the costs of development. A strong and transparent quality assurance regime would support public confidence in self-regulation but this may be challenging where such obvious conflicts of interest are present such as major developments in sensitive environments. A risk-based approach to considering the benefits, risks and costs of self-regulation is encouraged.

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?

See also our response to Question 11.

The Atlas of Living Australia (ALA) has actively engaged with Indigenous Australians through several projects and we acknowledge and respect the deep knowledge and understanding that Indigenous Australians bring to the management of country and environment.

Projects in which Indigenous Australians and the ALA work in partnership include:

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?

Citizen science is active around Australia, with many Australians involved in data collection, monitoring, active management, restoration and rehabilitation projects. The key points we wish to highlight in relation to citizen science are:

  • The peak body for citizen science in Australia is the Australian Citizen Science Association (ACSA)
  • There may be benefits in the further representation of community in advisory and decision-making roles. Community groups, such as those supported by citizen scientists are active in understanding and managing their local environment and can provide a perspective that may be lost when the focus of decision-making activities is very remote from community concerns.
  • Providing open data and assessments has been shown to encourage participation and representation from the community.
  • Advanced digital tools can help in visualising and communicating decision, data and modelling undertaken in decision making.

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?

Currently many decisions under the EPBC Act are based on process – they are required actions. However, there is rarely any assessment of whether those decisions achieve their intended outcomes. In addition, desired environmental and social outcomes are not well described under the act or in policy. Management decisions made under the Act may not be effective at achieving the intended outcome for the system in question nor any broader desired outcomes for the Australian community. Implementation of Outcomes Based Decision Making would assist in delivering sustainable environmental and social benefits to the Australian community. Fisheries Harvest Strategies are examples of outcomes based decision making that has been demonstrated to be effective. Implementation of an outcomes focus would improve decision making and allow identification of incorrect and inefficient decisions and policies to be identified early and changed.

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

We provide some observations in relation to environmental markets that may help to inform the review process:

The use of biodiversity offsets represents the establishment of an environmental market. Biodiversity offset markets differ in non-trivial ways across Australian jurisdictions. There may be benefits from a more consistent approach (which may allow inter-operability in some settings). Benefits from a more unified approach are not guaranteed because market design and implementation is costly and many biodiversity offset trades are once-off with no repeat transactions across which to spread design costs.

Well-functioning environmental markets need care and attention to design to minimise transaction costs, risks and ensure the desired outcomes are delivered. For example:

  • Market demand in environmental markets is usually created via a ‘cap’ or a ‘baseline’. In the case of biodiversity, the ‘baseline’ is leaky as a range of continuing activities are not included or exempt. Hence, the market is incomplete and ongoing biodiversity loss can be expected.
  • Market supply in environmental markets can be complex (such as in measuring ‘additionality’ or the gains able to be traded) and time delayed (a well-known challenge in biodiversity markets).
  • Effective markets also require sound compliance and enforcement tools and processes, which are often challenged by the same complexities and institutional issues as regulatory approaches.
  • Nevertheless, markets do offer the opportunity for both positive and negative incentives to be applied in managing environmental outcomes which is usually not the case within regulatory approaches (limited to penalty approaches).

Regarding a trust fund for environmental outcomes: we assume this relates to an ‘over the counter’ or ‘in lieu’ payment for offsets (biodiversity and water quality) as opposed to the current ‘proponent offset delivery’ model. CSIRO research and advice in other settings indicates there are opportunities and risks associated with an offset trust fund. An offset trust fund is already in operation for Great Barrier Reef related water quality offsets under the EPBC Act. Offset trust funds may substantively reduce offset costs for smaller projects and proponents (who would likely face large and potentially prohibitive costs in generating offsets). More focused investment and consolidated investments provide an opportunity to ensure offsets are generated at scale and are more effectively managed. Finally, trust fund approaches provide a vehicle for ensuring appropriate financial incentives are retained for future management of offsets (usually through separation of up-front payment for opportunity and restoration costs and an on-going payment relating to maintenance).

Use of trust fund (or ‘over-the-counter’) approaches are not without risks including:

  • Price risk (setting prices too low to deliver the required offsets) leaving governments with either a financial obligation (to deliver) or the public with a loss of biodiversity.
  • Delivery risk is shifted from the proponent to governments (noting that in many instances governments are likely to devolve offset projects to third parties to implement).
  • Trust approaches may facilitate more strategic use of other compensatory measures than direct like-for-like measures but at the risk of funds being diverted into ineffectual activities that do not represent appropriate ‘additionality’.
  • Public perception – such as private business responsibilities being too easily passed on to government.

There are also hybrid approaches (such as that employed by the Victorian State Government) that support offset markets through accessible exchanges or marketplaces and hosting biodiversity offset auctions.

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

We provide the following key points noting that offsetting is a policy under the EPBC Act and is not specifically legislated in the Act:

A public offset register would enhance public trust and transparency in biodiversity offsetting arrangements. Ideally such a register would cover all levels of biodiversity offsetting across Australia.

Encouraging provision of offsets under state approaches is likely to reduce transaction costs and improve market liquidity but would require clarity and ease of interoperability across schemes (noting that the national lens does mean that state approaches may not be equipped to incorporate EPBC offsets).

The use of Strategic Assessments such as the western Sydney, Northwest Melbourne, Pilbara etc. is challenging yet likely to improve overall outcomes and may support offset market development where there are extensive development pressures.

The current operation of the EPBC Act Environmental Offsets Policy does not support crediting (or the unitisation of largescale offset projects into tradeable units). This can be argued have both positive and negative consequences for an offset market such as:

  • Positives: As offsets are comprehensive (there are no leftover ‘credits’) there is no need for a credit registry nor are there legacy credits which are unlikely to ever be traded. This is an advantage for geographically or otherwise isolated projects (single offset package acquits the offset requirement with no redundant remaining). Furthermore, a project scale package offset approach avoids the design cost associated with a comprehensive credit market. (Note also that conversion to a credit-oriented approach would likely require adjustments to the metric or measure of equivalency in use).
  • Negatives: where there are likely to be multiple trades there are lower incentives for offset providers to develop large scale, advance offset projects (offset banks) with the intention of supplying multiple projects over time. Similarly, where there are ‘stacked’ offsets which may apply to different projects they are difficult to separate leading to increased cost of offset provision.

Proponent liability (also known as ‘buyer liability’ in US settings) has the good intention of ensuring that the legal entity responsible for development remains liable for the offset (with the corresponding legal simplicity of a single point of contact for offset compliance). However, from a market perspective inseparable proponent liability is problematic because:

  • Proponents are often ill-equipped and poorly incentivised to design and maintain offsets into the longer term (note the problem with shell or holding companies being left with offset liabilities after developments are complete).
  • Compliance and monitoring of devolved offset arrangements are complicated by the need to engage with both proponents (who remain liable) and third party contracted offset providers.
  • It is inconsistent with the development of offset markets across NSW, Victoria and Queensland leading to both institutional difficulty in offsetting across jurisdictions (potentially for single projects) and challenges in practical market development.

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

See previous responses.

What are the priority areas for reform? - What are the priority areas for reform?

See response to Question 5.

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

Refer to attached Cover Letter.


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