Alison Mellor

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?

Evidence of the declining health of the Australian environment and its biodiversity shown in the State of Environment report 2016, and the ongoing changes to the Australian climate in response to climate change detailed in the 2018 State of the Climate report, reflect that the regulatory reach of the Commonwealth has failed to go far enough in supporting the environmental objectives of the EPBC Act.
In this context, matters deemed to be of national environmental significance should continue to strengthened and expanded. To ensure the most pressing environmental challenges are adequately addressed, matter of national environmental significance should include six new and expanded triggers:
1. Ecosystems of National Importance (including High Conservation Value Vegetation, Key Biodiversity Areas and wetlands of national importance);
2. the National Reserve System (terrestrial and marine protected areas);
3. vulnerable ecological communities (alongside other threatened species and ecological communities);
4. significant land-clearing activities;
5. significant greenhouse gas emissions; and
6. significant water resources (expanded beyond coal and gas impacts).

Should the objects of the EPBC Act be more specific?

Yes, the objectives of the EPBC Act should be made more specific. Rather than including 8 main objectives, for clarity the EPBC Act should establish one overarching primary objective focused on the conservation and protection of Australia’s environment. This could be for example ‘The primary aim of this Act is to conserve and protect Australia’s environment, its natural heritage and biological diversity including species and ecosystems, its land and waters, and the life-supporting functions they provide.’

A range of secondary objectives could then sit under the overarching main objective. One of these secondary objectives should explicitly seek to prevent extinction of any species, and the Act should detail a clear chain of accountability and an explicit requirement for public inquiry following any extinction.

The Act should note provisions to ensure objectives are effectively resourced and operationalised.

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

Existing matters of national environmental significance should be retained and expanded to include six new triggers:

1. Ecosystems of National Importance (including High Conservation Value Vegetation, Key Biodiversity Areas and wetlands of national importance);
2. the National Reserve System (terrestrial and marine protected areas);
3. vulnerable ecological communities (alongside other threatened species and ecological communities);
4. significant land-clearing activities;
5. significant greenhouse gas emissions; and
6. significant water resources (expanded beyond coal and gas impacts).

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?

Although all broad elements of the EPBC Act need to work together for effectiveness and it is difficult to isolate elements for reform, two priority elements for reform should be ‘Biodiversity Protection’ and ‘Assessments and Approvals.’

The Biodiversity Protection element should explicitly seek to prevent extinction of any species, and detail a clear chain of accountability and an explicit requirement for public inquiry following any extinction. The scope of biodiversity should be expanded to include Ecosystems of National Importance (including High Conservation Value Vegetation, Key Biodiversity Areas and wetlands of national importance), the National Reserve System (terrestrial and marine protected areas) and vulnerable ecological communities (alongside other threatened species and ecological communities).

The Assessments and Approvals element needs to clearly acknowledge the environmental threat of climate change, and projects generating significant greenhouse gas emissions should become a trigger under the matters of national environmental significance. There should be a requirement for the federal government to assess projects with major greenhouse gas footprints.

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?

The declining health of the Australian environment and continuing loss of biodiversity including the ongoing loss of species to extinction, reflect that the Act has largely ineffective in achieving its statutory objectives to protect the environment and promote ecologically sustainable development and biodiversity conservation.

There should be a greater focus on better guidance on the EPBC Act. For effectiveness and accountability, this could be facilitated by the establishment of new overseeing environmental authorities, such as a National Sustainability Commission and/or National Environment Protection Authority.

Reform of the Act should focus on addressing the key constraints on management effectiveness noted in the 2016 State of Environment report, being:
• lack of an overarching national policy that establishes a clear vision for the protection and sustainable management of Australia’s environment to the year 2050, which is supported by:
o specific action programs and policy to preserve and, where necessary, restore natural capital and our unique environments, taking into account the need to adapt to climate change
o complementary policy and strengthened legislative frameworks at the national, state and territory levels
o efficient, collaborative and complementary planning and decision-making processes across all levels of government, with clear lines of accountability
• poor collaboration and coordination of policies, decisions and management arrangements across sectors and between managers (public and private)
• a lack of follow-though from policy to action
• inadequacy of data and long-term monitoring, which interferes with our ability to apply effective policy and management, and establish adequate early warning of threats. For example, our understanding of even the most iconic and well-known species in Australia is often patchy, and sufficient knowledge of ecosystem processes that maintain the 99 per cent of species that account for Australia’s biodiversity is missing
• insufficient resources for environmental management and restoration
• inadequate understanding and capacity to identify and measure cumulative impacts, which reduces the potential for coordinated approaches to their management.

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

The declining health of the Australian environment and continuing loss of biodiversity including the ongoing loss of species to extinction, reflect that the Act is not delivering what was intended in an efficient and effective manner.

How well is the EPBC Act being administered?

The short-falling of the Act in meetings its key objectives would indicate the EPBC Act is not being well administered.

The Act should require or establish new institutions for effective implementation and administration of the Act.

New and re-invigorated institutions to administer the Act should include:
• National Sustainability Commission
• National Environmental Protection Authority
• Independent Scientific and Heritage Committees
• Advisory councils and expert taskforces

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

Given the EPBC Act is failing to adequately address current environmental challenges, it is unlikley to be sufficient to address future challenges, especially in the context of climate change.

Any general changes to the Act will remain insufficient in allowing the Act to address future challenges unless they are accompanied with changes to allow more effective administration (such as through the establishment of a National Sustainability Commission, and /or National Environmental Protection Authority), provide adequate resourcing for actions that achieve the Act objectives, and have clear lines of accountability.

What changes are needed to the EPBC Act? Why?

• Establishing new institutions that allow effective implementation and administration of the Act (such as a National Sustainability Commission, and /or National Environmental Protection Authority).
• Providing clear lines of accountability and public inquiry for situations when objectives fail, for example when species become extinct.
• Expanding the triggers for matters of national environmental significance to include:

1. Ecosystems of National Importance (including High Conservation Value Vegetation, Key Biodiversity Areas and wetlands of national importance);
2. the National Reserve System (terrestrial and marine protected areas);
3. vulnerable ecological communities (alongside other threatened species and ecological communities);
4. significant land-clearing activities;
5. significant greenhouse gas emissions; and
6. significant water resources (expanded beyond coal and gas impacts).