Dr Emily Gibson, Science, Technology, Environment and Resources

Key issue

Audit reports, reviews and a statutory review into Australia’s primary environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), have found that it is not being implemented efficiently or effectively, or achieving its objectives.

Reform of the EPBC Act and effective enforcement of its provisions is fundamental to addressing the declining trajectory of Australia’s environment.

The Commonwealth’s environmental role

While the Australian Constitution does not explicitly provide the Australian Parliament with power to make laws relating to the environment, the Commonwealth can legislate on environmental matters using indirect constitutional powers. These include the external affairs power (based on Australia’s obligations under international environmental agreements) and the corporations power.

The Commonwealth’s primary environmental legislation, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), is focused on the protection of 9 matters of national environmental significance (MNES). These are largely based on Australia’s obligations under international agreements relating to environmental matters, such as the Convention on Biological Diversity and the Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention), and on political agreements between the Commonwealth and states. This includes the 1997 Heads of Agreement on Commonwealth and State Roles and Responsibilities for the Environment.

The current MNES are:

• world heritage properties
• national heritage places
• wetlands of international importance
• listed threatened species and ecological communities
• listed migratory species
• Commonwealth marine areas
• the Great Barrier Reef Marine Park
• nuclear actions (such as uranium mines)
• water resources in relation to large coal mining and coal seam gas developments (known as the ‘water trigger’).

Generally, actions (or developments) that are likely to have a significant impact on an MNES require an environmental assessment and an approval from the federal Environment Minister. Some actions, such as some nuclear-related actions, are expressly prohibited under the EPBC Act.

The EPBC Act has long been criticised for failing to address other matters that cumulatively have a significant impact on the environment. Stakeholders, such as the Places You Love Alliance (representing over 60 environmental organisations) and the Environmental Defenders Office, have argued that new MNES should be added, including for land clearing, biodiversity and ecosystems, water resources, climate change, air pollution and protected areas. The Australian Labor Party (ALP) and Australian Greens have previously indicated support for expanding MNES. During the 46th Parliament, the Australian Greens introduced a private Senators Bill proposing a climate trigger for ‘emissions-intensive activities’. Conversely, the Minerals Council of Australia has argued that duplicative triggers should be rationalised, that the nuclear actions trigger should be narrowed, and, together with the Business Council of Australia, that the water trigger be reformed or removed.

Recent reviews of the EPBC Act

Second independent statutory review of the EPBC Act

The EPBC Act stipulates that an independent review of the Act be undertaken every 10 years to assess the operation of the Act and the extent to which its objectives have been achieved. The first statutory review (the Hawke Review) reported in October 2009, although many of its recommendations have not been implemented. Professor Graeme Samuel began the second independent statutory review of the EPBC Act (Samuel Review) in October 2019, with an Interim report released in June 2020, and the Final report released in January 2021.

Professor Samuel, having observed that Australia’s natural environment and iconic places are in an overall state of decline and under increasing threat, concluded:

The EPBC Act is out dated and requires fundamental reform. It does not enable the Commonwealth to effectively fulfil its environmental management responsibilities to protect nationally important matters. (p. ii)

The final report outlines an integrated suite of 38 recommendations for improving the operation and effectiveness of the EPBC Act as part of a staged pathway of reform. Ultimately the report recommends a comprehensive reworking of the Act.

Key elements of the proposed reforms- each requiring legislative amendments- include:

• the establishment of legally enforceable National Environmental Standards (NES). NES represent the touchstones for future effective environmental policy. They are intended to prescribe how activities at all scales, including actions, decisions, plans and policies, contribute to outcomes under the Act. The final report of the Samuel Review lists a proposed suite of NES- as well as providing 4 drafted Standards- covering matters of national environmental significance, Indigenous engagement and participation in decision-making, compliance and enforcement, environmental monitoring and evaluation of outcomes, and environmental restoration, including offsets.
• new independent oversight and assurance bodies and mechanisms. These include the statutory appointment of an independent Environment Assurance Commissioner who would provide independent monitoring, audit and transparent public reporting on the operation and administration of all parties operating or accredited under the Act. The review proposes the appointment of 4 new specialist committees (for Indigenous engagement and participation, biodiversity conservation, heritage and water resources) that would provide advice to decision-makers. These committees would be overseen by an Ecologically Sustainable Development Committee that would be responsible for oversight and management of monitoring, evaluation and reporting on the outcomes of the Act.
• improved Indigenous engagement and participation in decision-making, as well as comprehensively review Indigenous cultural heritage protection laws (see the Briefing book article Protecting Indigenous cultural heritage).
• a robust process for the accreditation of states, territories or other decision-makers under the Act. The accreditation process would be based on NES, and provide for Commonwealth intervention where accredited bodies are not meeting NES, as well as independent performance monitoring and audit of regulators. This recommendation reforms and strengthens the existing ability of the federal Environment Minster to enter into bilateral agreements (for assessments and for approvals) with states and territories.
• improved data and environmental information systems to underpin more efficient and informed processes and decision-making. The Review proposes amendments to the Act to provide for an information custodian with a clear legal mandate.
• provision for the assessment of cumulative impacts through national and regional plans, and for greater investment in restoration of the environment. The review recommended that the EPBC Act should be focused on matters for which the Commonwealth is directly responsible, with amendments to the ‘water trigger’ so that it would apply only to cross-border water resources. The Review proposes that national plans would be prepared for pervasive cross-jurisdictional issues (such as feral animal control), while regional plans would support a shift in focus from project–by–project development transactions to effective planning at a larger scale. The review proposes 3 regional planning tools, each of which would be consistent with NES and support the protection of MNES.

Reform efforts to date

Following the release of the Samuel Review’s Interim report, the Minister for the Environment committed to developing national environmental standards, progressing bilateral agreements with willing states for ‘single touch’ approvals, commencing a national engagement process for modernising the protection of Indigenous cultural heritage, and exploring market-based solutions for habitat restoration. The Government later released A pathway to reforming national environment law.

In August 2020, the Morrison Government introduced a Bill to support ‘single-touch environmental approvals’ (see the Parliamentary Library’s Bills Digest). This followed a similar  Bill introduced by the Abbott Government in 2014. The new Bill aimed to expand and clarify existing provisions in the EPBC Act that allow the Commonwealth to delegate environmental approval powers to states and territories through bilateral agreements. Existing provisions allow the Environment Minister to enter into:

• assessment bilateral agreements, where the ninister accredits a state or territory assessment process and the relevant state or territory assessment body makes a recommendation to the minister who then makes an approval decision or
• approval bilateral agreements, where the minister accredits a state or territory assessment and approval process and no further approval by the minister is required.[1]

Separate approvals may still be required under relevant state and territory legislation (for example, Indigenous cultural heritage protection or native vegetation clearance). To date, the minister has accredited assessment bilateral agreements with each state and territory and is progressing approval bilateral agreements.

The new Bill was not supported by the ALP, Australian Greens or cross-bench senators, or by environment, legal and science stakeholder groups. The Bill did not require the delegation of approval powers to be supported by legally enforceable NES, or for the accreditation of bilateral agreements to be subject to rigorous, transparent oversight by the Commonwealth or an independent Environment Assurance Commissioner, as recommended by the Samuel Review.

In February 2021 the Government introduced a Bill to provide for NES and an Environmental Assurance Commissioner (see the Parliamentary Library’s Bills Digest). The Bill sought to establish a framework for making, varying or revoking and applying NES. It also sought to establish an Environmental Assurance Commissioner to monitor and audit the operation of bilateral agreements, and to oversee Commonwealth processes for making and enforcing approval decisions.

A Senate Committee recommended that the Bill be passed with amendments; however, the ALP, Australian Greens and cross-bench senators issued dissenting reports. While industry and agriculture stakeholders broadly supported the Bill, environmental, legal and science organisations did not. These stakeholders expressed concern that the Bill did not properly reflect the recommendations of the Samuel Review (see the Bills Digest for more information).

In 2021, the Department of Agriculture, Water and the Environment (DAWE) published a final draft National Environmental Standard on Matters of National Environmental Significance, but the draft standard was criticised as failing to reflect the standards proposed by the Samuel Review.

The Morrison Government’s 2022–23 Budget provided funding for a review of DAWE’s Environmental offsets policy, and a review of statutory committees. This review will scope a new advisory committee to provide expert industry and technology advice to government.

The Morrison Government also progressed regional plans, with an intention to use them to streamline the approvals process, including for ‘crucial resources projects’. The EPBC Act currently provides for 2 forms of regional planning: bioregional plans and strategic assessments.[2] The Minister may prepare a bioregional plan for a bioregion that is within a Commonwealth area, or cooperate with a state or self-governing territory to prepare a bioregional plan for a bioregion that is not wholly within a Commonwealth area. The Minister is required to have regard to a bioregional plan in making decisions under the Act. To date, bioregional plans have only been made for 4 of the 6 Commonwealth marine areas. The minister may make a declaration that certain actions or classes of action, undertaken in accordance with a bioregional plan, do not require approval under Part 9 of the EPBC Act.

The EPBC Act also provides for strategic assessments. Under a strategic assessment, the Minister enters into an agreement with a partner (for example, a state or territory, government agency, or a private proponent) to allow for the impacts of a class of actions on protected matters to be assessed in accordance with an approved policy, plan or program. The minister may determine that a less onerous approach to assessment is required for actions assessed in accordance with a strategic assessment, or may declare that actions approved in accordance with the agreement do not require a separate approval under Part 9 of the EPBC Act.

The Morrison Government considered the following areas as potential locations for regional plans: south-east Queensland, Cape York, the Beetaloo Basin, the Pilbara, and parts of Tasmania (p. 65). Stakeholders such as the Australian Conservation Foundation raised concerns that a move to regional plans- independent of the comprehensive reforms recommended by the Samuel Review- would weaken environmental protections.

Policy commitments

The ALP has committed to providing a full response to the Samuel Review, to working with stakeholders to reform the EPBC Act and to establishing an independent environment protection agency (EPA). The agency would have 2 divisions: a compliance and assurance division, and an environmental data, information and analysis division. The ALP committed to consulting with stakeholders on an EPA funding model, with contributions from industry likely. It has also committed to providing an annual ministerial statement on Australia’s role in international negotiations on environmental issues.

These commitments have been welcomed by environment stakeholders and are broadly consistent with policies the Australian Greens and some ‘teal’ independents took to the 2022 election. The Australian Greens will also seek to establish a ‘climate trigger’ to ensure that the climate impact of all large projects is thoroughly assessed.

Other reviews

The Samuel Review followed several other audits and reviews since the Hawke Review, as summarised in Table 1.

Table 1            Audits and inquiries relating to the EPBC Act, and key findings, since 2014

Note: reference to the EPBC Act in report titles has been abbreviated.

A new framework for National Environment Protection Measures

The Commonwealth, states and territories agreed, in the 1992 Intergovernmental Agreement on the Environment (IGAE), to facilitate a cooperative national approach to the environment. The IGAE provides for the establishment of the National Environment Protection Council (NEPC, originally called the National Environment Protection Authority), comprising Commonwealth, state and territory environment ministers, and the making of national environment protection measures (NEPMs). The arrangements are implemented by the National Environment Protection Council Act 1994 (Cth) and mirror state and territory legislation (NEPC Acts).

NEPMs are a special set of national objectives to assist in protecting or managing particular aspects of the environment. The NEPC has made 7 NEPMs (including for ambient air quality, diesel vehicle emissions, national pollutant inventory, and used packaging), while national guidelines for fresh and marine water quality have been made separately under the National Water Quality Management Strategy. The states and territories have discretion as to how NEPMs are implemented, potentially resulting in variation in uptake, including more stringent measures in some jurisdictions.

NEPMs may be reviewed, but this has proven a lengthy process. For example, a review of parameters of the ambient air quality NEPM commenced in 2005 with a variation of the NEPM finalised in April 2021, and a review of the national pollutant inventory commenced in 2017 and was completed in 2018–19 but the review report was not released until 1 April 2022.

The fourth statutory review of NEPC Act, released in July 2019, found that administration of the Act was inefficient and ineffective, resulting in significant delays or avoidance practices, and that the implementation of some NEPMs was ineffective. The review recommended the repeal and remaking of (or at least amendments to) the Act, clarifying the objects of the Act as providing for the protection of the community and the environment, and proposed a new framework with 3 categories of NEPMs (guidelines, protocols, standards), depending on the subject matter.

The NEPC’s response to the review incorporates the decision of the National Cabinet- following the Conran Review of COAG Councils and Ministerial Forums- to disband the NEPC. The regulatory functions of the NEPC have been assumed by the ad hoc Environment Minister’s Meeting and will be dealt with out-of-session wherever possible. The NEPC agreed to pursue amendments to the NEPC Acts (see Appendix A of the response), broadly relating to consultation, delegations, and reporting. It also agreed to broaden the scope of NEPMs to any environment protection matters as agreed by the NEPC, and to consider redrafting the object of the Act. At their April 2021 meeting the environment ministers endorsed the NEPC’s response and tasked the Senior Officials Group with considering potential legislative amendments and their implications.

Further reading

Sophie Power, Environment Protection and Biodiversity Conservation Act 1999: A Quick Guide, Research paper series, 2018–19, (Canberra: Parliamentary Library, 2019).

Graeme Samuel, Independent Review of the EPBC Act – Final Report, (Canberra: Department of Agriculture, Water and the Environment, 2020).

Senate Environment and Communications Legislation Committee, Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 [Provisions] (Canberra: The Senate, 2021).

Senate Environment and Communications Legislation Committee, Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (Canberra: The Senate, 2020).

Terry Bailey, Independent Review of the National Environment Protection Council Acts, (Canberra: Commonwealth of Australia, 2019) [incorporating] Department of Agriculture, Water and the Environment, National Environment Protection Council Response to the Fourth Review of the National Environment Protection Council Acts (Commonwealth, State and Territory), (Canberra: Commonwealth of Australia, 2021).

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