Chapter 2
Issues arising in relation to the bill
Submissions
2.1
The committee received a large number of submissions and a number of
form letters, with the majority of submissions in support of the bill.
Supporters of the bill raised a number of issues and challenged the arguments
being made about the need for reduced Commonwealth involvement in approval of
matters of national environmental significance. Most submitters expressed grave
concern about the risks to the environment associated with granting approval
powers to the states and territories.
2.2
Submitters who did not support the bill did so on the grounds that they
view the option for states and territories to have approval powers as providing
a way of improving business efficiency while at the same time maintaining a
high standard of environmental regulation and management. The differing views,
and issues raised in the evidence is discussed in further detail below.
Support for the EPBC Act
2.3
As the committee notes later in this chapter, some submitters did make
suggestions for improving the operation of the EPBC Act. However the committee
has found that there is strong support for the aims and objectives of the Act.
At the time of introducing the EPBC legislation in 1999, the former Howard
government noted that the bill:
...enables the Commonwealth to join with the states in
providing a truly national scheme of environmental protection and biodiversity
conservation, recognising our responsibility to not only this but also future
generations. It does so by respecting and building upon the strengths of our
Federation and the primary responsibility of the states for delivering
on-ground natural resource management...By accepting Commonwealth leadership,
respecting the role of the states and providing best process for users, the
bill provides a framework within which to build public confidence and support
for its vitally important objectives.[1]
2.4
The Minister at the time of introducing the EPBC legislation, former
Howard government Minister for the Environment, Robert Hill, noted:
...the new legislation provides for Commonwealth leadership
on environmental matters and respects the primary role of the States in
relation to on-ground natural resource management. State agencies and areas of
local governments are clearly the best places to write on ground delivery of
environmental management, with both the practical expertise and the experience
of local conditions. There is however also a critically important role for
Commonwealth. The Commonwealth is ultimately responsible for ensuring that
Australia meets its international environmental responsibilities and in our
view must also demonstrate leadership on environment matters by, for example,
working with the States to set national standards. The EPBC Act recognises the
need for Commonwealth leadership and the reality that on-ground delivery should
be carried out as far as possible by the States...Under this model the
Commonwealth and the community can be confident that the matters of national
environmental significance are being protected by processes we believe meet
best practice.[2]
2.5
The committee has found that these aims are as relevant today as they
were in 1999. During the inquiry Mr Peter Cosier, Director of the Wentworth
Group of Concerned Scientists told the committee:
This country faces enormous environmental challenges: past
mistakes in overclearing of land, overallocation of water resources,
unsustainable fishing practices, the spread of weeds and feral animals, and the
future threats of climate change and overdevelopment on our coastal
environments. Environmental law can do little to address these past mistakes—we
need another policy response for those—but it is a vitally important tool to
ensure that future development does not cause further damage to Australia's
environmental assets.[3]
Improving efficiency
2.6
Submitters who did not support the bill advocate the use of approval
agreements as a way of reducing inefficiencies in the current arrangements for
environmental and development approvals.[4]
The Business Council of Australia (BCA) says that the current system of
assessment and approval under the EPBC Act leads to 'costly double handling'.[5]
They argue that it is possible to provide a high level of assurance for the
protection of Australia's unique environment and heritage values through
approval agreements to improve competitiveness for project proponents.[6]
2.7
The BCA's central argument for rejecting the bill is that it will
inhibit long term economic development of the Australian economy, and therefore
the broader wellbeing of the community:
The successful delivery of major capital projects is
critically dependent on timely regulatory approvals and well-considered and
well-managed regulatory conditions upon approval. If Australia takes too long
to deliver approvals, or the conditions placed upon approvals are unworkable,
major capital projects will not proceed, or will not deliver full value to
their owners or to the Australian community.[7]
2.8
The BCA argues that even though data to support this claim is 'scant'[8],
there are compelling reasons to allow for approvals to be carried out by the
states and territories. This includes improved timeliness and predictability
for business and aligning with international standards.[9]
2.9
While the committee heard claims that the Commonwealth approval process
was causing inefficiency, that processes between the Commonwealth and the
states and territories were duplicated, and that project proponents were
labouring underneath the weight of uncertainty,[10]
there was no substantive evidence presented to support these claims. These
issues are discussed in further detail later in this chapter.
2.10
The option of developing approval agreements with states and territories
was presented as a way to harness efficiency.[11] The BCA cites a 2009 report by the
Productivity Commission which found that 'expediting the regulatory approval
process for a major project [related to the upstream petroleum (oil and gas)
sector] by one year could increase its net present value by 10-20 per cent'.[12]
2.11
However, the committee notes that this same report, the Productivity
Commission's 2009 Research Report, Review of Regulatory Burden on the
Upstream Petroleum (Oil and Gas) Sector, found that the Commonwealth should
retain approval powers in relation to matters of national environmental
significance:
While effectively consolidating environmental and heritage
approval processes would streamline those approval processes, there would also
appear to be merit in retaining an independent decision maker of last resort,
particularly in relation to matters of potential national environmental
significance. This is consistent with the underlying rationale of the Commonwealth's
Environment Protection and Biodiversity Conservation Act 1999.[13]
2.12
The committee was presented with no compelling evidence to show how an
approval agreement would improve business efficiency. However, a single
submitter, PGV Environmental, claims that Commonwealth processes caused delays
to a residential development which added to the cost and reduced the supply of
residential housing lots in Western Australia.[14]
2.13
The Victorian Association of Forest Industries stated that '...the Bill
would only reduce the efficiency and effectiveness of the current system and increase
green tape, as well as administration and regulatory burden to Australian
businesses.'[15]
2.14
The Australian Coal Association agreed:
Escalating costs and delays are making Australian mining
projects less internationally competitive and this is jeopardising a
once-in-a-generation opportunity for Australia to capture the benefits of
global demand for our resources.[16]
2.15
The Pyrenees Shire Council in Victoria expressed concern about the
ability of the Commonwealth to make timely decisions that reflect local
knowledge and experience.[17]
This view is shared by the Victorian Farmers Federation, who argue that the
layers of government regulation at local, state and federal level cause 'major
overlaps.'[18]
2.16
The BCA argues that risks can be adequately managed through the
development of increased reporting and audit mechanisms, as recommended by the
Hawke review, and existing safeguards under the EPBC Act. These include:
- a statutory requirement that the minister may only enter into an
bilateral agreement if satisfied that it complies with the Act;[19]
- a statutory requirement that the minister publish a draft
agreement with a 28-day consultation period and take into account any comments
on the draft agreement;[20]
- that a draft bilateral agreement accrediting a management plan or
authorisation process under an agreement be tabled in both houses of parliament
for 15 sitting days as a disallowable instrument;[21]
- provisions to suspend or cancel part, or all, of a bilateral
agreement if the minister considers that a state government has not complied
with the agreement.[22]
2.17
The Minerals Council of Australia suggests that allowing for increased
use of approval bilateral agreements in the states and territories could offer
enhanced environmental outcomes though harmonisation of national standards, and
allow the Commonwealth to:
...put its energies into assuming a more strategic role. Furthermore,
the delegation of EPBC Act requirements to the States/Territories allows the
Commonwealth to assume a more strategic role including: monitoring and
reporting of EPBC listed entities; bio-regional planning (pre-emptive of
development); and as standard setter for the harmonisation of State/Territory
processes. This would target Commonwealth resources more appropriately and
facilitate greater biodiversity outcomes at an overall lower cost to society.[23]
2.18
The Australian Chamber of Commerce and Industry says that approval
agreements would not dilute the current system of legal protection for the
environment but rather create efficiencies.[24]
This view is supported by the BCA's assertion that increasing the use of
assessment agreements alone will not create efficiencies, but rather there
should be improved and increased use of both assessment and approval
agreements. They note that many controlled actions are often approved with
conditions attached under both state or territory and Commonwealth legislation:
Bilateral agreements for assessments only cannot reduce the
duplication associated with conditional approvals following the assessment
phase. In the experience of many of our members, developing secondary
assessments and plans and seeking secondary approvals can be at least as costly
as the primary assessments and approvals phase.[25]
2.19
The committee was presented with little evidence from the states and
territories. However the Premier of Queensland, the Hon Campbell Newman MP,
expressed his desire to continue negotiations that would allow for the states
and territories to develop approval agreements with the Commonwealth. He also expressed
disappointment with the Commonwealth's announcement that it would not be
pursuing approval bilateral agreements at the present time.[26]
2.20
This disappointment was shared by several other submitters including the
Australian Forest Products Association (AFPA) who go so far as to say that the
bill 'to preclude such bilateral processes and approvals would be a retrograde step
that is totally contrary to the national agenda'.[27]
The AFPA told the committee that stakeholders can have confidence in the fact
that the Commonwealth has always taken a 'conservative and precautionary'[28]
approach to the development of approval bilateral agreements.
Managing conflict of interest
2.21
There is a strong view that providing the states and territories with
the power to grant approvals over matters of national environmental
significance would create a situation where conflicts of interest are likely to
arise. Many submitters expressed concern that this would put state or territory
governments in the position where they could be project proponent as well as
decision maker:
The absence of the federal government from environmental
decision making would result in few, if any, checks and balances on state
government processes. This is of particular concern as state governments are
often the proponent for, or beneficiary of major development projects that
traditionally trigger the EPBC Act, resulting in a significant conflict of
interest.[29]
An incentive to approve
2.22
Even in cases where the state or territory is not the proponent, many
submitters raised concerns about the relevant state or territory receiving
economic benefits from the development under consideration, acting as an
incentive for approval regardless of the environmental impact. Economists at
Large described this as a 'disincentive to adequately assess the environmental
and social costs of a particular project and to act on this assessment.'[30]
2.23
In addition, the committee heard that if approval agreements were in
place it is likely that state and territory planning departments would exercise
decision making powers. Dr Chris McGrath told the committee of the situation in
Queensland where the Coordinator-General's department is responsible for state
development:
It is already accredited under the Queensland assessment
bilateral. I would suspect that, if there were an approval bilateral with
Queensland, the decision-making role would be given to that department, which
is already a very powerful department. It is also not a department that is
particularly concerned about environmental protection; it is all about the
development of the state.[31]
2.24
The committee is concerned about the possibility of state and territory
planning departments exercising decision making powers in relation to matters
of national environmental significance, and notes that state and territory
planning departments are responsible for assessment of major economic
development and infrastructure projects, not for protecting the environment.[32]
2.25
Submitters gave prominent examples of state or territory approved
projects, which were then found by the Commonwealth to have likely adverse
impacts on matters of national environmental significance and were rejected at
Commonwealth approval stage:
One of the classic examples of this is the Traveston Dam
inquiry in Queensland. There were sufficient significant concerns, both local
community concerns of farming communities and about species that were under
threat, for the Commonwealth to have to intervene in that process. I will not
go into the details of the flaws of that, but that is one clear example that is
more recent. Of course, the other examples around the protection of our more
iconic areas—be they Kakadu, the Daintree or the Franklin River—go well back.
The point here is that this speaks directly to the inherent conflict of
interest that exists between what states want to achieve and what might be a
robust environmental outcome.[33]
2.26
Professor John Quiggin, Australian Laureate Fellow at the School of
Economics and School of Political Science and International Studies at the University
of Queensland, provided examples of how approval powers given to the states and
territories were likely to lead to competition to attract projects, encouraging
the relaxation of their environmental standards. Professor Quiggin described
this as a race to the bottom:[34]
It is in Australia's national interest that environmental
standards for the approval of major projects should be nationally consistent
and predictable over time. Attempts by competing state governments to attract
investment by offering favo[u]rable treatment under such slogans as
‘fast-tracking’ and ‘cutting green tape’, will undermine this goal.[35]
2.27
This view is shared by the Conservation Council of South Australia who
say:
The competition between states to attract industry puts the
environment at risk. There is incentive for the state governments to reduce
environmental protection in order to make themselves appear more attractive to
industry.[36]
2.28
The committee is concerned that if the Commonwealth were to lose its
oversight and approval power in relation to matters of national environmental
significance, this may encourage competitive federalism of the kind being
advocated by the Premier of Queensland whereby:
...intergovernmental relations should start with every state's
right to seek a competitive advantage over each other, using lower taxes and
less regulation to attract business and secure investment.[37]
Lack of evidence that the current process is hampering investment
2.29
The committee heard that there is no empirical evidence to suggest that
the current EPBC approval process is hampering investment or imposing
unreasonable costs on individual projects. Latrobe City Council expressed the
view that as the EPBC Act currently precludes Commonwealth intervention for all
decisions except those that are specifically defined as matters of national
environmental significance, this already provides a system whereby:
...bilateral assessment agreements can...be used to align the
requirements of state and federal environmental assessments without requiring a
hand-over of decision making responsibilities.[38]
2.30
The National Parks Australia Council stated:
Statements by business interests that bilateral agreements
will improve efficiencies simply have not been substantiated and appear
unlikely to be substantiated in the future. Throughout the extensive reviews of
the EPBC Act over the past 6 years, there has been no work done in any sector
which identifies specific efficiencies from the devolution of Federal approval
powers to the States and Territories.[39]
2.31
The Wentworth Group of Concerned Scientists contested the BCA's
assertion that environmental regulation is putting at investment at risk,
stating that the BCA uses only one example to make such a broad claim:
The single example used by the Business Council of why state
governments should be given Commonwealth approval powers actually serves to
demonstrate precisely why they shouldn't. The Traveston Crossing Dam on the
Mary River was proposed by a Queensland Government corporation and was
recommended for approval by the Queensland Coordinator General. In 2009 the
Commonwealth Environment Minister, Peter Garrett, acted under the EPBC Act to
refuse the dam development on the "very clear" scientific evidence
that it would cause unacceptable impacts on nationally protected species: the
Australian Lungfish, the Mary River Turtle, and the Mary River Cod.[40]
2.32
Dr Chris McGrath claimed that contrary to arguments that Commonwealth
approval processes cause delays, the evidence suggests that state government
processes cause greater problems. He presents the Wandoan Coal mine proposal as
an example of a project requiring both state and Commonwealth approval. While
the Commonwealth process was completed between 23 June 2008 and 21 March 2011,[41]
in January 2013 the state of Queensland had not yet made a decision under their
legislation since it was referred on 27 May 2008. He says:
It is important in this context to recognize that State and
local government approvals are far more numerous than EPBC Act approvals and
their requirements are typically far more extensive, costly and time-consuming
than those imposed by the EPBC Act.[42]
2.33
Dr McGrath also challenged the claim by the BCA and others that
Commonwealth approval powers were leading to a loss of income by project
proponents. Even if a project is being delayed, this is not to say that the
royalties or income of the project is lost forever, it may just mean that the
income is delayed.[43]
2.34
Dr Martin Taylor from the World Wildlife Fund Australia told the
committee that mechanisms for cooperation between the states and territories
and the Commonwealth were already in place, and it is these that should be
better utilised:
We already have mechanisms for the states and the Commonwealth
to cooperate on the assessment of bundles of projects. That is a much better
level at which to apply the act so you actually take into account cumulative
effects on the environment. You do not just go project by project. That is a
far better way. Those provisions are already in the act. We do not see any
particular need to delegate approval power to the states or have a system for
that when the Commonwealth and the states can already cooperate in applying the
EPBC Act.[44]
2.35
The Wentworth Group of Concerned Scientists point out that since 1999,
the EPBC Act has provided for the states and territories to work cooperatively
with the Commonwealth through assessment agreements. However, they say that the
reasons this is not occurring efficiently is because the states and territories
cannot meet the standards required by the Commonwealth.[45]
2.36
In any event, the committee heard that out of 1022 projects referred for
Commonwealth approval, only 10 had been rejected, so the proposal for states
and territories to have approval powers as a way of reducing inefficiencies is
likely to have been overstated.[46]
2.37
The Wentworth Group of Concerned Scientists suggest that stronger
oversight of the current assessment agreements is required, as was recommended
by the Hawke review through the creation of an independent National Environment
Commission.[47]
Once you have that independent auditing power not only do you
have the safeguards or the possibility of building the safeguards in that you
are raising but you also have the ability of the Commonwealth to audit the
states in the processes that are either assessment processes or approvals
processes that have been delegated down through bilaterals.[48]
2.38
The committee notes that the Commonwealth government rejected the
recommendation of the Hawke report for the establishment of a National
Environment Commission.[49]
Confidence in the states and territories
2.39
Many submitters and witnesses express concern about the ability of the
states and territories to make decisions to deliver the best environmental outcomes,
and argue that relevant state and territory government departments may not be
sufficiently resourced to make decisions based on all available evidence.[50]
2.40
A number of submitters referred to three examples of proposals that were
ultimately rejected by the Commonwealth under the EPBC Act; Traveston Crossing
Dam in Queensland; Gunns Pulp Mill in Tasmania; and cattle grazing in the
Victorian high country. Submitters claim that it is almost certain that these
proposals would have been allowed if an approval bilateral agreement had been
in place with the relevant state.[51]
2.41
Concerns about the ability for the Commonwealth to cancel or suspend
approval bilateral agreements were also raised. Professor Lee Godden makes the
following points:
- There is insufficient monitoring and audit of the implementation
of agreements so it is impossible for the Commonwealth to know whether
agreements are being complied with;[52]
- For powers of suspension or cancellation to be invoked, a third
party referral to the Commonwealth Minister is required and depends on the
community having sufficient knowledge and resources to fulfil this function;
and
- There is a lack of procedural clarity on how a
state or territory's request to cancel and agreement would be triggered.[53]
2.42
The committee heard that many submitters and witnesses placed confidence
in the Commonwealth to offer sound decision making. The committee heard from
two Victorian councils that described the significance of their environmental
assets and the view that the discretion involved in decision making about these
important assets was best held by the Commonwealth to protect the national
interest.[54]
2.43
There was also considerable discussion in evidence about recent public
service job cuts in the states and territories and the ability of the states
and territories to adequately carry out additional obligations that may arise
under approval agreements.[55]
2.44
Concerns about the capacity of the states and territories to deliver
appropriate enforcement were also raised:
If we are looking for efficiency gains and improving
timeliness, not having the staff to do the assessments is obviously going to
impact. It also, as we note in our submission, has implications for
enforcement. We note that over the last three years the federal environmental department
investigated 980 incidents across Australia under the EPBC Act, with 40 court
actions, resulting in fines and enforceable undertakings of almost $4 million.
If the Commonwealth step out of this space and leave it all to the states there
is no guarantee that the states will enforce the laws to the same extent—that
they can fill the shoes of the federal government in terms of compliance, for
example.[56]
2.45
The department confirmed that there were instances where states and
territories could not comply with the standards required under assessment
agreements. Dr Kimberley Dripps advised the committee that '...in the operation
of some of the assessment bilaterals we find that the assessment provided by
the states is inadequate to meet the standards of the EPBC Act.'[57]
The Green Institute told the committee that as there is no national information
system for monitoring and reporting on the state of the environment, there is
no objective way of knowing if the states and territories are meeting their
existing obligations.[58]
2.46
The Australian Conservation Foundation cite the findings of state
Auditor-Generals which show that states and territories are failing to meet
their existing environmental protection obligations.[59]
2.47
The committee has found that there is a high degree of concern that
state and territory governments simply do not have the ability to exercise the
standards of decision making required. The committee was advised by the Wentworth
Group of Concerned Scientists that this is not to say that they may not have
this capacity in the future.[60]
However the committee does not agree. The committee's view is that it is not
appropriate for the states and territories to exercise decision making powers
for approvals in relation to matters of national environmental significance. On
this point the committee notes that the Premier of Queensland is advocating
that the relationship between the states and territories and the Commonwealth
should be one of 'competitive federalism'.[61]
If this approach is taken in relation to assessment and approval for matters of
national environmental significance, the committee considers that this would
have a detrimental impact on the nation's unique natural heritage.
2.48
In this context, the committee also notes the department's response to
questions about proposed changes to assessment processes under the NSW planning
system (the NSW Green Paper[62]).
The department advised that the full implications of the Green Paper for
accreditation of NSW assessment approaches would not be known until NSW passes
legislation.[63]
The committee is concerned that this now creates considerable uncertainty about
the NSW assessment processes. The committee would therefore be alarmed at the prospect
of referring any approval powers to state governments as this is inconsistent
with the Commonwealth's international obligations and the intent of the EPBC
Act.
Securing Australia's natural heritage
2.49
A number of submitters expressed concern that the desire for continued
economic growth brings with it ever-increasing pressure on the natural
environment. The Commonwealth government's powers in the EPBC Act were
described as an ultimate protection or 'bulwark' to hold back these pressures.[64]
While it is outside of the scope of this inquiry, several submitters called for
strengthened powers of the Commonwealth under the EPBC Act, and broadening of
the criteria that would trigger the approvals process.[65]
2.50
The committee heard from a number of submitters and witnesses who
believe the Commonwealth government is in the best position to safeguard
Australia's environmental assets. Many submitters noted that ecosystems do not
neatly follow state and territory boundaries, therefore the Commonwealth should
be making decisions that affect the national interest.[66]
International obligations
2.51
The committee has found that matters of national environmental
significance and Australia's international obligations are at the heart of the
EPBC Act, and for these reasons, submitters and witnesses view the role of the
Commonwealth Minister in approvals related to matters of national environmental
significance as critical.[67]
Professor Lee Godden noted that under the Convention Concerning the
Protection of the World Cultural and Natural Heritage there is an
obligation placed on national governments to ensure the protection,
preservation and continuation into the future of the World Heritage areas. 'These
are specific obligations that the Commonwealth government enters into and it
alone bears the responsibility for discharging those obligations.'[68]
2.52
The Law Council of Australia urged the Commonwealth to retain its powers
for approval of matters of national environmental significance. They express
concern that in the absence of guaranteed equivalent environmental protection
being offered by states and territories, the Commonwealth should not devolve
its approval powers. They advocate the application of the principle of
non-regression which 'discourages public authorities from amending legislation
where the amendments will reduce the available protections.'[69]
Committee view
2.53
During its deliberations the committee was presented with evidence to
show that the EPBC Act is, in the main, working well and that there is
overwhelming community support for the Commonwealth to maintain its oversight
powers to ensure proper protection of the environment. The committee has found
that international obligations compel the Commonwealth to retain its powers for
approving matters of national environmental significance in order to deliver
strong national coordination and control to protect Australia's biodiversity,
to reduce habitat loss and land degradation and to protect the nation from
biosecurity risks. The committee rejects the claims made by business interests
that Commonwealth powers of approval are the cause of inefficiencies, delays,
and loss of income to project proponents.
2.54
The committee considers that there is confusion amongst submitters as to
what is actually causing delays or uncertainties in the assessment and approval
processes. On this point the committee is persuaded by evidence that it
received to indicate that assessment processes at the state and territory level
were in some circumstances causing delays, rather than processes at the
Commonwealth level. The committee would also like to caution against the
assumption that any future approval bilateral agreements would solve all of the
problems that are perceived to exist in the current system.[70]
In fact, the committee was presented with no empirical evidence to substantiate
claims that Commonwealth involvement was hampering approval processes.
2.55
This was confirmed by the department at the committee's public hearing
on 15 February 2013:
CHAIR: So there has been no evidence from the Minerals
Council or the BCA to say: 'Here are the efficiency problems with the EPBC'?
Dr Dripps: Not that I recall.
CHAIR: I find that amazing because of everything you
read in the papers. I went to Corrs Westgarth and their environmental lawyers
are saying the efficiencies that can be gained by this are unassailable, but
you have not heard of that, have you?
Dr Dripps: We are certainly doing some work
internally—as I think Mr Knudson said at estimates earlier in the week—to
improve our efficiency, but in terms of the problem definition, I am certainly
often confronted with generalities and I look forward to receiving any advice
on specifics.
CHAIR: That is interesting, Dr Dripps. That is all we
have had. We have not had one hard piece of evidence before this committee that
says that a federal government should change the EPBC Act to allow for the
states to make assessments and approvals on the basis of these inefficiencies.
I have not seen any, and you are saying you have not seen them either.
Dr Dripps: That is right.[71]
2.56
And:
CHAIR: I just think it is very important. Your
evidence tells us that there is no evidence that putting the federal powers
back to the states will improve efficiency.
...
Dr Dripps: I think what I said is that we have the
publicly available reports and we have the same anecdotal evidence that has
been presented to you—
CHAIR: So no hard evidence.
Dr Dripps: from various industry organisations about
the efficiencies and inefficiencies that occur in administration of the act.
CHAIR: That means that there is no hard evidence;
there is anecdotal evidence. Is that correct?
Dr Dripps: That is a conclusion from reading the
reports, if you like.[72]
2.57
In response to the committee's questioning on whether any analysis has
been undertaken of delays under EPBC Act processes and associated costs, the
department noted that a report was presented by Deloitte Access Economics in
April 2011.[73]
Unfortunately, this information was only provided to the committee in answers
to questions on notice on 8 March 2013, so the committee has not had time to fully
consider this report. However, it appears that the report focusses on a cost‑benefit
analysis of reforms to the EPBC Act proposed by the Hawke review and concludes
that the 'reforms should proceed, with resourcing provided for their
implementation'.[74]
It is the committee's view therefore that the Deloitte report does not
substantiate claims that EPBC Act processes are causing undue delays and costs
to proponents.
2.58
Furthermore, the committee notes that any costs to the proponent associated
with meeting EPBC Act requirements are legitimate in the context of meeting
Australia's national and international environmental obligations. Further, the
committee considers that caution is required when considering cost reduction proposals
to ensure they are not counterproductive and do not result in cost cutting
reducing the Commonwealth's capacity to meet its national and international
environmental obligations.
National Environment Commissioner
2.59
The committee is persuaded by the evidence it received to indicate that
Australia's interests would be well served by establishing an independent
National Environment Commission and appointing a National Environment
Commissioner, as recommended by the Hawke report. The Commissioner would be
responsible for improved oversight of environmental protection legislation, and
carry out monitoring, data collection, reporting, audit and enforcement
functions under the EPBC Act. The Commissioner would also provide advice to the
Environment Minister for the purposes of decision making for environmental
impact assessment and approvals processes under the Act, including decision making
on project assessments, strategic assessments and bioregional plans, as
recommended by the Hawke report.
2.60
On this basis the committee believes the Commonwealth government should
reconsider its response to this recommendation of the Hawke report.
Conclusion
2.61
The committee notes the Commonwealth acknowledged that 'significant
challenges emerged in developing approval bilateral agreements that provide
consistency for business and assurance to the community that high standards
will be made and maintained'[75]
and said it 'will introduce legislative reforms to progress its response to the
Hawke review of the Environment Protection and Biodiversity Conservation Act
1999 to further streamline and strengthen environmental regulation'.[76]
The department has confirmed that it is not currently exploring, or negotiating
internally, or with states, options for transferring EPBC Act approval
responsibilities to the states.[77]
Recommendation 1
2.62
Given the need to address a range of issues raised with the committee
and associated with the reform of the Environment Protection and
Biodiversity Conservation Act 1999, the committee recommends that
the bill not be passed.
2.63
However, the committee believes that any streamlining and strengthening
of environmental regulation must only be undertaken in the context of
Australia's national and international obligations. The critically important
role of the Commonwealth, and its ultimate responsibility for ensuring national
and international environmental responsibilities are met, must be paramount in
any legislative review.
Recommendation 2
2.64
The committee recommends that the Minister for Sustainability,
Environment, Water, Population and Communities analyses the evidence before the
committee and prepares legislation to amend the Environment Protection and
Biodiversity Conservation Act 1999 consistent with the issues raised in
this report and which are designed to ensure that the Commonwealth's national
and international environmental obligations continue to be met.
2.65
In this context, the committee also notes the evidence in relation to
the operation of COAG and its reform agenda in relation to national
environmental matters.
Recommendation 3
2.66
The committee recommends that COAG deliberations on national
environmental regulation must be, at all times, underpinned by Australia's
national and international obligations and the objects of the Environment
Protection and Biodiversity Conservation Act 1999.
2.67
The committee notes the recommendation from the Hawke review for the
appointment of a National Environment Commissioner and the creation of an
independent National Environment Commission. The committee is of the view that
the Commonwealth should reconsider its position on this recommendation as the
evidence in support of the recommendation is strong. The adoption of this
recommendation would ensure independent advice to the minister based on
environmental priorities as distinct from advice which promotes and prioritises
business 'efficiency' at the expense of our national and international
environmental obligations.
Recommendation 4
2.68
The committee recommends that the Commonwealth reconsider its position on
the recommendation from the Hawke review for the appointment of a National
Environment Commissioner and the creation of an independent National
Environment Commission.
2.69
The committee expresses concern in relation to the evidence of
significant cuts to state government environmental departments as part of
austerity measures by a number of state governments.
Recommendation 5
2.70
The committee recommends that COAG, as a matter of priority, undertakes
an assessment of the capabilities of state government environment departments
and their capacity to engage effectively with the Commonwealth to protect
matters of national environmental significance. The committee further
recommends that COAG make an assessment as to the implications for reduced
resources in state environmental departments and the dominance of state
planning departments and its implications for protecting matters of national
environmental significance.
2.71
The committee expresses grave concern at the potential for significant
environmental degradation if the policy of competitive federalism results in a
'race to the bottom' on environmental protection in a bid for increased
resource exploitation. In this context, the committee is alarmed at the
statements on competitive federalism by the Premier of Queensland.[78]
2.72
The committee is of the view that competitive federalism will result in
a diminution of environmental outcomes. The committee believes that COAG should
take steps to ensure that competitive federalism does not undermine the
effective operation of the EPBC Act nor our national and international
environmental obligations.
Recommendation 6
2.73
The committee recommends that COAG urgently consider the implications
of competitive federalism in relation to the effective of operation of the Environment
Protection and Biodiversity Conservation Act 1999 and our national
environmental and international environmental obligations.
Senator Doug Cameron
Chair
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