Juli Tomaras, Law and Bills Digest Section

The Environment Protection Biodiversity and Conservation Act 1999 (the Act) establishes a legal framework to, among other things, provide for the protection and management of nationally and internationally important flora, fauna, ecological communities and heritage places, defined in the Act as ‘matters of national environmental significance’ (NES). The Act lists eight matters of NES, whose importance lies in the fact that proposed actions, which are likely to have a ‘significant impact’ on any of the listed matters of NES, may require assessment and Commonwealth approval prior to commencement. Similarly acting as a trigger, approval is required for any action that takes place on, or is likely to affect Commonwealth land, in terms of having a ‘significant impact on the environment’. The list of matters of NES may be added to by way of regulation.

Review of the Act after ten years of operation

The statutory independent review was undertaken by Dr Allan Hawke, who was supported by a panel comprising Professor Tim Bonyhady, Professor Mark Burgman, Paul Stein and Rosemary Warnock. In addition to examining the operation of the Act and the extent to which its objectives had been achieved, the review assessed the appropriateness of current matters of NES, as well as the effectiveness of the biodiversity and wildlife conservation arrangements set out in the Act.

The final Report of the Independent review of the Environment Protection and Biodiversity Conservation Act 1999 (The Hawke Review) was tabled by the Environment Minister on 21 December 2009. The Hawke Review made 71 primary recommendations, which were informed by feedback from professionals and the broader community. Public comments were broadly supportive of the Act and there was general agreement that the Commonwealth has a legitimate and central role in regulating impacts on matters of NES and protecting Australia’s environment.

The Government provided an undertaking that it would consider the findings of the review, though declining to commit to a recommended greenhouse gas trigger. However, the improved position of the Greens in the Senate may temper this stance, and inspire a willingness to be more broadly receptive to amendments designed to effectively deal with greenhouse gas issues.

The Hawke Review recommended an integrated reform package revolving around nine core elements. Some of the core elements are described below.

Modernising and making the Act more usable

The Hawke Review proposed redrafting and restructuring the Act to:

• better reflect the Australian Government’s role, streamline approvals, and clarify arrangements earlier in the planning process
• make more effective use of strategic assessments, bioregional planning and approvals
• remove unnecessary duplication of process, and
• simplify language and rename it the Australian Environment Act.

New matters of national environmental significance

Other proposals were to create a new matter of NES for ‘ecosystems of national significance’, and introducing an interim greenhouse trigger, with a threshold of at most 500 000 tonnes of carbon dioxide equivalent emissions, which would cease on commencement of a Carbon Pollution Reduction Scheme.

Establishing an independent National Environment Commission and Commissioner

This recommendation emerged in response to a general dissatisfaction with the confidence in the quality and independence in decision making. It is envisaged that the Commission would take on the functions of providing the Government with independent expert advice on project approvals, strategic assessments, bioregional plans and other statutory decisions. It may also perform the role of monitoring, compliance and auditing activities under the Act.

A more efficient Environmental Impact Assessment Regime

In advancing this goal, the Review committee felt that more strategic policy guidance needed to be developed to better clarify what may constitute a significant impact on a matter of NES.

The issue of access to environmental data and information and the desire to increase confidence in the quality of decisions was also raised in this context. The assessment and approvals process involves the Minister relying (at least in part) on information provided by the proponent and environmental consultants. In view of this, the development of an Industry Code of Conduct was recommended for consultants supplying information for the purposes of the environmental impact assessment and approval under the Act.

Strategically widening the Minister’s power

This would better enable the Minister to:

• make decisions in accordance with environmentally sustainable development principles
• be able to consider the impacts on all protected matters affected by the project, notwithstanding their significance
• take into account the ‘whole of the environment’ in deciding whether to approve an action, and
• have sufficient authority to seek information on project alternatives.

Accessibility of information and transparency of decision-making

It was recommended that in the interests of transparency and confidence in decision-making, the advice from the Act’s statutory advisory bodies should be made publicly available at the time the Minister makes the relevant decision. This would include: audit reports, expert reports taken into account by the Minister when making the decision, and statements of reasons for all decisions made by the Minister.

Review mechanisms and access to the courts

A recurrent complaint raised in public submissions was the limited number of decisions under the Act that can be the subject of merits review. Environmental groups were particularly concerned that in practical terms, the availability of judicial review was a rather ineffectual tool where the decision is (allegedly) flawed from a policy, rather than legal, perspective. However, the report recognised that the Act seems to be geared towards delivering timely threshold decisions as to whether a project triggers the assessment and approval process under the Act, and that the application of merits review in such cases may have a delaying effect.

Taking into account both perspectives, a recommendation was made that merits review should be extended to decisions by the Minister as to controlled actions and also as to the assessment process. Furthermore, legal standing should be extended to include all persons who make formal public comment during the decision-making process. Finally, orders for security for costs and party-party costs should be limited in such public interest proceedings.

Library publications and key documents

Department of Sustainability, Environment, Water, Population and Communities, Independent review of the Environment Protection and Biodiversity Conservation Act 1999, http://www.environment.gov.au/epbc/review/publications/final-report.html