1.

Matters of national environmental significance (MNES) should be focused on Commonwealth responsibilities for the environment: (a) water MNES should be amended to apply only to cross‑border water resources; (b) regulatory arrangements for nuclear MNES should be aligned with those of Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) (p. 48).

The government will amend the water trigger to ensure appropriate management and protection of water resources from all forms of unconventional gas.

The scope of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development will be broadened to enable all states and territories to access independent expert advice.

The government will harmonise regulatory requirements and codes with the ARPANSA’s standards (p. 15).

The proposed amendment to the water trigger (expansion to all forms of unconventional gas) is not consistent with Recommendation (Rec) 1. The expansion of the scope of the water trigger was, however, recommended by the Scientific inquiry into hydraulic fracturing in the Northern Territory (the Pepper Inquiry) (Rec 7.3, p. 118).

On 15 May 2022, the minister confirmed that ‘the extension of the water trigger would be part of the package of environmental laws’ put before the Parliament (p. 4).

2.

National Environmental Standards (NES) recommended by this review should require development proposals to: (a) explicitly consider the likely effectiveness of avoidance or mitigation measures on nationally protected matters under specified climate change scenarios, and (b) transparently disclose the full emissions of the development (p. 48).

The government will require reporting of estimates of emissions expected to be generated as a result of the activity (Scope 1 emissions) and those from the indirect consumption of an energy commodity (Scope 2 emissions) and related management actions over the life of the project (p. 14).

Project proponents will be required to disclose how their project aligns with Australia’s national and international obligations to reduce emissions (p. 2).

The changing climate will be a mandatory consideration in environmental planning approaches (for example, regional and conservation planning) (p. 2).

The NPP states that the Threatened Species Scientific Committee will provide advice in 2023 as to whether a Threat Abatement Plan for the key threatened process ‘Loss of climatic habitat caused by anthropogenic emissions of greenhouse gases’ would be a feasible, effective and efficient way of addressing threats from climate change (p. 15).

On 8 December 2022, the minister said, ‘we support the Samuel’s recommendation that proponents of large projects be required to publish their lifetime, domestic carbon dioxide emissions. Proponents will also be required to disclose what they will do to manage or offset their emissions, in line with Australia’s climate targets’ (p. 11). However, this will not extend to scope 3 emissions which are indirect emissions generated in the wider economy (p. 3).

The minister said, ‘our goal is to integrate climate considerations into national environmental law, without duplicating existing policies for reducing greenhouse gas emissions – such as the safeguard mechanism’ (p. 11).

In April 2023, as part of the government’s safeguard mechanism reforms, amendments to the Climate Change Act 2022 require the Minister for the Environment to notify the Minister for Climate Change and Energy, the Climate Change Secretary and the Climate Change Authority of the approval under the EPBC Act of an action, or expansion of an existing controlled action, which is or is likely to result in an increase in scope 1 emissions of an existing, or a new, designated large facility. This may trigger a reconsideration of whether the safeguard emissions and net safeguard emissions are declining consistently with the safeguard outcomes specified in section 3 of the National Greenhouse and Energy Reporting Act 2007.

3.

The EPBC Act should be immediately amended to enable the development and implementation of legally enforceable NES. Activities and decisions made by the minister, or those under an accredited arrangement, should be consistent with NES. The Act should provide a specific power for the minister to exercise discretion to make a decision that is inconsistent with MNES (p. 53).

The government will introduce legislation to establish standards in 2023 (p. 11); this will include a process for making, implementing, and reviewing standards (p. 37).

The initial NES will be:

• matters of national environmental significance

• First Nations engagement and participation in decision-making
• community engagement and consultation
• regional planning
• environmental offsets.

Once the EPA and Data Division are established, subsequent NES will be:

• data and information
• compliance and enforcement (p. 12).

The legislation will specify that no standard can be amended to reduce environmental protection, only improve it (p. 11).

The independent EPA will apply standards and ensure compliance with conditions of approval. The Data Division will provide assurance that the objects of national environment law and outcomes of the NES are being achieved (p. 37).

At Senate Estimates on 9 March 2023, departmental officials indicated the NES would be legislative instruments made under an Act that gives the minister the power to make the standards; compliance with the standards will be monitored by the EPA (p. 25).

At Senate Estimates on 23 May 2023, departmental officials said development of NES ‘involves a significant consultation program and drafting program that we expect to happen over the course of the next two years as we move this year towards releasing the package for consultation’ (p. 60).

A targeted working group (20 members) and a broader reference group (50 members) were formed in early 2023 to develop the standards.

4.

Parts 3 to 10 of the EPBC Act should be completely overhauled to deliver more effective environmental protection and management, accelerate achievement of environmental outcomes and improve the efficiency of the application of NES to decision-making (p. 54).

The government will ensure statutory decision‑making is in line with the NES (p. 37).

See Rec 3 in regard to establishing NES.

In an interview on 15 May 2023, the minister indicated that a package of legislation would be released as exposure drafts in the second half of 2023, for introduction to the Parliament at the end of 2023 or the beginning of 2024.

At Senate Estimates on 23 October 2023, departmental officials could not confirm when the package of bills would be introduced (pp. 90 & 94).

According to departmental officials, there will be 4 bills: the first repealing and replacing the EPBC Act, a second establishing Environment Protection Australia, a third separating out the Commonwealth national parks provisions, and a fourth providing transitional and consequential provisions.[1]

5.

The EPBC Act should require decision-makers to respectfully consider Indigenous views and knowledge: (a) the Indigenous Advisory Committee (IAC) should be replaced with the Indigenous Engagement and Participation Committee, with a specific mandate of refining, implementing and monitoring the NES; (b) the NES for Indigenous engagement and participation in decision-making should be adopted; (c) the Act should be amended to require the minister to transparently demonstrate how Indigenous knowledge and science is considered (p. 66).

The NES for First Nations engagement and participation in decision-making will be co-designed with the IAC as a priority.

The government will engage with First Nations peoples as part of overall reforms to co-design standalone cultural heritage legislation and incorporate and protect First Nations data and knowledge (p. 38).

The government will work to develop a strategic, effective, meaningful and culturally informed approach to inclusion of First Nations knowledge in listing assessments, conservation planning and threat abatement for species and ecological communities. It will also consider how species of cultural significance are considered in environmental and heritage protection processes (p. 14).

The IAC was established in 2000 under the EPBC Act. It is an advisory body and generally not a consultative mechanism, however that may be requested at times.

On 29 November 2021, the Australian Government entered into a Partnership Agreement with the First Nations Heritage Protection Alliance (FNHPA) in relation to the modernisation of Indigenous cultural heritage protection. Announcing the agreement, the minister said, ‘[t]his partnership establishes a joint working group of government and alliance representatives ... [which] will consult widely with industry, with the community, with the states and the territories, and importantly, with Indigenous Australians to develop options on the reforms that are required’ (p. 2).

Stage 1 consultations ran from March to June 2022 (see the Implementation plan, Stage 1 discussion paper). A Stage 1 directions report and Options paper informed Stage 2 consultations in late 2022 and early 2023.

The Options paper outlines 3 options:

• overarching federal standalone legislation and repeal of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act)
• federal accreditation of state and territory legislation where mandatory national standards are met, and repeal of the ATSIHP Act
• ‘model’ legislation, and exemption from the operation of the ATSIHP Act once enacted.

On 24 November 2022, the minister and the FNHPA extended and expanded the Partnership Agreement ‘to work in a genuine co-design partnership ... to reform our cultural heritage laws’. The Partnership Agreement proposes finalising ‘a recommendation to the Minister for comprehensive stand-alone legislation to better manage and protect First Nations cultural heritage’ by 30 May 2023 and developing a plan to conduct further ‘consultation on policy and implementation detail from April to December 2023’ (p. 3). The agreement runs to 30 June 2024.

Relatedly, in February 2023, the DCCEEW released the Interim Engaging with First Nations People and Communities on Assessments and Approvals under the Environment Protection and Biodiversity Conservation Act 1999 to assist project proponents in understanding  statutory obligations and the department’s expectation of proponent’s engagement with First Nations people and communities under the EPBC Act.

6.

The department should take immediate steps to invest in developing its cultural capability to build strong relationships with Indigenous Australians and enable inclusion of their knowledge (p. 66).

The department is taking immediate steps to develop the cultural capability of its staff (p. 38).

In May 2023, the department established a First Nations Branch to, among other things, support the cultural capability of staff (pp. 12 and 101).

7.

The government should commission an immediate comprehensive review of national-level cultural heritage protections and draw upon best practice frameworks (p. 70).

The government will work with the FNHPA to co‑design standalone First Nations cultural heritage legislation (p. 38).

The government has expressed a commitment to introduce standalone cultural heritage legislation (see the minister’s National Press Club Address, p. 12; Senate Estimates, p. 47).

See Rec 5.

8.

Through the Director of National Parks, the government should immediately commit to working with Traditional Owners to co-design reforms for joint management (p. 72).

The government and the Director of National Parks will work with Traditional Owners to review the role, function and purpose of the Director of National Parks, including consideration of new legislative models that allow for more direct management of Commonwealth National Parks by Traditional Owners (p. 38).

Reforms will include changes to the legislative approach to support the creation and management of other Commonwealth Reserves and potential updates to the legislative and regulatory framework creating zoning definitions for Australian Marine Parks (p. 33).

The Director of National Parks corporate plan 2022–23 includes ‘[i]mproving Joint Management partnerships with Traditional Owners in our jointly managed national parks’ as a cross cutting key activity (p. 32).

The government has committed to doubling the number of Indigenous Rangers by the end of the decade to 3,800 (p. 12).

9.

Immediate amendments should be made to the EPBC Act to align it with modern, best practice drafting guidance and to implement the NES, bilateral agreements and independent audit and oversight mechanisms (p. 80).

The government will improve the legislative framework to make the new Act easier to understand and work with, and enable the establishment of NES, the EPA and regional planning (p. 38).

Sec Rec 4 in regard to the timeframe for the introduction of new legislation.

See Rec 3 in regard to establishing NES.

10.

The EPBC Act should be comprehensively reworked to fully implement the reforms recommended by the review and deliver an effective legislative framework, including a redraft and restructure of the Act to remove inconsistency with other Commonwealth legislation and improve operational efficiency. This may involve creating separate pieces of legislation for the key functional areas covered by the EPBC Act (p. 80).

The government will simplify, modernise, and streamline processes and clarify information requirements. It will also involve the removal of prescriptive processes and unused assessment pathways to reduce complexity and improve flexibility for proponents and regulators (p. 39).

Environmental laws will be simplified and streamlined, including by:

• simplifying and standardising public comment processes, including allowing modern methods for publishing information
• clarifying the information that must be considered in decision-making
• moving to outcomes-based requirements through NES
• moving process information into regulations or guidelines wherever possible to enable faster and more efficient maintenance of the regulatory system
• rationalising assessment pathways
• improving the operation and effectiveness of strategic assessments (pp. 23–24).

Sec Rec 4 in regard to the timeframe for the introduction of new legislation.

See Rec 3 in regard to establishing NES.

The minister has said there would be ‘a quite fundamental rewriting of our environmental laws’ (p. 1).

11.

The government should increase the transparency of the operation of the EPBC Act, including by improving the accessibility and availability of information, and amending the Act to require publication of all information relevant to, and the reasons for, decisions made under the Act (p. 89).

The government will provide greater transparency to the community and businesses about environmental decision-making, including the data and information considered when making decisions (p. 39).

While the NPP refers to a Data Division, in the May 2023–24 Budget, the government provided $51.5 million over 4 years from 2023–24 (and $4.5 million per year ongoing) to establish Environment Information Australia (EIA). EIA would ‘provide an authoritative source of high‑quality environmental information’ (p. 77). A DCCEEW factsheet states, ‘as the custodian for national environmental information, [EIA] will ensure consistent, reliable and broad access to environmental data across governments, project proponents and scientists’ (p. 2).

12.

The EPBC Act should be amended to recast the statutory committees by creating 5 separate committees, with the Ecologically Sustainable Development Committee being an overarching committee whose function is to provide advice on the NES, planning and implementation and coordination across all the committees (p. 92).

The government will review the terms of reference of the 4 existing statutory committees to ensure alignment with the objectives of the new Act (p. 39).

The 4 existing statutory committees are:

• Indigenous Advisory Committee
• Independent Expert Committee on Coal Seam Gas and Large Coal Mining Development
• Threatened Species Scientific Committee
• Australian Heritage Council.

13.

The EPBC Act should retain the current extended standing provisions in section 487 (‘standing’ refers to the legal right of a person or organisation to seek judicial review of an administrative decision). The EPBC Act should be amended to provide for limited merits review for development approval decisions with restrictions (p. 95).

The government will not introduce a right to limited merits review of decisions. Legislating NES and establishing an EPA and the Data Division are better ways to improve, and provide public assurance, about the quality and consistency of decision‑making (p. 40).

The government does not agree with this recommendation.

14.

The EPBC Act should be immediately amended to provide confidence to accredit state and territory arrangements to deliver single-touch environmental approvals in the short term; this should be underpinned by NES and subject to rigorous oversight by an independent Environment Assurance Commissioner (p. 103).

The government will improve accreditation arrangements, including through setting more robust requirements for decision-making. Accredited assessment will be subject to NES and the same strong assurance and oversight as other assessment processes under the EPA (p. 40).

A decision to accredit a state or territory will be made by the minister (p. 3).

See Rec 3 in regard to establishing NES.

The minister confirmed in her July 2022 National Press Club Address that the government would establish a new EPA (p. 9).

The government’s response will require revision or renegotiation of existing bilateral agreements between the states and territories. The NPP notes that ‘[a]s accreditation will take time, and not all jurisdictions will seek or satisfy the requirements for accreditation, the Commonwealth, through the EPA, will continue to play a role in environmental decision-making’ (p. 18).

15.

The level of environmental protection afforded in Regional Forest Agreements (RFAs) should be increased. Government should ensure that RFAs are consistent with the NES. The EPBC Act should be amended to replace the RFA ‘exemption’ with a requirement for accreditation against NES (p. 108).

The government will work with stakeholders and relevant jurisdictions towards applying NES to RFAs to support their ongoing operation together with stronger environmental protection (p. 40).

See Rec 3 in regard to establishing NES.

The minister has said the ‘government will begin a process of applying our new National Environment Standards to Regional Forestry Agreements. We will consult with stakeholders on how this will be done’ (p. 12).

According to departmental officials, the government envisages ‘that the application of environmental regulation at the federal level will be the responsibility of the EPA ... But any [further regulation] specific to the forestry sector would be the purview of the agriculture, fisheries and forestry portfolio’ (p. 64).

16.

The accreditation model should be applied to arrangements with other Commonwealth agencies, where they demonstrate consistency with the NES and subject themselves to transparent independent oversight. This includes arrangements for the minister to provide advice on certain actions (ss. 160–164), and approvals by the National Offshore Petroleum Safety and Environment Management Authority (NOPSEMA) and Australian Fisheries Management Agency (p. 109).

All accredited parties will be subject to the same requirements under NES. This will include state, territory and Commonwealth processes and management frameworks.

The EPA will assure and provide independent oversight over decision-making under national environmental law and the NES (p. 41).

See Rec 3 in regard to establishing NES.

Accreditation arrangements include:

• bilateral agreements with each state and territory
• RFAs with NSW, Tasmania, Victoria and Western Australia
• strategic assessments under Part 10 of the EPBC Act, including those allowing NOPSEMA to approve environment plans in relation to offshore oil and gas
• certain decisions of Commonwealth agencies where the minister’s advice must be obtained, including the provision of foreign aid, managing aircraft operations in airspace, adopting or implementing a major development plan for an airport, sea dumping, hazardous waste and sea installations.[2]

17.

A NES should be developed for actions impacting on Commonwealth land and Commonwealth actions to provide a national benchmark for effective environmental protections. The Commonwealth should encourage other jurisdictions to adopt the standard (p. 110).

The government will set NES. An overarching standard for all MNES will be established ahead of a standard for actions on Commonwealth land (p. 41).

See Rec 3 in regard to establishing NES.

18.

Commonwealth assessment pathways should be rationalised to enable a risk-based approach to assessments that is proportionate to the level of impact on matters protected by the EPBC Act (p. 113).

The government will rationalise assessment pathways and ensure that assessment is proportionate to the level of impact on MNES. Risks to MNES will also be addressed through regional plans (p. 41).

The assessment pathway refers to the assessment approach for a controlled action (see Division 3 of Part 9, EPBC Act). The minister (or their delegate) determines the assessment approach for each controlled action.

According to departmental data provided to the Samuel Review, between 2014–15 and 2019–20, 56% of controlled actions were assessed based on ‘preliminary documentation, with further information’, 25% by a bilateral process and 13% by an accredited process (p. 112).

19.

The implementation of Commonwealth assessments should be supported by providing clear guidance, modern systems, and appropriate cost recovery (p. 113).

The government will improve the regulatory requirements for proponents and foster faster and better decision-making (p. 41).

The simplifying and streaming will include:

• simplifying and standardising public comment processes, including allowing modern methods for publishing information
• clarifying the information that must be considered in decision-making
• moving to outcomes-based requirements through NES
• moving process information into regulations or guidelines wherever possible (p. 23).

The NPP states that new environmental laws will enable recognition of ‘jurisdictional assessments and the listing of threatened species and ecological communities’ (p. 24). The NPP also states the following will be considered:

• aligning listing processes with international best practice
• considering the Common Assessment Method in the development of NES
• enabling the TSSC to advise the minister on whether assessments prepared by other jurisdictions comply with the Common Assessment Method (p. 24).

The NPP states that the government will ‘implement activity-based costing and update cost recovery arrangements for environmental assessment and approvals’ (p. 24).

In December 2022, the DCCEEW began a consultation process for ‘Cost recovery under the EPBC Act’. The Consultation paper states ‘the current cost recovery model only recovers approximately 10 percent of the Department’s costs related to the administration of the EPBC Act’ (p. 8).

The Consultation paper suggests that a new fee structure, including a potential levy, would be in place in the 2023–24 financial year (p. 7). At the time of writing, submissions to the Consultation paper are not available on the DCCEEW’s Consultation hub.

20.

The EPBC Act should be amended to ensure wildlife permitting requirements align with Australia’s international obligations under the Convention on the Conservation of Migratory Species and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (p. 116).

The government will streamline and improve wildlife trade permit requirements to retain consistency with international obligations, including welfare standards for live specimens (p. 42).

The NPP notes there are inadequate definitions of ‘zoos’ and ‘research institutions’ (p. 24).

While the Samuel Review was in train, the then Department of Agriculture, Water and the Environment commissioned KPMG to undertake an Independent review into the regulation of the export of native and exotic birds. The Secretary of the Department accepted the recommendations of the review. This was followed by an Independent assessment into options for a national registration scheme for native and exotic live birds in Australia (ThinkPlace, 2021).

21.

Part 13A Division 2 and 5 of the EPBC Act, the EPBC Regulations and associated definitions should be amended to streamline and reduce the regulatory burden on wildlife trade permitting processes and to enable proportionate compliance and enforcement responses (p. 116).

The government will reduce unnecessary prescription and administrative processes for wildlife trade permitting, ensuring ongoing protection of species is maintained and permit requirements remain consistent with international obligations (p. 42).

22.

Reduce instances under the EPBC Act and EPBC Regulations where wildlife trade permitting may be subject to abuse by applicants (p. 116).

The government will improve the effectiveness of wildlife trade regulation by improving compliance and enforcement and reducing the potential for wildlife permits to be misused. A fit and proper person test will also be applied (p. 42).

23.

By statutory appointment, immediately establish the position of Environment Assurance Commissioner with responsibility to oversee audit of decision-making by the Commonwealth under the EPBC Act and of accredited parties under an accredited arrangement. The Commissioner should also provide an annual report to Parliament on the performance of the Commonwealth and accredited parties against NES (p. 125).

These functions will be performed by the EPA, which will make decisions in accordance with NES and assure accredited parties and instruments apply the standards.

The Data Division will develop and implement a monitoring, evaluation and reporting framework to provide assurance that the system, including the EPA, is achieving the objectives of the new Act and outcomes of NES (p. 42).

The NPP states the EPA will:

• undertake regulatory and implementation functions under the EPBC Act and other relevant Commonwealth laws including laws relating to sea dumping, ozone protection and synthetic greenhouse gas management, hazardous waste, product emissions standards, recycling and waste reduction, and underwater cultural heritage
• undertake assessments and make decisions about development proposals, including approval conditions
• issue permits and licences
• undertake compliance and enforcement activities
• establish and publish its compliance and enforcement policy
• provide assurance, and advise the minister, on whether accredited parties and instruments apply the standards (for example, NES)
• be established as a statutory Commonwealth entity with its own budget (including funding from cost recovery)
• led by a Chief Executive Officer, appointed for a fixed term and removable only in specified circumstances
• report publicly on its performance
• publish annual reports, which the minister will be required to table in Parliament (pp. 28–29).

The EPA will not, however, have a statutorily appointed board (p. 29).

The NPP also indicates the minister will retain a ‘call-in’ power and ‘will have the power to approve proposed developments that have an unavoidable negative impact on MNES but only where this is clearly in the national interest’ (p. 29).

The NPP and early ministerial statements refer to an Environment Protection Agency. In the May 2023–24 Budget, the entity is designated Environment Protection Australia (p. 77).

The minister has said, ‘[t]he EPA will be governed by its mission to ensure a nature positive Australia, while also factoring in social and economic considerations’ (p. 10).

The minister has repeatedly referred to the EPA as a ‘strong [or tough] cop on the beat’; for example, ‘the EPA will be a tough cop on the beat. It will transform our system of environmental approvals. It will be transparent and independent. It will make environmental assessments, decide project approvals and the conditions attached to them, and it will make sure that those conditions are being followed on the ground’ (p. 1).

The minister has said, ‘the minister will be able to override an EPA decision, but there’s some important safeguards here as well. The EPA original advice will have to published. The minister’s decision to override in the national interest will have to be transparent and published as well’ (p. 2).

The May 2023–24 Budget provided $121.0 million over 4 years from 2023–24 to establish the EPA (p. 77). At Senate Estimates, departmental officials alluded to a machinery of government process (p. 73).

The DCCEEW has said ‘[t]he staffing profile of EPA will comprise existing [DCCEEW] staff undertaking regulatory functions ... In addition to existing departmental staff transferring to EPA, new staff will undertake critical enabling and corporate functions to support the new entity’.

24.

The EPBC Act should be amended to replace bilateral agreement processes with robust and efficient accreditation processes, based on NES. This should include the opportunity for the Australian Parliament to disallow a proposed accreditation, the unfettered right for the minister to make a decision, and scheduled formal review (p. 125).

The government will improve accreditation arrangements and ensure robust oversight of decision-making by accredited parties. Accredited arrangements will be subject to NES, strong assurance, and independent oversight. The accreditation framework will reflect the proposals set out in the recommendation (p. 43).

See Rec 3 in regard to establishing NES.

Sec Recs 14 and 16 in regard to accreditation arrangements.

On 9 June 2023, Commonwealth, state and territory environment ministers ‘agreed to identify where, with better harmonisation of environmental assessments, there is opportunity for reduced timeframes, stronger protections and to make better and faster decisions’ (p. 2).

25.

The EPBC Act should be amended to support more effective planning that accounts for cumulative impacts and past and future key threats and build environmental resilience. This includes development of strategic national plans, regional recovery plans, ecologically sustainable development plans, and strategic assessments (p. 137).

The government’s approach emphasises this recommendation and focuses on regional planning. Conservation plans will also be delivered via a regional framework with Areas of High Environmental Value, reducing the cumulative impacts on threatened species and ecological communities.

The first NES will include a Regional Planning Standard to support the development of regional plans (p. 43).

According to the NPP, ‘the government aims to complete the first round of regional planning by 2028’ (p. 20).

The NPP indicates that regional plans will occur alongside strategic plans (p. 24). The NPP states the government will improve the operation and effectiveness of strategic assessment (p. 24).

The minister has said, ‘[a] new system of regional planning will allow Australia to fast-track sensible projects in robust places, while stopping damaging projects in fragile places’ (p. 6). The minister went on to describe regional plans using a three-level ‘traffic light’ system (p. 7). This will provide for areas of high environmental value (red) where development will largely be prohibited, areas of moderate environmental value (orange) where development will be allowed subject to an approval process and any agreed rules, and development priority areas (green) where development will be allowed without a separate Commonwealth environmental approval (NPP, pp. 19–20).

At Senate Estimates on 9 March 2023, departmental officials expressed a view that regional plans would support faster outcomes because they ‘would be able to provide greater information to potential proponents earlier in their process about what was important' (pp. 25–26).

On 22 December 2022, the minister jointly announced with the Queensland Minister for the Environment and the Great Barrier Reef that a regional plan would be developed for southeast Queensland. Additional regional plans will be developed for rare earth minerals and renewable energy. However, regions of interest are yet to be determined (p. 1).

On 22 December 2022, the minister jointly announced with the NSW Minister for Lands and Homes that the NSW Government was working with the Australian Government to develop initial regional plans in the Northern Rivers, Central Coast, Hunter-Central Coastal Renewable Energy Zone and NSW component of the Loxton‑Parilla Sands Basin.

26.

The Commonwealth should establish a dedicated program to develop and implement strategic national plans and regional plans with a focus on key Commonwealth priorities (p. 137).

The government will remove overly prescriptive processes and duplication to streamline and strengthen conservation planning.

Regional plans will identify areas necessary for the protection, conservation and repair of environment and heritage values. The plan will also guide ecologically sustainable development, harmonise requirements between Commonwealth and state or territory regulators and reduce development approval times (p. 44).

See Rec 25 in regard to regional plans.

Launching the NPP, the minister said, ‘[r]egional plans will also help us address the problem of cumulative impacts, because we won’t be dealing with each project in isolation – we’ll be considering how they connect and overlap’, (p. 7). The minister said, ‘regional plans are something the federal government will need to work on with the states and territories, and with local government as well’ (p. 7).

27.

The Commonwealth should reform the application of environmental offsets under the EPBC Act to address decline and achieve restoration (p. 141).

A NES for Environmental Offsets will work alongside the MNES Standard to significantly improve environmental outcomes from offset arrangements (p. 44).

In announcing the NPP, the minister said new offsets will be embedded in legislation and set out a hierarchy of action: ‘First: to avoid harm to the environment. Second: to reduce or mitigate environmental damage. Third: to identify offsets within the region that deliver a net gain for the imperilled plants or animals affected by the project. And as a last resort: to make a conservation payment to enable a better environmental outcome – one that leaves nature better off overall’ (p. 9).

The potential use of proposed biodiversity certificates for offsetting purposes has been one of the most controversial aspects of the government’s proposed nature repair market (see: Bills digest (pp. 24–26); Senate Inquiry, pp. 60–61)).

Departmental officials have said ‘[c]ertificates under the [proposed] nature repair market won’t be able to be used as offsets unless and until there is the offset standard that is being created. That offset standard is a net gain standard’ (p. 51).

On 29 June 2023, the minister announced an audit of ‘over 1,000 offset sites approved under [the EPBC Act] to make sure developers are meeting their obligations’. Remarkably, the minister said, ‘[u]ntil recently there has been no reporting to track whether developers are actually delivering on their responsibilities’.

At a Senate inquiry, departmental officials said the audit was being undertaken by the department’s compliance and enforcement branch (p. 54). No terms of reference or timeline are available.

28.

The government should formally investigate and consider pathways to foster private sector participation in environmental restoration (p. 128).

The government will establish a nature repair market. The nature repair market will encourage private investment in environmental restoration and management. The government will investigate barriers and incentives for the protection and restoration of biodiversity on private land (p. 44).

On the release of the 2021 SoE Report, the minister said, ‘[w]e need to work with industry and philanthropic partners … I want to look at ways to make these investments easier…’ (p. 11).

On 26 August 2022, the minister jointly announced with the Prime Minister that the government would create a biodiversity certificate scheme, allowing Australia to develop a ‘Green Wall Street’. The department consulted on a fact sheet before releasing an exposure draft of the Nature Repair Market Bill on 23 December 2022.

On 29 March 2023, the minister introduced the Nature Repair Market Bill 2023 to the House of Representatives. See the Bills digest for more information.

The Bill passed the House with amendments on 21 June 2023.

The Bill was referred to the Senate Standing Committee on Environment and Communications for inquiry and report by 1 August 2023. However, following a public hearing on 30 June 2023, during which aspects of the proposed market were heavily criticised, the reporting date was extended to 1 November 2023. On 23 October 2023, the reporting date was extended to 18 April 2024.

In Senate Estimates, departmental officials reported strong interest from the private sector in a market, ‘but, without rules, a high-integrity system, a public registry system and a transparent process, there's unwillingness to invest at this stage until those arrangements are in place’ (p. 23).

29.

Reforms should be implemented to ensure compliance and enforcement functions by the Commonwealth, or an accredited party, are strong and consistent (p. 153).

The EPA will be responsible for undertaking regulatory functions and implementing new environmental laws.

To facilitate the accreditation of other parties, a Standard for Compliance and Enforcement will be developed once the EPA is established.

Accredited parties will be subject to their compliance with all standards, and full disclosure of environmental performance data. All accredited arrangements will be subject to strong assurance, and independent oversight (p. 45).

See Rec 3 in regard to establishing NES.

See Rec 23 regarding establishment of the EPA.

Launching the NPP, the minister has said NES ‘will be legally enforceable, creating positive requirements for decision making. They will describe the outcomes we want – and our new Environment Protection Agency will make sure those outcomes are being delivered on the ground’ (p. 5).

At a Senate Estimates hearing on 23 May 2023, departmental officials said, ‘[t]he point of the EPA is that it will undertake the Commonwealth's environmental regulatory responsibilities’ (p. 73). This will extend to the department’s regulatory functions as specified in other Commonwealth Acts. Officials said, ‘the department is undertaking preliminary work around bringing together the functions that will ultimately transfer into an EPA once it is created as an independent entity’ (p. 73).

30.

The Commonwealth should immediately increase the independence of and enhance Commonwealth compliance and enforcement. There should also be an increase in the transparency and accountability of activities, including a clear public register of activities, offsets and staff conflicts of interest (p. 153).

The government will establish the EPA as a strong independent environmental regulator with a mission to improve trust and transparency in the operation of national environmental laws.

A National Environmental Offsets System will be released by the end of 2022, to track and report on the use and delivery of environmental offsets.

The government will provide full transparency to the community and businesses on environmental decision-making (p. 45).

See Rec 23 in regard to establishing the EPA.

In launching the NPP, the minister said, ‘[p]eople don’t trust the system because it’s weak, but also because it’s opaque. It’s not clear whether environmental conditions placed on projects are being enforced on the ground. The EPA will address this trust deficit’ (p. 10).

In late 2022, an Offsets Register was added to the EPBC Act Public Portal. The Register purports to list all approved projects since the commencement of the EPBC Act that have offset conditions. At the time of writing, offset conditions could be viewed; however, offset sites and offset documents were often not available due to the review announced by the minister on 29 June 2023.

31.

The Commonwealth should initiate immediate improvements to the environmental information system by: (a) adopting a NES for data and information; (b) appointing an interim supply chain Custodian; (c) designating a set of national environment information assets; (d) expanding the existing work with jurisdictions on digital transformation of environmental assessments; (e) commencing an overhaul of the department’s information management systems (p. 174).

The government agrees with the report’s recommendations and is committed to quality, accessible and transparent data. The government will ensure decisions are based on the best available data, information, and advice, and increasing the transparency of decisions.

A Standard for Data and Information will be developed once the Data Division is established.

The government will establish a Data Division, so an interim data supply chain custodian is not required.

New information systems are being built to better coordinate Commonwealth, state and territory decision-making and allow proponents to submit and track their applications online (p. 46).

In launching the NPP, the minister said she would create a ‘new data division in our department, which will be responsible for integrating new and existing information, making it accessible and searchable, while reporting the progress we’re making against our environmental goals’ (p. 10).

The NPP states ‘a Chief Environmental Data Officer [CEDO] will be appointed to lead the Data Division, with clear responsibilities and powers provided for in legislation’ (p. 29). The CEDO will be responsible for developing and implementing a National Environmental Data Strategy (p. 29).

On 2 June 2023, when launching a ‘global search for the head of Environment Information Australia’, the minister said EIA would be ‘an agency that will survey, monitor and publicise local information on threatened species, vulnerable ecosystems, and the state of our environment’ (pp. 1–2).

In a speech to the Global Biodiversity Information Facility on 18 October 2023, the minister said EIA would do three things: ‘deliver better information to everyone involved in the environmental approvals system', provide data to ‘support our implementation of regional planning and conservation’, and ‘offer regular reporting on our national goals and the state of our environment’ (p. 4).

As at 3 October 2023, EIA is shown as a Division of DCCEEW.

32.

The Commonwealth should build, maintain, and improve an efficient environmental information supply chain to improve the effectiveness of the EPBC Act (p. 174).

The government will establish a Data Division within DCCEEW to oversee and coordinate improvements to Australia’s environmental data and information, and act as the custodian of the national environmental supply chain (p. 46).

See Rec 31 in regard to establishing a Data Division.

33.

The Commonwealth should establish a NES for environmental monitoring and evaluation of outcomes and assign the Ecologically Sustainable Development Committee responsibility for the oversight and management of monitoring, evaluating and reporting on the outcomes of the EPBC Act (p. 181).

The Data Division will develop and implement a monitoring, evaluation and reporting framework to provide assurance that the objects of the new Act and outcomes of NES are being achieved (p. 47).

Sec Rec 12 in regard to reforming statutory committees.

See Rec 31 in regard to establishing a Data Division.

34.

The EPBC Act should be amended to require formal monitoring, evaluation and reporting on the effectiveness of the Act in achieving its outcomes. In addition, an annual statement should be provided evaluating environmental performance under the Act, how the outcomes for MNES are tracking, and making recommendations for adjustment (p. 181).

The government will establish standards and ensure that decision-making processes under national environmental law are effective and transparent.

The Data Division will provide publicly available monitoring and reporting on environmental outcomes (p. 47).

See Rec 31 in regard to establishing a Data Division.

The NPP states ‘[t]he Data Division will develop and implement a monitoring, evaluation and reporting framework to provide assurance that the system as a whole, including the EPA, is working to deliver environmental and heritage outcomes and achieving the objectives of national environmental law’ (p. 30).

35.

Commonwealth should deliver a published response to the 2021 SoE Report (p. 190).

The government published the 2021 SoE Report on 19 July 2022. This response addresses findings from the SoE report and the review. Implementation of the government’s actions will be reported regularly for transparency and accountability (p. 47).

The response to the Samuel Review is considered to be the government’s response to the 2021 SoE Report.

36.

The EPBC Act should be amended to provide a legislative basis for the Commonwealth’s national leadership and reporting role, including to set out the purpose of SoE reporting, to require a government response to future SoE in the form of a strategic national plan for the environment and annual implementation reports, and a set of national environmental-economic accounts to be tabled annually alongside traditional budget reporting (p. 190).

The government will legislate to clarify the purpose of SoE reporting, including requiring trend analysis against national goals and a long‑term set of environmental indicators. This will include a requirement for a government response to future SoE reports to be tabled in Parliament within a specified timeframe.

The government will develop a core set of national environmental economic accounts to be tabled annually in Parliament alongside the system of national (economic) accounts (p. 48).

See Recs 31 and 34 in regard to establishing a Data Division and its functions.

The minister has said, ‘by agreement with the Treasurer, the historic wellbeing budget will also include environmental indicators’ (p. 9).

The Treasurer launched the ‘Measuring What Matters national wellbeing framework’ in July 2023. The framework includes 8 indicators under the ‘Sustainable’ theme, which describes ‘a society that sustainably uses natural and financial resources, protects and repairs the environment and builds resilience to combat challenges’. The indicators are: air quality, biological diversity, climate resilience, economic resilience, emissions reduction, fiscal sustainability, protected areas and resource use and waste generation.

37.

The Commonwealth should build reforms by pursuing harmonisation with states and territories to streamline national and international reporting by delivering: (a) a national environmental monitoring and evaluation framework; and (b) a nationally agreed system of environmental‑economic accounts to support streamlined environmental reporting (p. 190).

The government will improve reporting and consider the best way to support further harmonisation with states and territories through relevant intergovernmental forums (p. 48).

See Rec 36 in regard to environmental economic accounts.

On 21 October 2022, Commonwealth, state and territory environment ministers agreed to ‘work together to improve the quality, accessibility and interoperability of environmental data to aid decision-making’ (p. 2).

On 9 June 2023, Commonwealth, state and territory environment ministers ‘agreed to work together to identify and remove barriers to enable sharing of information between jurisdictions’ (p. 1).

38.

The Commonwealth should instigate a refresh of intergovernmental cooperation and coordination to facilitate collaboration with the states and territories (p. 195).

The government will seek to formalise support for the implementation of national environmental law reform through relevant intergovernmental forums.

The government has reinstated the environment ministers’ meeting to promote collaboration with states and territories. Ministers have committed to work together on NES, regional planning locations and environmental data. Regional planning will be undertaken with states, territories and local government (p. 49).

Meetings of Commonwealth, state and territory environment ministers have been held in October 2022 and June 2023.