Analysis by Head of Law Reform and Policy Rachel Walmsley
The long-awaited final report of the independent 10-year Review of the Environment Protection and Biodiversity Conservation Act (EPBC Act) has been released. Building on the directions outlined in his interim report last year, it’s clear Professor Graeme Samuel has listened to a range of experts and stakeholders and proposed a comprehensive package of detailed reforms.
The final report is the culmination of an independent year-long review process involving consultation on a discussion paper and interim report (including around 30,000 public submissions); robust debate and expert stakeholder engagement; research and analysis.
Professor Graeme Samuel has delivered a detailed and comprehensive roadmap for reform. This is despite the distraction of the concurrent political process involving a proposed Bill to devolve environmental powers to states & territories before the review had concluded. In over 250 pages, the report includes 12 themed chapters and makes 38 recommendations.
Ultimately the report recommends re-writing the inadequate national law.
New national environmental standards are the centrepiece of Prof. Samuel’s vision, but he notes that standards alone are not enough to reverse trajectories of environmental decline. There is a commendable level of detail in the final report on core concepts such as the national environmental standards and recommendations for immediate reform, but also a significant number of complex policy issues and ideas flagged for future reform that need to be fully explored, consulted upon and developed in the coming months. The final report is the catalyst for critical conversations about how to make and implement new laws to arrest our environmental decline.
Here is our summary of the top 10 report findings and recommendations:
- The EPBC Act has failed to achieve its objectives and needs a complete overhaul. It should be re-written into a new Act or Acts. The report states: Australia’s natural environment and iconic places are in an overall state of decline and are under increasing threat. The environment is not sufficiently resilient to withstand current, emerging or future threats, including climate change. The environmental trajectory is currently unsustainable. The EPBC Act does not clearly outline its intended outcomes, and the environment has suffered from two decades of failing to continuously improve the law and its implementation.
- The centrepiece of a reformed national system are new legally enforceable national environmental standards. The report specifically provides a number of proposed standards – developed with input from a consultative group of stakeholders and experts including EDO – to be implemented immediately. These include standards for matters of national environmental significance (such as world heritage, threatened species, wetlands, migratory species), Indigenous engagement and participation, compliance and enforcement, and data and information (see Appendix B); with recommendations for immediate development of a full suite of detailed standards. The standards are to be enforceable and applied at all scales by all relevant decision makers.
- While stopping short of recommending a completely independent regulator body, new independent oversight and assurance bodies and mechanisms are proposed to ensure new national standards are implemented consistently and effectively. These include: a new Assurance Commissioner that is to be free from political interference and publish timely performance audits on how the standards are being implemented, an Office of Compliance & Enforcement with a full tool kit of enforcement powers (housed in the Department of Agriculture, Water & Environment), transparent audit and reporting requirements and standards, and new oversight committees (for Indigenous engagement & participation, biodiversity conservation, heritage, water resources, with an overarching Ecologically Sustainable Development Committee). Like the national standards, Graeme Samuel stipulates that the necessary oversight and assurance mechanisms be established immediately in the first tranche of the reform process.
- Indigenous-led reform is to be galvanised to significantly improve Indigenous engagement and participation in decision-making, protection of cultural heritage and land management. The report also recommends that national-level laws for Indigenous cultural heritage protection require immediate and comprehensive review. EDO strongly agrees with this recommendation.
- Vastly improved data and information systems are to underpin more efficient and accurate processes – from impact assessment to decision-making to planning to monitoring, evaluation and reporting. Information is to be publicly available, meaning valuable data will no longer be unavailable under commercial-in-confidence barriers and can be shared and used for a range of purposes – including to track effectiveness of the laws. The report recommends: a new data and information standard; appointing an information ‘supply chain Custodian’ to oversee reforms to ensure best available information and evidence is delivered when and where it is needed to support efficient processes; and designating (and maintaining) a set of national environmental information assets.
- Any state, territory, decision-maker or authority who wishes to be accredited to make decisions must be able to demonstrate they can meet the full suite of national environmental and assurance standards. The report notes previous failure of accreditation in recommending that the EPBC Act exemption for actions under failed Regional Forestry Agreements be repealed. The report recommends a new staged accreditation model to replace bilateral agreements and makes it clear that the Commonwealth retains step in powers and “the unfettered right to make decisions, even where an accredited arrangement is in place and working well.” It is noted that states and territories would need to reform their laws to meet the full suite of new national environmental and assurance standards.
- Cumulative impacts are to be better assessed and addressed through new national and regional plans and multi-party investment in restoration. The planning recommendations refer to new national plans, Ecologically Sustainable Development plans (akin to bioregional plans) and focuses on regional recovery plans (rather than for individual species). The recommendations relating to restoration include reforming biodiversity offsets policy to require ‘ecologically feasible’ upfront offset requirements in law.
- It is intended that a new system based on clear standards, assurance oversight, improved transparency and information, and effective compliance and enforcement will reduce the need for third party legal challenges. These rights are confirmed as fundamental to democracy[i] and the report recommends retaining extended standing for third parties to bring legal proceedings and recommends a new pathway of merits review [ii] – focusing on outcomes rather than process. The recommendations on expanding merits review and retaining legal standing by Professor Samuel confirm the important role of public interest cases and reject the ‘lawfare’ furphy.
- While not recommending a climate change ‘trigger’ (ie, that projects emitting certain levels of greenhouse gases require federal assessment and approval), the report does recommend standards be developed to require development proposals to explicitly consider the likely effectiveness of avoidance or mitigation measures on nationally protected matters under specified climate change scenarios, and transparently disclose the full emissions of the development. (In discussing the scope of the Act, the report also recommends retaining the nuclear actions trigger, but redesigning the water trigger to focus on actions with potential cross boundary impacts on water resources).
- The proposed reforms are an interrelated and interdependent package of reforms. Professor Samuel has made it quite clear that it will not be sufficient for the Government to ‘cherry pick’ devolution reforms (ie, as proposed in the Bill before the Senate) without first establishing the necessary legal architecture to ensure legally enforceable national standards, oversight, assurance, Indigenous engagement, data and information, compliance and enforcement, resourcing, capability and capacity to reverse Australia’s declining environment.
So what does all this mean for the Federal Government’s devolution agenda?
As discussed last year in our series of updates on the review process and the streamlining Bill in parliament, there has been a constant tension between the fulsome detailed independent review process and the highly politicised attempt to hand over environmental approval powers to states and territories.
The statutorily required public release of the final report presents a challenge for the Federal Government. Significant work has gone into the initial standards proposed in the final report and a critical test for the government in responding to the report will be whether it accepts the standards as proposed in the report or pursues interim reforms based on current weak requirements – as attempted in the Bill before parliament. In our expert view, the damning findings make it impossible to proceed with any devolution based on the weak requirements of the existing Act.
The Bill is intended to facilitate imminent approval bilateral agreements – in the first instance with Western Australia – based on negotiation around current requirements. The final report specifically warns against this approach noting:
Consultation with States and Territories is essential. However, the process cannot be one of negotiated agreement to accommodate existing rules or development aspirations. To do so would result in a patchwork of protections or rules set at the lowest bar.
While new standards are the centrepiece, it is made very clear throughout the report that an interrelated package of assurance, compliance and enforcement, information and engagement reforms are also needed. Logistically, the whole package of proposed architecture is a pre-condition to any accreditation if it is to work in practice. The report states:
In isolation, National Environmental Standards are insufficient. A broader framework of reform is required to provide confidence that good decisions are being made about Australia’s environment in a way that adheres to the law. Reform is also required to understand if Australia is on track to deliver the intended environmental outcomes, or what adjustments might be needed.
Settling only for the full suite of Standards recommended by the Review, rather than pursuing the fundamental reform of the EPBC Act that is needed and the investment in restoration that is required, means accepting the continued decline of our iconic places and the extinction of our most threatened plants, animals and ecosystems.
The final report certainly does not give the green light for the approach taken in the Bill before parliament that facilitates the handover of environmental powers to states and territories in the complete absence of legally enforceable standards and assurance.
Professor Samuel is very clear that accreditation can only occur when a state or territory can demonstrate it is capable of meeting all his proposed Standards and assurance requirements.. The report warns: “While it is important that the Commonwealth provides a sound mechanism for willing states and territories to enter accreditation arrangements, a focus solely on accreditation at the expense of other reforms it not recommended” and explicitly concludes that:
Accreditation is not about the Commonwealth handing away responsibility to the States and territories. It is not a devolution of responsibility. Accrediting another decision-maker does not mean that the Commonwealth gets out of the business of environmental protection and biodiversity conservation. Rather, the recommended reforms would result in a greater focus at the Commonwealth level on setting the National Environmental Standards, accrediting others, providing oversight of the activities of others, and ensuring national environmental outcomes are being achieved.
The final chapter of the report details a reform pathway. It is very clear that there are a significant number of critical reforms concerning standards, assurance, governance, data, information and participation that should be progressed immediately. The Bill before Parliament does none of these things. The final report makes it crystal clear that the reform needed is comprehensive and must be done properly to ensure our unique environment is managed and protected for future generations.
[i] The Report states: “The ability of the public to hold decision-makers to account is a fundamental foundation of Australia’s democracy. To characterise these types of actions as ‘lawfare’ misrepresents the importance of legal review in Australian society.”
[ii] The Report states: “Adjustments to legal review provisions should be made to provide for limited merits review ‘on the papers’ for development assessment and approval decisions made under the EPBC Act. This type of review should be: available to proponents and those with standing; limited to the material available at the time of the original decision; apply to the approval decision and the application of conditions; and related to consideration of decisions where the exercise of discretion was incorrect in the circumstances or the decision was unreasonable in the circumstances.” For further detail see: 4.3 – Recommended reforms | Independent review of the EPBC Act (environment.gov.au)