At a time of heightened awareness of public and planetary health, the 10-year review of our national environmental law – the Environment Protection & Biodiversity Conservation Act 1999 – provides an opportunity to establish clear, integrated and strategic laws to deliver ecologically sustainable development and build ecosystem health and resilience for all Australians.

Short-term responses to the COVID-19 pandemic that focus solely on immediate economic stimulus measures by reducing environmental protections or public involvement may in fact have damaging long-term consequences. Rebuilding and restoring ecosystems burnt by bushfires and sustainably managing landscapes scarred by climate change, extreme weather and drought, will require laws to deliver a long-term vision for human and environmental health and resilience.

Submissions on the Discussion paper are open until 17 April 2020 – see this site for information on how to make a submission and also see the EDO guide to making a submission.

You can find all our coverage of the EPBC Act and its current review on our EPBC Hub Page.

The full EDO submission addresses the 26 questions in the Independent review of the EPBC Act Discussion Paper, November 2019 (Discussion Paper) by grouping the questions into seven themes:

  • objects and principles;
  • scope of the Act;
  • purpose of the Act;
  • role of the Commonwealth;
  • indigenous issues;
  • community participation, accountability and transparency;
  • and in relation to specific mechanisms and tools.

Our submission debunks the myth of ‘lawfare’ and makes 83 recommendations for reform. In summary, we identify the following priorities for a new national environment Act:

Scope and national leadership

  • A new Australian Environment Act that elevates environmental protection and biodiversity conservation as the primary aim of the Act, consistent with Australia’s international obligations.
  • Duties on decision makers to exercise their powers to achieve the Act’s aims – ie, deliver environmental outcomes.
  • Effective mechanisms to addresses the most significant environmental challenges: climate change, land clearing, and cumulative impacts. In addition to existing triggers, new triggers for federal protection should include:
  1. Significant greenhouse gas emissions, (in addition to other measures to address climate change throughout the Act, for example, adaptation planning through bioregional plans and recovery plans),
  2. Significant land-clearing activities,
  3. The National Reserve System (terrestrial and marine protected areas),
  4. Ecosystems of National Importance,
  5. Vulnerable ecological communities (alongside other listed species, populations, ecological communities and critical habitat), and
  6. Significant water resources (beyond large coal and coal seam gas project impacts).

Required outcomes should be identified for each of these matters.

Governance and accountability

  • Two new statutory environmental authorities – a National Environment Protection Authority (EPA) and a National Sustainability Commission (Sustainability Commission) should be established to identify outcomes and ensure they are achieved.
  • To ensure outcomes are progressed, accountability mechanisms should be established to hold the regulator and decision-makers to account including:
  • Access to information and data disclosure provisions to ensure greater transparency,
  • Public participation in decision-making and planning, and
  • Third party review rights (including merits review).
  • Greater emphasis on Indigenous leadership and rights (including free prior informed consent requirements), land management and biodiversity stewardship, including formal recognition of Indigenous Protected Areas.

Outcomes and efficiency

  • Improved national standards to drive best practice including:
  • A clear process for accreditation of assessment processes that meet strict national standards (for example, biodiversity offsets), with retention of Commonwealth approval and call-in powers,
  • Clear upfront guidance on assessment requirements (including red lights) to improve certainty,
  • Clear objective decision-making criteria set out in legislation,
  • Strengthened strategic assessment and bioregional planning provisions, and
  • Independently appointed and accredited consultants to improve assessment quality and information.
  • A national environmental data and monitoring program that links federal, state and territory data on biodiversity, strategic planning and environmental impact assessment (underpinned by a National Ecosystems Assessment). This is needed to measure outcomes and trends.
  • Improved regulatory culture and outreach, and resource effective compliance and enforcement.