Australia’s 20-year-old environmental laws ‘ineffective’, review finds

By Shannon Jenkins

Tuesday July 21, 2020


The federal government has rejected the call for an independent regulator to monitor compliance and enforcement of Australia’s environmental laws, stating it would add unnecessary layers of bureaucracy.

The interim report on the independent review of the Environment Protection and Biodiversity Conservation Act 1999 was released on Monday.

The EPBC Act is “ineffective” and results in duplication with state and territory environment laws, according to independent reviewer professor Graeme Samuel.

“It does not enable the commonwealth to protect and conserve environmental matters that are important for the nation. It is not fit to address current or future environmental challenges,” he said.

“The commonwealth process for assessing and approving developments is slow, complex to navigate and costly for business. Slow and cumbersome regulation results in significant additional costs for business, with little appreciable benefit for the environment.”

He called for new, legally enforceable national environmental standards as a “priority reform measure”. The standards should focus on detailed prescription of outcomes, not process.

“Interim standards could be developed immediately, followed by an iterative development process as more sophisticated data becomes accessible … Standards support clear and consistent decisions, regardless of who makes them,” he said.

“Where states and territories can demonstrate their systems can deliver environmental outcomes consistent with the standards, responsibilities should be devolved, providing faster and lower cost development assessments and approvals.”

Community trust in the act and its administration is low, the review found. The report proposed that an “independent cop on the beat” is needed to build confidence. They would not be subject to political direction, should be properly resourced, and would have a range of powers.

The review also found that more needs to be done to improve the condition of the environment.

To do this, Samuel said the EPBC Act needs a “firmer focus on avoiding impacts where possible and increasing the area of nationally important habitats” to allow future development to be sustainable. The government could also look at ways to speed up environmental restoration, such as markets and co-investing with the philanthropic and private sectors.

The laws have failed to fulfil objectives related to Indigenous Australians and must be reviewed, Samuel noted.

“Sustained engagement with Indigenous Australians is needed to properly co-design reforms that are important to them,” he said.

“Much more needs to be done to respectfully incorporate valuable Traditional Knowledge of Country in how the environment is managed. Indigenous Australians seek, and are entitled to expect, greater protection of their heritage.”

Other areas of proposed reform called on the federal government to:

  • Continue to focus on existing areas of responsibility with no expansion to regulate new environmental matters,
  • Ensure devolved decisions deliver the intended outcomes with strong and transparent assurance,
  • Build trust in the system through increased transparency of information and decision-making to reduce the need to resort to court processes to discover information. Legal challenges should be limited to matters of outcome, not process,
  • Create a “quantum shift” in the quality of information so that the right information is available at the right time for the community, proponents and decision-makers. This would deliver better decisions, and faster and lower cost assessments and approvals,
  • Create a coherent framework to monitor and evaluate the effectiveness of the EPBC Act, including revamped State of the Environment reporting,
  • Focus on restoration of the environment, allowing available habitat to grow in order to support development and a healthy environment.

A final report is set to be delivered to the environment minister Sussan Ley by October 31.

Mixed response to initial findings

Ley on Monday said the government would commit to a number of priority areas, including developing national environmental standards and talking with willing states about agreements for single touch approvals to remove duplication.

However, Ley rejected the proposed establishment of an independent regulator, as it would create “additional layers of bureaucracy”.

Kelly O’Shanassy, CEO of the Australian Conservation Foundation, said an independent regulator would “be the voice our flora and fauna need to hold the government to account and make sure the law actually does the job of protecting nature”.

Ley said the government would also begin a national engagement process to better protect Indigenous cultural heritage, starting with a round table meeting of state Indigenous and environment ministers chaired by Ley and Indigenous Australians minister Ken Wyatt.

She has also planned to set up an environmental markets expert advisory group to look at market based solutions for better habitat restoration that will significantly improve environmental outcomes while providing greater certainty for business.

The government would stick to its current framework for regulating greenhouse gas and other emissions, and would not propose any expansion of the EPBC Act in this area, she said.

Samuel has invited all Australians to have a say on the reform directions. He argued the proposed reforms would “enable the commonwealth to show national leadership”, while working more closely with other jurisdictions to deliver a joined-up approach to environmental management.

“Reform of the EPBC Act is well overdue and necessary to ensure current and future generations can enjoy Australia’s unique environment and iconic places,” he said.

Samuel has begun undertaking targeted consultations with stakeholders, including environment, Indigenous, agriculture and business groups, leading academics, and state and territory governments. The meetings run until September and would focus on progressing the key reform directions, including refining the national environmental standards.

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