31 July, 2020
Statement on the Interim Report on the statutory review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)
On July 20th, the Interim Report (the Report) of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was released.
Since 1999, the EPBC Act has been Australia’s primary Commonwealth environment and heritage law. Heritage includes iconic places like the North Head and certain indigenous sites, remains and cultural places. Australians expect that this law would be effective in protecting the nature and heritage that underpins our national character, economy, and wellbeing.
However, the Report found that the EPBC Act has failed to protect our environment and heritage. Since enacted, 1890 species have been listed as threatened, and four species per decade on average are going extinct[i]. Compounding this, over three billion animals were displaced or perished in last summer’s catastrophic bushfires,[ii] another fifty species could be threatened. Protecting our environment is now more critical than ever.
Indigenous Australians are also not being adequately involved in decisions, and their history is being wiped out.
To right this, the Report found that the EPBC Act requires major reform. I am pleased that the Government intends to make some changes recommended by the review, as indicated by the Minister for the Environment’s statement. (see here).
I am supportive of some highlighted measures the Minister has committed to that will improve protection including:
- The development of new national Environmental Standards which will provide measurable goals and requirements for the EPBC Act’s performance
- The modernisation of the protection of indigenous cultural heritage; and
- The exploration of market-based solutions which could leverage public-private capital and ingenuity to drive habitat restoration and outcomes
However, I have several concerns with other aspects of the Government’s intent around announced changes.
Firstly, I am concerned that the Government is rushing to devolve approvals and decision making to the States. Under the current system, specific projects must be signed off by both State and Commonwealth Ministers. The justification for changing this is that removing the Commonwealth approval process and creating ‘single touch approvals’ will speed up approval times, which have in recent years, blown out to over 116 days above what the EPBC Act requires.[iii]
I understand the duplication argument - that federal and state laws and regulations overlap and so we must make it more efficient - but we must also acknowledge that a large proportion of the delay comes from the Department for Agriculture, Water and the Environment being understaffed due to successive Coalition government cuts.[iv]
Any move to devolve decisions to the States should be scrutinised. The States have, in recent years, made questionable decisions that have resulted in environmental and heritage destruction. Take for example, the destruction of various aboriginal heritage sites by mining companies under Western Australian law.[v] We must be sure that these decisions are in fact, in a ‘safe pair of hands’.
Any mission to ‘speed’ up approvals must also be sensitive to the fact that environmental and heritage destruction has accelerated over the last several decades, and therefore there need be strong safeguards to prevent further acceleration.
I will spend time analysing the Government’s future ‘devolution’ proposal - when it is available - as to whether it will still provide the necessary safeguards and the Commonwealth to retain the ability to remain active in decision making/oversight, and intervene when necessary.
Secondly, I am concerned that the Minister has ruled out establishing an ‘independent cop on the beat’ to oversee the compliance and enforcement functions of the Act. We know from the recent Auditor General report into approvals under the Act that the Department of Agriculture, Environment and Water, who is currently tasked with this role, is not efficient or effective.[vi]
The Report also made clear that restoring trust will be essential and that stakeholders would be much more entrusting if they knew an independent regulator was established. It is puzzling that the Minister has ruled this out so quickly as the States themselves are supportive of this recommendation[vii].
Lastly, I am concerned about the Government announcement of hurried legislative changes without establishing strong Environmental Standards before those changes. Before we do anything, we must be clear on what the goals are and how the legislation can support them. The Government should consider a slower, more deliberative reform process to ensure we do not rush important changes that could result in unnecessary environmental damage.
The Report also highlights areas of significant opportunity for reform. I urge the Government to consider other findings such as:
- The need for the Act to have an overarching objective like Ecologically Sustainable Development
- Streamlined and accessible data for the decision-makers, proponents and the public
- The need for requiring projects to consider the effectiveness of their actions to avoid or mitigate impacts on nationally protected mater under specified climate change scenarios and disclose full emissions profiles
- That the Reviewer is not yet convinced that extended standing should be curtailed
I hope to work collaboratively with the Government in the coming weeks on their reform agenda. Our heritage and environment are part of what makes us Australian, supports us in our economic endeavours and keeps us healthy and grounded. It is imperative for all Australia that we get reforms right.