The Final Report of the EPBC Act Review: key changes, industry concern and where to now?

Feb 2021 | Planning & Environment

The Final Report (Report) of the second Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) was publicly released late last month. The full Report can be accessed here.

Section 522A of the EPBC Act requires an independent review to be undertaken every 10 years. The first independent review was completed in 2019 and was criticised following a lack of implementation. 

The Report recommends a series of sweeping changes to the EPBC Act on a number of key issues and approaches. In the Report’s foreword, Professor Graeme Samuel AC expressed his concern that the EPBC Act fails to protect the environment and Australia’s iconic places of national interest. He criticised the current regime as being out-dated, ineffective and inadequate, and for facilitating piecemeal decision-making which fails to work in tandem with the current environmental management responsibilities of the states and territories. The EPBC Act was also criticised for not addressing and harnessing Indigenous knowledge systems, calling for a shift in attitude to take place. 

It appears at this early stage that the Commonwealth Government will implement the proposed reforms to at least some extent, given the Environmental Minister Sussan Ley’s announcement on the public release of the Final Report that the Government is ‘committed to working through the full detail of the recommendations with stakeholders’.

Key reforms

There are 38 recommendations contained in the Report, and each recommendation goes into detail regarding its proposed outcomes. A high level summary of some of the key recommendations follows:

  • National Environmental Standards: The foundation of the review is the implementation of new, legally enforceable and outcome-focused National Environmental Standards (Standards). The Standards are to be implemented as a regulatory instrument covering all decisions made under the EPBC Act and beyond. The Standards are discussed further below.  
     
  • Focus on Indigenous knowledge: Indigenous Australians knowledge of managing Country should be recognised and respected, recognition of which should be part of an approval process. In addition to this, the inefficient laws protecting Indigenous cultural heritage should be reviewed and reformed. 
     
  • Focus on Commonwealth responsibilities: Interestingly, this recommendation focused on the ‘water trigger’ matter of national environmental significance (MNES). It recommended that the water trigger be scrapped in favour of water regulation under the EPBC Act being limited to those water resources that span jurisdictions (cross-border water resources). This new trigger is proposed to apply to all actions that are likely to have a significant impact on cross-border water resources, not just coal or CSG projects.

    In this section, the Report also considered climate change matters. The Report ultimately determined that the EPBC Act was not the appropriate legislative tool to manage emissions targets or other reduction schemes. However, it has recommended that projects be required to provide detailed assessment of the project’s emissions and explicitly consider the likely effectiveness of avoidance or mitigation measures on nationally protected matters under specified climate change scenarios. 
     
  • Additional oversight: To ensure transparency and accountability when implementing the Standards, a new, independent, statutory position of Environment Assurance Commissioner (EAC) is proposed. In addition to the EAC, a new independent Office of Compliance and Enforcement within the Department of Agriculture, Water and Environment is proposed.  Further, a new advisory committee, the Ecologically Sustainable Development Committee should focus on developing an effective framework for monitoring, evaluating and reporting on the EPBC Act. 

    Further, the Report recommended that compliance and enforcement powers in the EPBC Act be reformed and there should be a Standard prepared and released to ensure consistency. 
     
  • Interaction with the states and territories: The Report broadly agrees with some of industry’s key criticism of the EPBC Act: that it duplicates state and territory regulatory processes for development assessment and approval. The Review recommends that the EPBC Act should enable the Commonwealth to recognise and accredit the regulatory processes and environmental policies, plans and programs of other parties, including states and territories.

    It recommends that the full suite of Standards should clarify the requirements of the EPBC Act to enable the state and territories to obtain ‘accreditation’ that their own approval processes will be sufficient to apply the Standards and the EPBC Act. Once accredited, a state or territory would approve or authorise a project under its own laws, and approval from the Commonwealth Environment Minister would no longer be required. 

National Environmental Standards

The Standards are described as the ‘centerpiece’ of the recommended reforms. The Standards will focus on an outcome-based and holistic approach to decision-making. They are to be precise, quantitative, legally enforceable and will enable a faster and more cost-effective assessment and approval process. 

The Report recommends that the EPBC Act should set out the process for making, implementing and reviewing the Standards, including specific provisions concerning their governance, consultation and review. 

The EPBC Act should require both activities and decisions made by the Minister, or someone under an accredited arrangement to be consistent with the Standards (except in certain limited circumstances). 

The Report developed recommended Standards for: 

  • MNES;
     
  • indigenous engagement and participation in decision-making;  
     
  • compliance and enforcement; and 
     
  • data and information. 

It is recommended that further Standards be developed in a time-efficient manner and that over time, the Standards should have the capacity to evolve when required. It is also envisaged that the states and territories will need to demonstrate that their regimes can meet the Standards to streamline decision-making, support collaboration and facilitate a national system of compliance.

Implementation 

The Report recommends a process of reform involving three tranches which include:  

  1. implementing the Standards, establishing the EAC, recasting the statutory committees, establishing strong compliance and enforcement, investigating priority indigenous-specific reform, building state and territory bilateral agreements, making repairs for gaps and conflicts in the EPBC Act; 
  2. establishing fully effective Standards, allowing strategic national and regional plans, revising the triggers for water and nuclear actions, implementing limited merits review and providing the legislative basis for the environmental information supply chain; and 
  3. completing the overhaul of the national environmental legislation. 

The Report envisages that the final phase be completed by 2022. 

Industry Concern 

There has been some industry concern surrounding the implementation of the Standards. In its written submission regarding the Interim Report1, the Association of Mining and Exploration Companies (AMEC) reiterated that there have been numerous previous reviews and inquiries into the EPBC Act which have lacked backing and which have resulted in the reforms being left unaddressed and unimplemented. AMEC is of the opinion that, ‘clarity, certainty, consistency and predictability’ are required for a successful reform to ensue. They opined that it is unclear how the Standards will provide any further guidance than that which already exists. 

The legislative and regulatory framework surrounding the EPBC Act is complex and it can be expensive and time-consuming for proponents to ensure they comply with the regime. The fact that the Standards could be another hurdle on top of the already stringent requirements has been criticised. 

As is always the case, there is also significant concerns regarding the impact on current projects or new projects that are looking to seek approval in the midst of the three phases of the legislative overhaul. 

If you require any further information regarding the release of this Report and any possible implications it might have, please contact our experienced Planning & Environment Team

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1 Association of Mining and Exploration Companies, Submission to the Independent review of the EPBC Act (15 May 2020).

This article may provide CPD/CLE/CIP points through your relevant industry organisation.

Co-Authored by Molly Shelton, Paralegal.