Background

On Thursday 28 January, the Final Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was released. The second 10-yearly statutory review, led by Professor Graeme Samuel AC, examined the operation of the EPBC Act and the extent to which it achieves its objectives.

Describing the EPBC Act as “complex and cumbersome”, Samuel highlights its ineffectiveness and lack of modernisation, the unnecessary duplication with State-based regulation, and the resultant additional cost impost to business with no benefit to environmental outcomes.

Samuel’s Final Report proposes a suite of reforms aimed at contemporising the EPBC Act, streamlining environmental approvals, devolving decision-making, improving stakeholder consultation and community confidence and supporting sustainable development. The Final Report includes the following recommendations:

• Develop legally enforceable National Environmental Standards for matters of national environmental significance (MNES).
• Establish a new independent, statutory Environmental Assurance Commissioner responsible for reporting performance on implementation of National Standards.
• Establish a new independent Office of Compliance and Enforcement within the Department of Agriculture, Water and Environment (DAWE) responsible for compliance and enforcement of Commonwealth approvals.
• Establish a national supply chain of information with a long-term strategy to build and improve data and information on MNES.
• Establish new mechanisms to leverage private sector investment to deliver environmental restoration.
• Establish a new Ecologically Sustainable Development Committee responsible for providing advice to the Environment Minister on the development of National Standards, strategic national plans and regional plans; developing a framework for monitoring, evaluation and reporting of the implementation of the EPBC Act; and reporting on outcomes for MNES.
• Establish an Indigenous Engagement and Participation Committee responsible for advising the Environment Minister on the development and implementation of a National Standard for Indigenous engagement and participation in decision-making.
• In the near-term, legislative amendments to the EPBC Act to address known inconsistencies, gaps and conflicts, and to effectively facilitate devolved decision-making.  In the longer-term, substantial redrafting of the EPBC Act is recommended to reduce complexity and remove unnecessary regulatory burden.
• Amendments to legal review provisions to provide for limited merits review ‘on the papers’ for development assessment and approval decisions.

In response to Samuel’s Final Report, the Minister for the Environment, Hon Sussan Ley MP, committed to considering Samuel’s recommendations in consultation with stakeholders as the Government’s reform agenda is developed. Minister Ley also committed to progressing the establishment of a ‘single touch’ environmental approvals system and further streamlining reforms, in alignment with National Cabinet’s commitment on 11 December 2019.

CME Position

CME welcomes the broad intent of Samuel’s Final Report, seeking to remove duplication across Commonwealth and State legislation, and to support ecologically sustainable development through more effective, outcomes-focused regulation supported by scientifically robust data and improved transparency.

CME strongly supports reforms aimed at streamlining environmental assessments and approvals, including through the establishment of a ‘single touch’ bilateral agreement for Western Australia. There has been strong support to date from both the State and Commonwealth Governments towards a bilateral approval agreement and CME looks forward to this initiative progressing during 2021, including public consultation on the agreement and supporting National Standards.

Nationally consistent environmental standards have the potential to provide an effective, consistent framework for achieving the objects of the EPBC Act, administered by States under an accredited regulatory framework. CME supports the appropriate role for the State regulators to assess and protect environmental outcomes within their jurisdiction, based on access to robust environmental data, and further underpinned by a landscape-scale understanding to ensure relevant environmental and MNES standards are met. 

Additionally, CME strongly supports progress of the partnership between the Commonwealth and Western Australian Government to develop a shared digital environmental biodiversity and application database. Increased public availability of biodiversity data will help strengthen community confidence in regulatory processes, enhance transparency and support robust decision making on biodiversity protection.

CME will monitor for further Government response to the Independent Review, including both the near-term and longer-term legislative reform and will work with its Environment Committee and Approvals Working Group to support upcoming consultation processes associated with any subsequent reform.