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The EPBC Act Musical – A Tale in Two Parts

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This article was written by Anna Vella and Aaron Beale.

As discussed in our previous updates in July, October and November 2019, the review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) is currently underway.

This article provides an update as to:

  • key issues and themes raised via comments and submissions about the EPBC Act review; and

  • recent comments made by the government about impending reforms.

Part 1:  The current score and singing from the music - the Review process to date

In late April 2020, the period within which submissions could be made in response to the discussion paper released by Professor Samuel AC closed. The independent expert review team is now undertaking a process of summarising the key issues raised in those submissions and online comments and discussing ideas for reform.

As shown by the timeline below, the release of the draft report is the next milestone in the review process:


Formal submissions made as part of the review process are not yet publicly available however, "brief comments" which have been submitted to the review committee and are to be considered as part of the review, are available. To date, the review has attracted a total of 276 comments.[1] Comments have been made anonymously (30%), by individuals (67%), and some comments were made from non-government organisations (3%).

Within these, a number of common issues have been raised, namely: [2]

  • The composition of the independent expert panel has been criticised – comments allege that the expert panel does not (and should) extend to members experienced in biology, ecology, or biodiversity.

  • The impacts of climate change are not adequately addressed by the EPBC Act. The EPBC Act needs to be more responsive to climate change, which causes increased severity of bushfires, drought and flood and impacts on threatened and vulnerable wildlife.

  • The EPBC Act lacks funding mechanisms to ensure it is administered properly.

  • Indigenous involvement is required to restore the natural balance to the environment.

  • Protection mechanisms under the EPBC Act are required in response to industries such as forestry, land clearing, mining, agriculture, roads and development generally.

These comments are generally reflected in some of the submissions which have been made to the review committee (and which we have been able to consider).  Other issues have been raised, such as:

  • Changes should be made to the triggers of what are "matters of national environmental significance" and therefore within the scope of the EPBC Act – (depending on the submitter) to state:
    • new triggers should be included for: ecosystems of national importance, vulnerable economic communities, significant land clearing activities, significant greenhouse gas emissions and significant water resources; or

    • the existing triggers which duplicate state processes and rely on the same expert advice (such as the water trigger for coal seam gas and large coal mining development), uranium mining, milling and decommissioning and the current prohibition on nuclear energy should be removed.
  • Environmental impact assessment processes be undertaken having regard to materiality and risk thresholds, rather than those which consider all potential or likely impacts.

  • Explicit powers regarding compliance, investigative powers and enforcement being vested in a new national "environmental protection agency" as the chief environmental regulator.

  • Changes should be made to the process of challenging decisions under the EPBC Act: ranging from limited merits review opportunities for some decisions made under the Act to open standing for the community to seek merits review or judicial review of erroneous decisions.

Of course, issues raised in submissions made in response to the review are particular to the concerns and issues of each individual stakeholder and are reflective of the broad terms of reference for the review.

Part 2:  Changing the notes and tempo – early changes foreshadowed

While the final report on the review is due to be delivered in October 2020, the federal Environment Minister, Sussan Ley (Environment Minister) has separately signalled that the government is considering making amendments to the EPBC Act before the independent review has been completed.[3]  

On 23 April 2020, the Environment Minister publicly stated that once the EPBC Act review interim report is received in June, the government will review that report with a view to introducing an early tranche of measures to present to parliament in the October 2020 period.[4]

The Environment Minister expects that Professor Samuel AC will "in the course of the review, identify a range of measures that we can take to prevent unnecessary delays and improve environmental standards".[5] While the scope of the existing review includes being guided by the principle of simplifying decisions and reducing unnecessary regulatory burdens, the Environment Minister's comments may have been in response to criticisms made in some sectors that:

  • the processes under the EPBC Act are cumbersome; and

  • by removing "unnecessary delays", reforms to the EPBC Act would help reduce delays in project approvals – particularly in the current "COVID" economic maelstrom - and fast-track projects.

In addition to the above, in February 2020 the Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2020 (Cth) (Bill) was referred to the Senate Environment and Communications Legislation Committee for inquiry with a reporting date that has recently been extended to early 2021. The Bill seeks to amend parts of the EPBC Act to introduce a climate trigger through assessment of emissions-intensive activities. It may well be the case that the inquiry, the interim and final review report – and any interim amendments – may impact upon the future passage of this Bill.

Where to from here?

We will continue to keep you updated on the EPBC Act review process, any amendments to be made to the EPBC Act and any early consideration of the Bill.

 


[1] Department of Agriculture, Water and the Environment, 'Independent review of the EPBC Act – Brief comments received' (4 March 2020) <https://epbcactreview.environment.gov.au/resources/brief-comments-received>.

[2] As above.

[3] Richard Ferguson, 'Coronavirus Australia: Green tape to be cleared for recovery', The Weekend Australian (online), 23 April 2020 < https://www.theaustralian.com.au/nation/coronavirus-australia-green-tape-to-be-cleared-for-recovery/news-story/e57cc0deece9989b3e8530b28d03d363>.

[4] As above.

[5] Lisa Cox, 'Coalition is aiming to change Australia's environmental laws before review is finished', The Guardian (online) 23 April 2020 < https://www.theguardian.com/australia-news/2020/apr/23/coalition-is-aiming-to-change-australias-environment-laws-before-review-is-finished>.

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