31 October 2019

The EPBC Act Musical – Review Intermission

Written by Anna Vella, Aaron Beale and Tamara Akl.

On 29 October 2019, the Australian Government announced that the second independent review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) had commenced, with the aim of tackling green tape and delivering greater certainty to business groups, farmers and environmental organisations (Review).

In light of the current economic climate and Australian Government’s belief that “the Act is really not servicing too many people at the moment”,[1] the announced terms of reference (EPBC Act TOR) for the Review focus on, among other things:

  • reducing regulatory burden;
  • improving transparency; and
  • streamlining and integrating planning to support ecological sustainable development.

Reducing regulatory burden and removing unnecessary costs for business, while ensuring robust protections for the environment, is a key focus of the Australian Government as part of this review. Similar terms of reference were issued for the Productivity Commission review into regulations affecting investment in the Australian resources sector (which we considered in our August update).

Professor Graeme Samuel AC has been appointed to conduct the Review. Professor Samuel AC has specialist expertise in competition and consumer regulation and will be supported by an expert panel consisting of:

  • Mr Bruce Martin, a Wik Ngathan man, who also has an advisory and community-development sector background;
  • Dr Erica Smyth AC, a minerals and petroleum industry expert;
  • Dr Wendy Craik AM, an expert in natural resource management; and
  • Professor Andrew Macintosh, an environmental law and policy expert.

Terms of Reference

The EPBC Act TOR state that the Review is to make recommendations to modernise the EPBC Act and its operation to address current and future environmental challenges, including consideration of:

  • indigenous peoples’ knowledge and role in the management of environment and heritage;
  • implementation of relevant agreements between the Commonwealth, States and Territories; and
  • recommendations of previous reviews, inquiries and significant publications regarding the operation of the Act and potential reform.

We considered the Australian Government response to the first independent review of the EPBC Act in our July update.

Timeline of Review

The Australian Government has proposed the following indicative timeline for the Review. It is expected that Professor Samuel AC will provide his report to the Minister within the next 12 months:

Next Steps

The Review comes at an opportune time for all industry sectors. The Australian Government is committed to ensuring the EPBC Act remains best practice and fit for purpose, whilst maintaining high environmental standards. As this storyline continues to develop, it will be interesting to see how the Australian Government will balance international, industry and community expectations, particularly at a time where significant environmental challenges and opportunities, such as climate change impacts, are the subject of increased public interest.

The Australian Government has invited the public to participate in the review in the form of general comments or written submissions following the release of the discussion paper in November. Further information about the review and the EPBC Act TOR are available via the government’s website.

We will keep you updated as the review progresses over the next 12 months.

[1] Commonwealth, Parliamentary Debates, House of Representatives, 19 September 2019, 3682 (Sussan Ley, Minister for the Environment).

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