11 July 2019

The EPBC Act Musical – time for the next part or a sequel?

Written by Anna Vella and Aaron Beale.

July 2019 marks 20 years since the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) was passed by the Australian Government and hit the stage. At that time, the EPBC Act consolidated five existing major Commonwealth environment-related acts into one with a view to consolidating Australia’s international environmental obligations and consistency of decision making by the Minister for the Environment and Energy (Minister).

The EPBC Act remains as the primary piece of Commonwealth legislation dealing with the environment and implements the Council of Australian Government’s “in principle” agreement to provide a more effective framework for intergovernmental relations on the environment regarding:

  • matters of National Environmental Significance (MNES);
  • environmental assessment and approval processes;
  • listing, protection and management of heritage places;
  • compliance with State environmental planning legislation; and
  • better delivery of national environmental programmes. 
The EPBC Act requires an independent review to be undertaken every 10 years from commencement. The first independent was undertaken in 2008 and the next review is due to commence by October 2019.

The Prelude – the Act

A key mechanism for providing an effective regulatory framework under the EPBC Act is the requirement to refer actions that could have a significant impact on a MNES to the Minister. Between July 2000 and June 2018, the Minister had received 6,180 referrals and, of these, 1,746 (being 31%) were determined to have, or were likely to have a significant impact on a MNES.

As demonstrated on the chart below, the:

  • 2012-13 financial year saw the highest number of referrals to the Minister throughout the reporting period; and
  • since then, the number of referral decisions by the Minister, with respect to the most active industries, have significantly decreased (due to the number of referrals being made to the Minister).

Overview of EPBC Act referral decisions by industry group, 2000-18

Industry Group 

Reduction in referral decisions since peak in 2012 - 13

Development 

52%

Energy Generation and Supply

13%

Exploration and Mining

55%

Tourism and Recreation

62%

Transport

42%

Water

84%

Recap and the First Act – the Hawke Review

On 31 October 2008, the Minister at that time commissioned the first independent review of the EPBC Act (Hawke Review). The final report was released in 2009 and contained 71 key recommendations comprising the following core elements:

  • “redraft the Act to reflect better the Australian Government’s role, streamline its arrangements and rename it the Australian Environment Act;
  • establish an independent Environment Commission to advise the government on project approvals, strategic assessments, bioregional plans and other statutory decisions;
  • invest in the building blocks of a better regulatory system such as national environmental accounts, skills development, policy guidance, and acquisition of critical spatial information;
  • streamline approvals through earlier engagement in planning processes and provide for more effective use and greater reliance on strategic assessments, bioregional planning and approvals bilateral agreements;
  • set up an Environment Reparation Fund and national ‘biobanking’ scheme;
  • provide for environmental performance audits and inquiries;
  • create a new matter of national environmental significance for ‘ecosystems of national significance’ and introduce an interim greenhouse trigger;
  • improve transparency in decision-making and provide greater access to the courts for public interest litigation; and
  • mandate the development of foresight reports to help government manage emerging environmental threats.”[1]

Australian Government Response to the Hawke Review

On 24 August 2011, the then Minister released the Australian Government response to the Hawke Review (Australian Government Response). The table below summarises the Australian Government Response and the status of the Hawke Review recommendations: 

Hawke Review Recommendation 

Australian Government Response

Status of Recommendation

Australian Environment Act

Repeal of the EPBC Act and replacement with the Australian Environment Act to be structured and drafted to modernise, simplify and streamline language and process.

Agreed with the intent of the recommendation, but indicated it would implement the recommendation through the amendment of the EPBC Act rather than an entirely new act. 

Notwithstanding the reforms discussed below, the EPBC Act and underlying processes remain relatively unchanged.

Principles of ecologically sustainable development

“Ecologically sustainable development” (ESD) be confirmed as the overarching principle underpinning decision-making under the EPBC Act. 

Disagreed that legislative change was required to achieve this outcome, as the principles were embodied in sections 3(1)(b) and 3A of the EPBC Act.

The EPBC Act objects remain unchanged.

An object of the Act is to promote ESD through the conservation and ecologically sustainable use of natural resources.

Ecosystems of national significance

The EPBC Act be amended to include “ecosystems of national significance” as a new MNES. 

Agreed to amend the EPBC Act to introduce ecosystems of national significance as a new MNES.

The MNES have not been amended to introduce ecosystems of national significance. The Ramsar wetland had already been recognised as internationally significant, with particular conditions attaching to the ecosystem.

Interim greenhouse trigger

A threshold of 500,000 tonnes of carbon dioxide be introduced as an interim greenhouse trigger pending the commencement of the Carbon Pollution Reduction Scheme.

At the time, the government anticipated that a carbon price would be introduced. As a result, the government did not consider a greenhouse trigger would materially influence the emissions associated with decisions taken on projects during the period over which an interim greenhouse trigger might operate.

The EPBC Act remains unchanged.

Civil and criminal remedies

The EPBC Act be amended to allow for a full suite of administrative, civil and criminal remedies to be applied to any contravention or suspected contravention of the EPBC Act. 

Agreed to amend the EPBC Act to reflect this recommendation

The EPBC Act remains unchanged.

Merits review

The Australian Government consider amending the EPBC Act so that a controlled action and/or assessment approach decision are open to merits review.

Did not agree to the change

The EPBC Act remains unchanged. Administrative review remains the only review option for decisions made pursuant to the EPBC Act.

Code of conduct for consultants

The Australian Government, in consultation with the environment/planning consulting industry, develop an industry code of conduct for consultants supplying information for the purposes of the environmental impact assessment and approval regime under the Act.

Considered that a regulatory response was not warranted.

The EPBC Act remains unchanged.



Changes to the Playbill – What Are They?

Since the release of the Australian Government Response, there have been a number of major amendments to the EPBC Act unrelated to the Hawke Review, including:

  • on 19 September 2012, amendments were made to enable the Minister to establish an independent expert panel to conduct an assessment into the potential environmental, social and economic impacts of a declared commercial fishing activity and to prohibit the declared commercial fishing activity while the assessment is undertaken;
  • on 9 November 2012, the EPBC Act was amended to insert a requirement for the Minster to obtain advice from an Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development if the action is likely to have a significant impact on water resources; and
  • on 22 June 2013, the EPBC Act was amended to require the approval of coal seam gas or large coal mining developments likely to have a significant impact on water resources.

There have also of course been calls for audience participation for an “approvals bilateral agreement” that ultimately has not yet led to sufficient levels of applause.

An Encore or a Sequel – Next steps for the Australian Government?

One of the election polices of the newly elected Australian Government is to ensure that the EPBC Act remains best practice. It will be interesting to see whether achievement of this goal in itself forms part of the upcoming review.

The Australian Government has also committed to consulting widely with business groups, environmental organisations, farmers, other land users and the broader community during the next statutory review.

Given this will be the first time a statutory review of the EPBC Act will occur under a Liberal National led government, it will be interesting to see how the government will balance emerging environmental, economic and social considerations and whether the government plays to the stalls or the balcony. We will keep you updated as the review progresses.


[1] Independent review of the Environment Protection and Biodiversity Act 1999 – Fact Sheet 2 The Independent Review – Conclusions and Recommendations https://www.environment.gov.au/system/files/resources/5f3fdad6-30ba-48f7-ab17-c99e8bcc8d78/files/fact-sheet-2-conclusions-and-recommendations.pdf


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