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Focus: Interim report on the EPBC Act

3 July 2009

In brief: The Review Panel appointed by the Federal Government to conduct an independent review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) has released an interim report. Partner Chris Schulz (view CV) and Senior Associate Robyn Glindemann highlight some of the key comments made in the report and the issues being raised for consideration by the review panel.

How does it affect you?

  • The interim report, released on 29 June 2009, pinpoints the major themes identified by the review panel and summarises the issues raised by public submissions made to the panel so far.
  • The purpose of releasing the interim report is to allow for further public comment on the review of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act).
  • Public comment closes on 3 August 2009.
  • A final report from the review panel is to be provided to the Federal Minister for the Environment, Heritage and the Arts by 31 October 2009. Depending on the final recommendations from the panel, we could see further changes to the EPBC Act.

Background

The independent review of the EPBC Act was announced by the Federal Minister for the Environment, Heritage and the Arts on 31 October 2008. The review has been carried out in accordance with section 522A of the EPBC Act, and is to examine the EPBC Act's operation and the extent to which it is achieving its stated objects.

The review is being undertaken by Dr Allan Hawke, who is supported by a panel comprising Professor Tim Bonyhady, Professor Mark Burgman, the Honourable Paul Stein AM and Rosemary Warnock.

The terms of reference for the independent review are to:

  • examine the operation of the EPBC Act generally, and the extent to which the EPBC Act's objects have been achieved;
  • assess the appropriateness of the current Matters of National Environmental Significance (MNES); and
  • assess the effectiveness of the biodiversity and wildlife conservation arrangements set out in the EPBC Act.

The interim report consists of 24 chapters addressing a specific issue related to the EPBC Act, including:

  • environmental impact assessment under the EPBC Act;
  • forestry;
  • land clearance;
  • climate change;
  • water;
  • heritage;
  • biodiversity conservation;
  • Indigenous involvement;
  • review;
  • enforcement; and
  • compliance.

Each chapter sets out in brief terms the relevant provisions in the EPBC Act, a summary of the submissions made on that issue, and lists some key points that will be addressed in the panel's final report. The interim report also references the separate inquiry on the EPBC Act conducted by the Senate Standing Committee on Environment, Communications and the Arts, and draws on some of the conclusions reached by the Committee in its reports released on 18 March and 30 April 2009.

Significantly, the review panel makes no recommendations in the interim report. Instead, the panel is seeking further public input on the operation of the EPBC Act and the issues raised in the interim report.

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Key issues in the interim report

By its very nature, the scope of the interim report is extremely broad. However, some of the key observations made by the review panel are set out below.

Current matters of national environmental significance

The interim report noted that the fact that relatively few submissions dealt with the current MNES suggested that there was a general acceptance of the current list of seven.

However, there was a strong theme in the submissions for the addition of new MNES. The most commonly suggested were greenhouse gas emissions/climate change, land clearance, water extraction, wild rivers or wetlands of national importance, and wilderness areas. The panel addressed each of these topics in subsequent chapters of the report, without coming to any conclusions.

Some submissions had argued that the EPBC Act should be amended so that once an action is declared to be a 'controlled action' under the EPBC Act, the Federal Minister should assess all environmental impacts of the proposed action and not just the impact that it would have on the relevant MNES. This proposal will be considered further by the review panel.

The environmental impact assessment process

Chapter 4 of the interim report, dealing with environmental impact assessment, is the largest, indicating the level of interest in this aspect of the EPBC Act's operation. A number of important issues were raised for consideration and further discussion by the panel.

The first of these is finding a better explanation of the definition of the term 'significant impact' as it applies to impact on a MNES. There was some suggestion that the EPBC Act does not define 'significant impact' adequately and that the courts have so far failed to provide clarity. The interim report notes that it is unlikely that a better test than that of significance exists or could be developed, although it suggests that the prescription of mandatory considerations in the EPBC Act or the use of further, or more prescriptive, guidelines would assist in the interpretation of this concept.

Some submissions suggested that the low number of referrals made under the EPBC Act is an indication of the EPBC Act not working to protect biodiversity and is a product of the onus being on the project proponent to make the referral. It has been suggested that it would be desirable for the EPBC Act to enable third parties to make referrals to the Federal Minister.

The interim report noted that there appears to be 'some confusion' surrounding the consideration of social and economic matters, and the weight they are given, when decisions are made under the EPBC Act. The report suggests that policy guidance or criteria in the EPBC Act itself on what these matters include and how they should be weighted might be required.

A range of submissions also indicated a concern about the value and transparency of public input into the environmental impact assessment process under the EPBC Act, and a lack of response from the Department of Environment, Water, Heritage and the Arts to public submissions made during the process. The report notes that numerous suggestions for improving the public engagement process under the EPBC Act have been made and many have merit. It also states that some changes to the public consultation process may be necessary, to enable full and effective public engagement at key points in the process; however, there needs to be a balance between effective public consultation and efficient decision making. This will be a matter for further consideration by the review panel.

Prior authorisation and the continuing use exemption

Chapter 5 of the interim report deals with ss43A and 43B of the EPBC Act, which allow certain pre-existing activities to continue under the EPBC Act without further approval. These provisions were amended in 2006.

There is some concern that the ongoing use of these exemptions is allowing activities that actually have a significant impact on a MNES, as a result of the surrounding environment changing, to continue when a fresh approval should really be sought under the EPBC Act. The discussion focused particularly on agricultural activities and the differing views about the application of these sections to land clearing. Paragraph 5.43 of the interim report expressly invites comment from interested stakeholders on whether there is a need to prescribe further the terminology used in s43B of the EPBC Act, and whether a specific definition of what constitutes an 'enlargement, expansion or intensification of use' or a 'change in the nature of activities comprising use' is warranted.

Climate change

The review panel has made no recommendations on whether climate change or a greenhouse trigger should be included as a MNES in the EPBC Act. Still, the interim report does state that the relevance of a greenhouse trigger depends on the implementation of the Federal Government's proposed Carbon Pollution Reduction Scheme. The report states that if the CPRS is introduced in the 'relatively near future', the review panel would not support the creation of a separate broad-based greenhouse trigger in the EPBC Act.

In relation to the ability of the EPBC Act to assist in adaptation to climate change impacts, the interim report notes that the review panel is considering a number of measures that will provide for better protection and biodiversity in general, and that one of the considerations in assessing those measures will be the extent to which they can assist in climate change adaptation strategies.

Heritage protection

The revised heritage listing processes for development of the Commonwealth and National Heritage Lists, which were introduced into the EPBC Act in 2006, appear not to have been well received. The interim report notes that there is scope for these processes to be simplified and made more transparent.

Ministerial decision making and the opportunity for review

A strong theme in many of the submissions made by environmental NGOs to the review panel was criticism of the wide discretion currently held by the Federal Minister in making decisions under the EPBC Act and a perceived absence of accountability. This dovetailed with the very strong criticism made of the removal of s478 of the EPBC Act, which had previously prohibited the Federal Court from requiring an applicant for an injunction to give an undertaking as to damages. The universal theme that came out in submissions was that the removal of this provision has created a significant obstacle to public interest litigation.

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Where to from here?

As noted, the interim report is open for public comment until 3 August 2009. Submissions can be made via email to EPBCReview@environment.gov.au or via post to GPO Box 787, Canberra ACT 2601. All submissions must be accompanied by a one-page summary form that can be downloaded from the EPBC Act Review website.

Published 3 July 2009

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