Damning findings in the Samuel Interim Report on the Commonwealth EPBC Act

By Meg Lee

In no uncertain terms, Professor Graeme Samuel has found that the Commonwealth environmental legislation is ineffective. In this article, Partner Meg Lee considers the key findings of the Interim Report of the Independent Review of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and explains the road to reform.

In the Interim Report, Professor Samuel states that the EPBC Act does not enable the Commonwealth to play its role in protecting and conserving environmental matters that are important for the nation. Further, Professor Samuel warns that the Act is not fit to address Australia’s present and future environmental challenges.

Commonwealth role in environmental matters

It is important to note at the outset that the Commonwealth Government does not have a direct head of power in the Australian Constitution to govern with respect to environmental matters. It is the States and Territories that have the primary responsibility for land use planning and environmental decisions. This is not something that is commonly understood.

Necessarily this meant that, at the time the EPBC Act was drafted and the framework established, the Act was required to focus on and be structured around the matters covered by other Commonwealth powers, such as the International Treaties power. This resulted in a framework of protection of certain listed matters of national environmental significance (such as listed species, wetlands of international importance, places of national heritage), rather than a holistic framework for environmental governance.

While Prof Samuel recognises the Constitutional restrictions, the Interim Report proceeds on the basis that the Commonwealth fundamentally should have an overall management and enforcement role in environmental matters. The mechanisms to achieve this remain somewhat elusive and are expected to be addressed in more detail in the Final Report. The key, however, is Prof Samuel’s proposal for the development of legally enforceable National Environmental Standards.

Key criticisms of the EPBC Act

The criticisms of Prof Samuel are comprehensive and broad-ranging. For many in the Commonwealth Department who work implementing the Act, the criticisms may seem harsh and, in some cases, unwarranted. For others, the criticisms echo their own frustrations with the cumbersome way the Act operates and the interaction between the State and Commonwealth approval processes.

In summary, the Interim Report raises the following key criticisms of the EPBC Act:

• National outcomes: It lacks clear national outcomes and effective mechanisms to address environmental decline, including because it does not adequately implement ecologically sustainable development goals nor facilitate restoration of the environment or provide a mechanism to address key threats to the environment such as climate change.
• Indigenous input: It undervalues Indigenous knowledge in environmental approaches and management of Traditional Owner land and it instead prioritises the views of western science.
• Legislative complexity and inefficiency: It inefficiently duplicates the State and Territory frameworks for development assessment and approval, leading to unnecessary costs for the environment, business and the community. It is complex and leads to confusion and inconsistent decision-making, creating an unnecessary regulatory burden for business and restricts access to justice.
• Trust: It is not trusted by the community and is considered opaque with inadequate opportunity to substantively engage in decision-making. Nor is it trusted by industry and is generally viewed as cumbersome, duplicitous, slow and subject to regular legal challenges that delay projects and drive up costs.
• Poor information: It does not use the best available information, resulting in in suboptimal decision-making, inefficiency and additional costs.
• Inadequate monitoring: It does not have an effective framework to support a comprehensive data-based evaluation of activities and outcomes and this leads to ineffective monitoring, compliance, enforcement and assurance.
• Lack of restoration: Species and habitat offsets that are used to offset the impact of a development are considered not to be adequate as a means of restoring the environment, in part because it is said that offsets have become the default rather than the exception when reasonable options to avoid or mitigate have been exhausted.
• Inadequate enforcement: There has been limited activity to enforce the Act over the past 20 years and what has been done is not transparent. The complexity of the Act hampers enforcement as the powers can only be applied in a piecemeal way across different parts of the Act due to the way it is structured.

What reforms have been recommended?

The report recognises the difficulty of achieving significant reform and recommends a three-phased approach to the amendments.

National environmental standards

The report recommends the implementation of national environmental standards, regulatory instruments, to ensure ecologically sustainable development and alleviate concerns with the EPBC Act’s complexity. The standards would be accredited by the Commonwealth Minister in consultation with stakeholders. The standards would then be legally enforceable through a reformed EPBC Act. All decision-makers could then apply the standards to deliver consistent and clear environmental outcomes.

While a laudable idea, we expect there may be difficulty in developing simple national environmental standards that will be easily understood and able to be enforced.

Devolvement of decision-making

A key suggested reform is the devolvement of decisions for approvals to accredited States and Territories. Approval accreditation was a goal of the EPBC Act when it came in, but only assessment accreditation of the States and Territories has occurred, meaning that the Commonwealth still issues separate approvals. This reform therefore seeks to overcome the inefficient duplicity between the EPBC Act and State and Territory regulatory frameworks. To be accredited, States and Territories would need to demonstrate that their systems can deliver environmental outcomes consistent with the proposed national environmental standards. The Commonwealth’s role would be reduced to setting the standards, accrediting States and Territories, and providing quality assurance and compliance oversight, with the capability to step in to make decisions if necessary.

Again, while a goal that is to be encouraged, this was a goal of the existing regime that has never come to fruition due to the inability of the States and Commonwealth to agree on the approval bilateral agreements. Hopefully, 20 years’ on an alignment of the minds of States and Commonwealth can occur with the backing of the Samuel review.

Independent regulator

To support the standards and devolved decision-making, the report recommends a modern independent regulator. The regulator would be responsible for monitoring, compliance, enforcement and assurance on an opt-in basis, and without any actual or implied political direction.

Similarly, an independent regulator is an important step in ensuring adequate enforcement and monitoring, there is a risk of duplication with the State and Territory Environment Protection Authorities (EPAs) and it may be more efficient to similarly devolve enforcement to these agencies and to provide additional funding to enhance this role.

Stakeholder consultation

The report encourages the contribution of Indigenous, scientific, environmental, business and community stakeholders through an Ecologically Sustainable Development Committee. Stakeholders would provide the Minister with transparent advice and varied perspectives to inform decisions to design reforms, create the national environmental standards and other relevant decisions.

Increased involvement of Indigenous people and incorporation of their land management traditions and experience is an important reform. While the proposed committee may be a useful forum to assist with engagement and feedback, it is unclear how the proposed committee would function and this will require further detail. It is difficult to imagine a committee of scientific, community, business, and indigenous groups being of the one mind and able to provide the Minister with coherent or singular advice on decision-making.

Other reforms

Further recommendations include:

• initial legislative amendments to the EPBC Act addressing its inconsistencies, gaps and conflicts;
• subsequent comprehensive redrafting of the EPBC Act to deal with the structural reform;
• the implementation of an accessible and high-quality national ‘supply chain’ of information setting clear environmental requirements;
• the availability of review options for the outcome of development approvals, including limited merits review. This will be something that environment groups would welcome; however, it will require further thought as to the relevant jurisdiction for such review and the capability of superior courts to consider merits rather than administrative review;
• adaptive planning through national strategic and regional plans, and the regional (landscape) scale;
• a focus on environmental restoration with genuine environmental offsets incentivising investment in restoration; and
• continued evaluation of the effectiveness of the EPBC Act.

Commonwealth reaction to the report

While the government has not yet formally responded to the report, the Environment Minister, Sussan Ley, has stated that the Commonwealth accepts the report’s key recommendation to develop national environmental standards.

The interim report is available to read on the EPBC Act review website: https://epbcactreview.environment.gov.au/resources/interim-report.

Feedback on the Report is open until 9:00 am on 17 August 2020. The final report is due in October 2020, and will take feedback into consideration.