Report of the Independent Review of the Final Report e Australian Environment Act OCTOBER 2009 Report of the Independent Review of the ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 II e Hon Peter Garrett AM MP Minister for the Environment, Heritage and the Arts Parliament House CANBERRA ACT 2600 Dear Minister Independent Review of the Environment Protection and Biodiversity Conservation (EPBC) Act 1999 I am pleased to provide you with the Report of the Independent Review of the EPBC Act 1999 (the Act) in accordance with section 522A. As well as the operation of the Act and the extent to which its objects have been achieved, the Review has had particular regard to the: ■ Australian Government’s overarching policy objective of promoting sustainable economic development while protecting biological diversity and maintaining essential ecological processes and systems; ■ desire to work in partnership with the states and territories on environmental issues; ■ focus on reducing regulation while maintaining eective environmental standards; ■ need to facilitate Australia’s international obligations; ■ requirement to conform to the Expenditure Review Principles; and ■ commitment to seeking government, industry and community input. e EPBC Act is a hard Act to follow in both senses. First, the Act was deliberately drafted with large sections of text repeated in an endeavour to make it easy to understand, but has actually produced the obverse outcome. e Act is currently too repetitive, unnecessarily complex and, in some areas, overly prescriptive. It needs restructuring to make it more accessible, easier to navigate and reduce the regulatory and resource burden on those impacted by the Act, requiring the recasting of many of its provisions. While this Report recommends signicant changes to the Act’s operation and administration, it brought about important reforms and there are many positive features that should be retained, including: ■ clear specication of matters of National Environment Signicance; ■ the Environment Minister’s role as the decision‑maker; ■ public participation provisions; ■ explicit consideration of social and economic issues; ■ statutory advisory mechanisms; and ■ the strong compliance and enforcement regime. e EPBC Act is, however, a product of its time. e Review provides the opportunity to set the framework for future generations in the area of national environmental regulation, as a response to the body of information that has been acquired during the intervening ten years, and new and emerging issues aecting our environment. In polls taken by the Australian National University during the middle of 2008, a period coinciding with onset of the global nancial crisis, the economy and the environment were viewed by respondents as the two dominant problems facing the country – outranking water management, health care and education by a large margin. 1 While environmental issues dominated the public consciousness, a majority – 56 per cent of respondents – considered that the Australian Government is doing too little. 2 e public has a higher expectation of the Government’s role in protecting the environment than is currently being delivered. 1 e Australian National University, ANUpoll ‘Public Opinion Towards the Environment – Results from the ANU Poll’, (Report 3, October 2008), p.7: http://www.anu.edu.au/anupoll/images/uploads/ANUpoll_report3_october2008.pdf. 2 Ibid. III It comes as no great surprise then, that the Review attracted a wide range of contributions, including 220 written submissions and 119 comments following release of the Interim Report. Input was received from interested individuals, environmental groups, non government organisations, statutory committees, industry representatives, Government departments and agencies. e review process also involved extensive targeted face‑to‑face consultations and workshops with environmental and heritage groups, Indigenous representatives, industry associations, academics and scientists. is Report took all that into account in reviewing the EPBC Act and, consistent with the objective of protecting the environment and biological diversity and maintaining ecological processes, recommends reforms that: ■ promote the sustainability of Australia's economic development; ■ reduce and simplify the regulatory burden; ■ ensure activities under the Act represent the most ecient and eective ways of achieving desired environmental outcomes; and ■ are based on an eective federal arrangement. An integrated package revolving around nine core elements follows: ■ redraft the Act to better reect 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 eective 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 by the Environment Commission; ■ create a new matter of national environmental signicance for ‘ecosystems of national signicance’ and introducing 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. e Report is divided into two parts. Part I provides a high level summary for opinion leaders and details the associated recommendations. Part II deals with the issues in greater depth, setting out the reasoning behind each of the 71 primary recommendations. Adoption of this integrated package of reforms will place Australia at the forefront of best practice and set the standard for others to follow. Conclusions and ndings that are more advisory in nature are interspersed throughout the text of Part II for your Department to pursue. In closing, I acknowledge the dedication, professionalism and commitment of the Expert Panel and Secretariat who assisted in researching and writing this report. Any errors, omissions or oversights are my responsibility. Yours sincerely Allan Hawke EPBC Act Reviewer 30 October 2009 e Australian Environment Act – Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 October 2009 Final Report © Commonwealth of Australia ISBN 978‑0‑9806735‑2‑4 is work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Commonwealth, available from the Australian Government Department of the Environment, Water, Heritage and the Arts. Australian Government Department of the Environment, Water, Heritage and the Arts GPO Box 787 Canberra ACT 2601 is report is available at www.environment.gov.au/epbc/review i Table of Contents TABLE OF CONTENTS Table of Contents Part I Introduction 2 Background 3 Scope of the Review 4 Purpose of is Report 5 Review Process 6 Issues and Recommendations 8 Operation of the Act 11 Extent to Which the Objects Are Being Achieved 17 Matters of NES 20 Eectiveness of Biodiversity and Wildlife Management 22 Expenditure Review Principles 24 Conclusion 26 Recommendations 27 Part II Chapter 1 Operating Framework of the Act 47 Structure and Complexity of the Act 49 Overarching Principles in the Act 52 Objects of the Act 57 Chapter 2 A National Approach 61 A National Approach to Environmental Protection 62 Working with States and Territories to Improve Eciencies in Impact Assessment 63 Accreditation of State Processes 64 Assessment Methods 68 reatened Species and Ecological Communities Listing 73 Chapter 3 Regional Approaches 77 e Next Generation of Planning for ESD 79 Market Approaches to Secure Regional Biodiversity Outcomes 91 Report of the Independent Review of the ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 ii Table of Contents Chapter 4 Matters of National Environmental Signicance 97 Scope of Environmental Impact Assessment under the Act 99 Ecosystems of National Signicance 101 Addressing Climate Change under the Act 111 Chapter 5 Biodiversity 121 Decoupling of Decisions on Listing from the Prioritisation of Recovery Planning and Conservation Activities 122 Critical Habitat 123 Ecological Communities 124 Protection of Vulnerable Ecological Communities 125 Decisions on Listing Native Species 125 Nomination Process for Listing 126 ‘Emergency’ and ‘Near reatened’ Listing Categories 127 Migratory Species 128 Recovery Planning 129 Key reatening Processes (KTPs) 132 reat Abatement Plans (TAPs) 133 Access to Biological Resources 135 Chapter 6 Current and Emerging reats 141 Climate Change 143 Invasive/ Exotic Species and Conventionally Bred Variants 146 Genetically Modied Organisms 147 Recommended Approach to Current and Emerging reats 148 Chapter 7 Individual Project Approvals 151 e Role of Project Approvals 152 Improving Information 152 Broader Environmental Considerations 157 Consideration of Alternatives 159 Clarifying the Operation of Project Approaches 160 Chapter 8 Heritage 169 e Heritage Listing Process 171 Heritage Protection 174 Commonwealth Heritage 175 Management Plans 178 iii Table of Contents TABLE OF CONTENTS Chapter 9 Protected Areas and Management Planning 181 Current Provisions 182 Recommended Approach for Management Planning 184 Values, Functions and Ecological Character 185 Signicant Impact on Protected Areas 186 Role of the Commonwealth 187 Commonwealth Reserves 188 e National Reserve System 189 Biosphere Reserves 190 Permits for Activities in Commonwealth Reserves 191 Chapter 10 Regional Forest Agreements 195 Demonstration of Environmental Outcomes 197 Chapter 11 Marine and Fisheries 205 Interaction Between the EPBC Act and the Fisheries Management Act 1991 (FMA) 206 Fishery Assessments under the EPBC Act 207 IUCN Listing Criteria and Marine Fish 211 Integrated Marine Management and Bioregional Planning 214 Marine Protected Areas (MPAs) 215 Chapter 12 Wildlife Trade 219 Biosecurity and Live Imports 220 Streamlining Export Provisions 222 Animal Welfare 223 CITES‑Listed Species 224 Transparency and Accountability 225 Possession of Exotic Animals 226 Chapter 13 Decision‑Making under the Act 229 e Minister as Primary Decision‑Maker 230 Principles and Criteria for Decision‑Makers 231 Information in Decision‑Making 235 Report of the Independent Review of the ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 iv Table of Contents Chapter 14 Transparency of Processes under the Act, including Public Participation 239 Publication of Information 240 Public Participation Processes 242 Indigenous Consultation and Involvement in Decision‑Making under the Act 244 Information Delivery and Provision 247 Chapter 15 Review Mechanisms and Access to Courts 251 Reconsideration of Decisions 252 Merits Review 255 Judicial Review and Access to Courts 261 Chapter 16 Compliance and Enforcement, Monitoring and Audit 267 Compliance and Enforcement 268 Particular Manner Decisions 274 Environment Protection Orders 274 Establishment of a Public Register 275 Warning Notices 276 State and Territory Cooperation 276 Use of Independent Expert Witnesses 277 Environment Reparation Fund 277 Post Approvals Monitoring and Audit 278 Chapter 17 Cost Recovery 283 Cost Recovery Actions vs. Fees 285 Cost Recovery under the EPBC Act 285 Chapter 18 Relationship with Other Commonwealth Legislation 291 General Considerations 292 Legislation that could be Incorporated into the Act 293 Aboriginal and Torres Strait Islander Heritage Protection Act 1984 293 Environment Protection (Alligator Rivers Region) Act 1978 294 Environment Protection (Sea Dumping) Act 1983 295 Historic Shipwrecks Act 1976 297 Protection of Movable Cultural Heritage Act 1986 298 Sea Installations Act 1987 299 v Table of Contents TABLE OF CONTENTS Opportunities to Streamline Interactions Between the Australian Environment Act and Other Commonwealth Legislation 300 Environmental Legislation Applicable to the Australian Antarctic Territory, Antarctic and the sub‑Antarctic 301 Airports Act 1996 302 Great Barrier Reef Marine Park Act 1975 304 Telecommunications Act 1997 and Telecommunications Infrastructure 306 Water Act 2007 307 Native Title Act 1993 307 Oshore Petroleum and Greenhouse Gas Storage Act 2006 and Petroleum (Submerged Lands) (Management of Environment) Regulations 1999 307 Chapter 19 National Environmental Accounts 313 Annual Reports 314 State of the Environment Reports 316 National Environmental Information: Past Initiatives and the Current Situation 316 National Environmental Accounts 317 Chapter 20 Governance Arrangements for Decision‑Making 323 Statutory Advisory Committees 324 National Environment Commissioner 329 Appendices 339 Appendix 1: Terms of Reference 340 Appendix 2(A): List of Submitters 341 Appendix 2(B): List of Commentators on Interim Report 348 Appendix 3(A): List of Persons and Organisations Met with as Part of the Formal Public Consultations for the IndependentReview of the EPBC Act 352 Appendix 3(B): List of Attendees of Workshops held for the IndependentReview of the EPBC Act 356 Appendix 4: International Agreements 360 Appendix 5: Acronyms and Abbreviations Used in this Report 363 Appendix 6: Reviewer’s Response to the Independent Review of Australia’s Quarantine and Biosecurity Arrangements (Beale Review) 367 is page is intentionally left blank. [...]... intended to make the Act, and the way it is administered, reflect the principles of ESD better In affirming the principles of ESD as the cornerstone of the Act, some amendments need to be made to the objects and structure of the Act to make their expression clearer An Australian Environment Act for the Future 90 The Act s current title is arguably misleading as it covers some aspects of the legislation... protection of the environment. 7 11 In 1999, the Commonwealth Parliament passed the EPBC Act which repealed the EPIP Act and merged a number of other statutes into a single overarching framework for national environmental regulation 12 PART ONE Part 1 The changes wrought by the commencement of the Act were far reaching For the first time, there was a national approach to environmental protection and the Environment. .. 2 redraft the Act to better reflect the Australian Government’s role, streamline its arrangements and rename it the Australian Environment Act; mandate the development of foresight reports to help government manage emerging environmental threats Report of the Independent Review of the ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 Background 7 The Australian Constitution (the Constitution)... added to the title To specify all the matters dealt with in the Act would create a cumbersome title Heritage values and social, economic and cultural qualities and characteristics of places all fall within the concept of environment This concept should be reinforced in the legislation 91 A change in the Act s title to the Australian Environment Act would embrace the all encompassing nature of the environment. .. PART ONE Part 1 Merging the AHC Act provisions into the Australian Environment Act would mean that the AHC and users of the heritage legislation would be able to refer to a single Act when determining the role and functions of the AHC It would also bring the AHC in line with the statutory advisory bodies established under the Act PART ONE 19 Part 1 Indigenous Involvement 140 The Act provides for involvement... 158 CLR 1 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s.522A PART ONE 3 Part 1 Scope of the Review Terms of Reference 14 The scope of the Review was determined by s.522A of the Act and the Terms of Reference (see Appendix 1) In summary the Review was asked to assess the operation of the Act and the extent to which its objects have been achieved since the Act commenced The Review... where the Commonwealth’s environmental impact assessment and approval process was triggered in an ad hoc fashion and by factors not necessarily related to environmental concerns The Environment Minister’s Role as Decision‑Maker 60 The Act establishes the Environment Minister as the primary decision‑maker on environmental matters This is a fundamental and positive change from the previous regime where the. .. IAC and the TSSC The requirements for these bodies to provide advice prior to key decisions being made under the Act, and the ability for the Minister to call on the expertise of these bodies when considered necessary, is an important feature of the Act and is essential in ensuring that decisions are made on the best available advice Strength of the Compliance and Enforcement Regime 64 The Act provides... October 2008, the Minister for the Environment, Heritage and the Arts, the Hon Peter Garrett AM MP, commissioned an independent review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) 2 The Review was undertaken in accordance with s.522A of the EPBC Act and the Terms of Reference (Appendix 1) 3 This Report presents the findings and recommendations of the Review in... ‘comprehensive regime for the protection of the environment , 3 and regulation of most environmental matters was left to the States and Territories The Environment Protection (Impact of Proposals) Act 1974 (Cth) (EPIP Act) only applied to decisions involving the Commonwealth or a Commonwealth authority, and the Environment Minister’s role was advisory only.4 The trade and commerce power was the Commonwealth’s . pleased to provide you with the Report of the Independent Review of the EPBC Act 1999 (the Act) in accordance with section 522A. As well as the operation of the Act and the extent to which its objects. Report of the Independent Review of the Final Report e Australian Environment Act OCTOBER 2009 Report of the Independent Review of the ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999. follows: ■ redraft the Act to better reect the Australian Government’s role, streamline its arrangements and rename it the Australian Environment Act; ■ establish an independent Environment Commission