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25 Jun 2020

Samuel independent review of the EPBC Act: where are we at?

By Brad Wylynko, Kathryn Pacey, Nick Thomas and Kate McLean

The Prime Minister's and Minister's comments indicate that changes to the EPBC Act may be introduced ahead of the final report.

There’s a growing anticipation that the Samuel review of Australia’s national environmental law – the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) – will lay the groundwork for significant changes.

As the due date for the interim report from the Samuel review approaches, we take a look at what the Australian Government has been saying about the review recently and highlight some key opportunities for effective reform.

Australian Government’s environmental law reform agenda

In his address to the CEDA "State of the Nation Conference" last week, Prime Minister Scott Morrison committed the Commonwealth to substantially reducing the time required to obtain environmental approvals under the EPBC Act. He set an aspirational target of halving the approval time for major projects, and especially 15 high priority infrastructure projects, and raised the need for approval bilateral agreements (which would accredit States and Territories to grant EPBC Act approvals). This was in support of the Commonwealth's broader objective to stimulate economic recovery from the COVID-19 pandemic.

The Prime Minister's comments were made in the context of Professor Graeme Samuel's review of the EPBC Act. This is the second ten year review of the Commonwealth EPBC Act. An interim report is expected to be delivered by the end of June.

The interim report is an important milestone in the review, and it might have considerably more impact than many other interim review reports. In addition to the Prime Minister's comments, the Commonwealth Environment Minister, Susan Ley, has foreshadowed that changes recommended by the interim report may lead to proposed amendments to the EPBC Act to be introduced to the Commonwealth Parliament in October 2020.

Context for the interim report

The Samuel review team issued a Discussion Paper in December 2019 to guide and encourage interested parties in providing submissions. The Discussion Paper notes that over the twenty year life of the EPBC Act, the health of the Australian environment and its biodiversity has continued to decline. Many individuals or businesses also consider that the assessment of actions regulated under the EPBC Act has caused, or continues to cause, unnecessary delays and uncertainty without delivering benefits to the environment.

Six areas for reform were highlighted:

  • the role of the EPBC Act;
  • better environment and heritage outcomes;
  • more efficient and effective regulation and administration;
  • Indigenous Australians' knowledge and experience;
  • community inclusion, trust and transparency; and
  • innovative approaches.

More than 3000 submissions were received.

Key areas for reform

Drawing on the submissions, and taking account of the Prime Minister and Minister's comments, we have highlighted below some of the key opportunities for early reform:

1. Streamlining Commonwealth and State/Territory processes

Clearly, as noted by the Prime Minister, there is a need to streamline or harmonise Commonwealth and State/Territory processes.

Some of the ways this may be achieved include:

  • exploring the potential for the Commonwealth, with the States and Territories, to set national standards in relation to matters of national environmental significance; and
  • establishing a system which removes duplicative Commonwealth approval requirements, possibly on the basis that those national standards are applied in State and Territory approval processes – this could be done, for example, by approval bilateral agreements with the States and Territories, short form legislative changes to achieve a similar result without the need for bilateral agreements, and/or strengthening the EPBC Act condition setting policy to accredit State approval schemes.

2. Offsets

The potential for offsets to compensate for residual environmental impacts was identified by many submissions. This could involve amending the Commonwealth offsets policy to include:

  • adopting a clear definition of what measures will constitute acceptable offsets;
  • closer co-ordination with the State and Territory environmental offsets regimes, including the possibility of establishing a single entity that is responsible for co-ordinating environmental offsets; and
  • the ability to provide financial offsets where this would achieve more strategic offset outcomes.

As some Government and other stakeholders have indicated, it will be important to have a robust mechanism to evaluate the beneficial environmental effectiveness of offsets.

3. Structure of Commonwealth regulator

The structure, resourcing and function of a Commonwealth regulator was identified in submissions as another issue. To address this, consideration could be given to establishing an independent body to administer the EPBC Act, noting that such a body would need to be appropriately resourced both in terms of staff numbers and staff skill set.

Other options to address the resourcing and capacity of the Commonwealth regulator might include consideration of a change to the resource model for the Department to ensure that it is able to carry out its functions effectively, including by:

  • decentralising officers; and
  • equipping Commonwealth officers to become actively involved at an early stage of the assessment, whether or not there is already State assessment underway – this could provide a shorter overall timeframe for determinations than if most or all of the Commonwealth evaluation is done after the State assessment is completed.

4. Strategic assessments

Strategic assessments were identified in some submissions as a potential tool for streamlining approvals and bringing greater certainty to the assessment process. However, the current strategic assessment process is often complex and lengthy, and so the benefits of strategic assessment might not be realised for several years. Consideration could be given to mechanisms that deliver effective strategic assessments in shorter timeframes, including by reframing the strategic assessment process, and by allowing strategic assessments to focus on a single matter of national environmental significance (or aspect) and then facilitating project assessments for projects which also involve additional matters.

What's next and what do you need to do?

Given the Prime Minister's clear public statements, the potential for real reform from the Samuel review has some impetus. Harmonisation of Commonwealth and State/Territory processes look to be a key focus.

The Prime Minister's and Minister's comments indicate that changes to the EPBC Act may be introduced ahead of the final report, so stakeholders should closely monitor the progress of the independent review in the coming months and consider what the interim report means for them.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.