10 Aug 2020

CU LAB: EPBC Act Review Interim Report - A snapshot and the proposed changes

On 20 July, Professor Graeme Samuel AC released the interim report for the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).


Kathryn Pacey shares the preliminary views on the EPBC Act and how it operates as set out in the interim report together with the proposed changes which have the potential to result in fundamental reforms.

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The Commonwealth becomes involved in the assessment of projects under the Environment Protection and Biodiversity Conservation Act where projects impact on matters of national environmental significance. 

Professor Samuel's interim report has been released for public consultation and at the moment it is simply an interim report.  The recommendations of that report are centred primarily around the concept of legally enforceable national environmental standards being introduced and those national environmental standards will be designed to encourage public confidence in the administration of the EPBC Act, transparency and decision making for the EPBC Act and support the devolution of decision making to the States and Territories. 

Other recommendations that Professor Samuel has made in the interim report include around increased enforcement and compliance powers for the EPBC Act, increased transparency and accessibility to data and improving and increasing indigenous engagement for decisions made under the EPBC Act.  Professor Samuel also recommends that there be an increased focus on restoration of the environment as opposed to allowing incremental destruction and that includes regional planning and a reform of the environmental offsets regime.  Currently what has been released for consultation is an interim report into a statutory review of the EPBC Act.  The interim report in itself does not have any legislative force and does not mean that there will be changes made to the regime. 

The Commonwealth Environment Minister did indicate at the press conference during the release of Professor Samuel's report that the government would be seeking to introduce legislation in late August this year to implement some of the interim recommendations of the report.  The primary objective of those legislative amendments will be to provide for the legally enforceable National Environmental Standards as recommended in Professor Samuel's report and also to facilitate increased evolution of decision making processes to the States and Territories.  The Commonwealth Environment Minister has also committed to facilitating increased indigenous engagement for the EPBC Act. 

The next steps is that following the consultation process Professor Samuel will deliver a final report to the Commonwealth Environment Minister on the 31st of October this year.  The report does flag and recommend three phases of legislative reform, starting from an initial band aid type process to correct immediate problems with the EPBC Act that can be easily fixed and ends with a phase three process which is a fundamental reform of the EPBC Act.  If the government accepts some or all of those recommendations we would expect to see that there will be broad scale reform to the EPBC Act which will have implications for the way that projects are assessed in Australia moving forward.  If the legislation introduced by the Commonwealth Environment Minister passes and prior to the finalisation of Professor Samuel's report we would expect to see work commence on the development of the legally enforceable National Environmental Standards.  As those National Environmental Standards will underpin the administration and implementation of the EPBC Act we expect those standards will be at a level which is granular, to quote Professor Samuel and will need to be quite detailed in order for decision making to be able to reflect the very complex environmental interactions that are dealt with through EPBC Act decisions.