Australia’s current law on environmental protection is failing and needs a radical overhaul, a new report has found.

Releasing his Interim Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999, Professor Graham Samuel AC has described the current Act as ‘ineffective’.

In his report, Samuel found that:

  • Australia’s natural environment and iconic places are in decline and are under increasing threat.
  • The current environmental trajectory is unsustainable.
  • The EPBC Act is ineffective and does not enable the Commonwealth to play its role in protecting and conserving environmental matters that are important for the nation.
  • The Act has failed indigenous Australians, whose traditional knowledge and views have not been adequately valued in decision making and whose aspirations for managing their land are not met by the current Act.
  • There is duplication between the Act and state/territory regulatory frameworks.
  • The community does not trust the act to deliver effective environmental protection whilst industry views it as cumbersome, ineffective and slow.
  • Legal review is used to discover information and object to a decision rather than to test and improve decision-making consistent with the law
  • Decision makers, proponents and the community lack access to data and there is no national source of truth on which people can rely for information
  • Compliance and enforcement of the Act is weak, with serious enforcement actions being rarely used and penalties being insufficient to provide an effective deterrent to damaging nationally valuable assets.

“The EPBC Act is ineffective,” Samuel wrote.

“It does not enable the Commonwealth to effectively protect environmental matters that are important for the nation.

“It is not fit to address current or future environmental challenges.”

Since its commencement in June 2000, the current Environmental Protection and Biodiversity Conservation Act aims to protect and conserve Australia’s environment, biodiversity and heritage, and to promote ecologically sustainable development through the conservation and sustainable use of natural resources.

Under the Act, Commonwealth approval is required before any action is taken that could significantly impact one or more of nine matters of ‘national environmental significance’.

This includes national and world heritage sites, internationally important wetlands, listed threatened species, listed migratory species, the marine environment, the Great Barrier Reef Marine Park, protection of water resources from coal mines and coal seam gas developments and protection of the environment from nuclear activities.

In his report, Samuel said compelling evidence was presented to the review that Australia’s natural environment and iconic places are in overall decline and are under growing threat from land-use change, habitat loss and degradation, feral animal and invasive plant species and the growing effect of climate change.

He said the operation of the current Act makes positive environmental outcomes difficult to achieve.

Whilst significant efforts are made to assess and list threatened species, not enough is done to protect them once listed.

In response, Samuel said fundamental reform of national environmental law was needed.

The centrepiece of this would involve creation of a new set of National Environmental Standards, which would be developed by the Commonwealth in consultation with states and other stakeholders and should be legally enforceable.

Compliance with the Act would be enforced by a new independent regulator which would not be subject to actual or implied political direction from the Commonwealth Minister.

Other recommendations include

  • A specific standard for indigenous engagement and a comprehensive review of national laws which protect indigenous cultural heritage
  • Greater devolution in decision making to states and territories and transparent accreditation of regulators.
  • A comprehensive longer-term redrafting of the Act to make it simpler to understand
  • Reform to improve the transparency of decision making.
  • A new national ‘supply chain’ of information to provide decision makers, community members and project proponents with access to the latest data, information and knowledge with a single source of truth.
  • A coherent framework to monitor and evaluate the effectiveness of the EPBC Act along with a revamp of national State of the Environment reporting and accelerated delivery of national environmental economic accounts.
  • A clean-up of rules surrounding offsets and a requirement for project proponents to exhaust all reasonable options to avoid or mitigate environmental impacts before resorting to offsets in order to meet their environmental obligations.

Samuel says reform is difficult but should not be avoided.

“The proposed reforms are substantial, but the changes are necessary to set Australia on a path of ecologically sustainable development,” he said.

“This path will deliver long-term economic growth, environmental improvement and the effective protection of Australia’s iconic places and heritage for the benefit of current and future generations.”