Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report

Chapter 22: Administration under the EPBC Act

Key points

Funding

  • Submissions called for increased funding to be provided to DEWHA so that it can properly carry out its functions as administrator of the EPBC Act.
  • The funding for key functions and initiatives under the EPBC Act was seen by many to inhibit the effectiveness of the Act.
  • There is a need for increased training and development of DEWHA staff responsible for supporting EPBC Act processes.

Commonwealth agency environmental reporting (s.516A)

  • The adequacy of s.516A reporting as a means of accurately measuring the extent to which ESD is integrated into whole of government activities and decision-making was called into question.
  • It was observed that there has been a lack of compliance by Australian Government Agencies with the reporting requirements under s.516A.
  • Submissions suggested DEWHA take a more proactive role in seeking to encourage compliance with s.516A, such as through the use of guidelines. Others suggested the establishment of a Commonwealth Sustainability Commissioner to, among other things, monitor and report on agencies’ compliance with s.516A.

Introduction

22.1This chapter of the interim report deals with some administrative matters that were raised in public submissions and warrant noting. However, they do not fit neatly into the discussions in earlier chapters and hence are included here.

Funding

Key points raised in submissions

22.2The issue of funding for DEWHA was raised by the broad cross-section of the interest groups that made submissions to the review; these included environmental non-government organisations (NGOs), industry NGOs, individuals and academics, as well as State governments.[1]

22.3Most of these submitters were of the view DEWHA was hampered in its administration of the EPBC Act by a lack of resources and needed to be better resourced. In this context, resources included people, information and funds.

22.4With respect to staffing, there was a perceived need for DEWHA to employ trained staff and to develop a program to retain staff within the Department, to prevent what was perceived as a high turnover rate.

22.5The use of accredited environmental consultants was suggested as a resource to improve the timeliness and consistency of decision-making, especially in the area of environmental impact assessments (EIA).[2]

22.6The National Farmers’ Federation (NFF) in its submission made reference to the seconded DEWHA Resources Liaison Officer who ‘provide[d] effective communication and information “on the ground” to farmers and rural stakeholders in relation to the EPBC Act.’ The Liaison Officer provides advice and information and practical assistance with aspects of referral, assessment and approval processes and the consultative processes. With the recent cutback in funding for on-ground regional-based Natural Resource Management (NRM) facilitators (Landcare in particular), the role of the out-posted Officer was viewed by the NFF as becoming increasingly important to ensure that farmers were aware of their responsibilities under the EPBC Act. [3]

22.7This concept was taken up by the Mineral Council of Australia (MCA) which was of the view that ‘additional support for the minerals industry, as per the “Seconded Officer” model applied to the National Farmers Federation, could also ensure that referrals are only made when required, rather than through a risk-averse approach to project management’.[4]

22.8Some submitters saw accreditation of State and Territory processes as a means of freeing up funds for matters of NES that were not being effectively protected by other means.

22.9With respect to information gathering, it was suggested there that there was a very real need for Government to invest in more sophisticated data gathering and analysis on a national level. Submitters thought that resources should be committed to providing for long-term natural resources and ecosystem data collection programs, adequate monitoring and evaluation mechanisms, and the provision of supportive tools.[5]

22.10The clear message obtained from the submissions referring to the topic of funding, and of major concern, was that as a result of a lack of financial resources, DEWHA was not in a position to address key operational issues arising under the Act. These functions include:

  • assessments and approvals (including strategic assessments);
  • compliance and enforcement processes (including on the ground investigation);
  • listings;
  • recovery planning;
  • threat abatement plans;
  • critical habitat protection;
  • conservation planning;
  • bioregional plans;
  • ecosystem management; and
  • heritage listing, particularly historic heritage.
  • In terms of its existing budget allocation, a common theme was that funding should be integrated more fully with EPBC Act processes. The Southern Rivers Catchment Management Authority was of the view that:

There is opportunity for the increased alignment of funding priorities with EPBC Act interests to ensure that matters of national environmental significance have an appropriate proportion of NRM funding invested in them, for example recent Caring for Country streams and Threatened Species Network grants. This should also serve to encourage further listing of species, communities and heritage items under the EPBC Act with groups and organisations seeking to further their eligibility for Federal Funding. [6]

22.12There was concern, however, that relying on NRM funding for wide-ranging species of national significance would be of limited success as regional bodies were not necessarily concerned with issues that went beyond their geographical boundaries.[7]

22.13Some concern was also expressed that the bulk of the limited resources available to DEWHA went towards undertaking EIA processes, and in evaluating the actions of industries that were already highly regulated and using best practice environmental methods.[8] This was regarded as an inefficient use of funds.

22.14Another important issue raised in some of the submissions was the need for an assessment of the net environmental benefit of an investment to be undertaken before embarking on the expenditure of the limited resources available.

22.15As the Department of Sustainability and Environment, Victoria pointed out in its submission:

The environmental benefit of investment can vary greatly according to the shape of the investment. For example, two possible scenarios for investing the same sum of money can involve:

(i)large, short term injection of funds; versus

(ii)small (relatively) annual expenditure over the long term.

These two investment patterns may have quite markedly different levels of environmental effectiveness. An understanding of these differences is particularly pertinent to the management of threatening processes and listed threatened species and communities. The Investment Framework for Environmental Natural Resources which is currently used to assess Caring for Our Country grant applications may provide a structure within which to make these assessments and improve the effectiveness of investments. [9]

22.16The lack of information provided in Departmental Portfolio Budget Statements and Annual Reports was also perceived as an obstacle to making detailed observations about investments in EPBC Act activities. In the words of the Australian Conservation Foundation, ‘[w]e need a clear picture of how well resourced EPBC initiatives are to feed back into monitoring and performance evaluation to assess how successful actions have been and what can be done to improve performance into the future’.[10]

Senate inquiry into the operation of the EPBC Act

22.17The issue of funding was raised by the Senate Committee in its report on the operation of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

22.18The Committee noted the calls for greater resourcing for DEWHA and in this instance, considered that the evidence base for these calls appeared compelling. The Committee stated in its report that:

The committee is strongly supportive of more resources being allocated to ensure compliance with the Act. At present, the Commonwealth incurs significant costs in ensuring that matters of national environmental significance are protected and impacts of actions are effectively mitigated.[11]

22.19In relation to resourcing, the Committee recommended:

Recommendation 4

The committee recommends that the government give urgent consideration to increasing the resources available to the department in the areas of assessment, monitoring, compliant investigation, compliance, auditing projects approved under Part 3, and enforcement action. [12]

22.20The Additional Comments from the Australian Greens, contained in the Senate Committee’s report, also dealt with resourcing issues. The Greens expressed particular concern about the lack of utilisation and resources of the EPBC Act provisions for conservation agreements, covenants, critical habitat protection, bioregional plans, recovery plans, wildlife conservation plans and threat abatement plans.[13]

Discussion of key points

22.21The extent of the undertaking that DEWHA is tasked with in its role of administering the EPBC Act is vast. Its functions are broad ranging and critical to the protection of the environment and the conservation of biodiversity. Efficient delivery of these functions is also critically important to the working of the economy more broadly.

22.22Certain aspects of DEWHA’s activities are more in the focus of the public’s attention than others, but that does not mean that the Department is not conscious of, or concerned about, all of the many different aspects of its functions. Nor does this necessarily mean that its spending is skewed to these more obvious functions.

22.23Lack of funding is an ongoing issue which has meant, and continues to mean, that strategic decisions have to be made regarding allocation of the Department’s limited funds. However, this is a situation not uncommon for Government Departments which, like other organisations, have limited resources to utilise to achieve positive outcomes.

22.24It is encouraging to note that submitters recognise the limitations within which DEWHA is operating and that DEWHA officers persist in striving to achieve efficiencies in terms of maximising the effectiveness of the available resources. It is also pleasing to note that the Department’s chronic resourcing issue is a matter that was recognised by the Senate Committee in its inquiry into the operation of the EPBC Act.

22.25The success of the NFF Liaison Officer is one example of a possible cost-saving to DEWHA. Accurate and consistent advice and information is readily available to farmers about the Act’s operation and timely assistance given in navigating the various processes provided for in the Act, thereby avoiding delays and duplication of effort. The expansion of this concept to include other industry-specific experts as suggested by the MCA should be explored.

Commonwealth agency environmental reporting (s.516A)

Current provisions of the EPBC Act

22.26The Australian Government’s commitment to the principles of ecologically sustainable development (ESD) is set out in its National Strategy on Ecologically Sustainable Development (NSESD) which was released in 1992. Those principles are defined in s.3A of the EPBC Act.

22.27The Commonwealth recognises that, through its policies and operations, it has a significant effect on ecological sustainability. To establish a framework for monitoring the impact of Government activities on the environment, the Government has, since 2000, required all Commonwealth agencies, Commonwealth authorities and Commonwealth companies to report on ESD activities and outcomes in their annual reports.

22.28Section 516A of the EPBC Act provides the legislative basis for this additional environmental reporting requirement. The matters listed in s.516A(6) and which are to be reported on are:

(a)how the activities of, and the administration (if any) of legislation by the agency, accorded with the principles of ESD;

(b)how the outcomes (if any) for the agency specified in an Appropriations Act contribute to ESD; (c) the effect of the agency’s activities on the environment;

(c)any measures the agency is taking to minimise the impact of its activities on the environment; and

(d)the mechanisms (if any) for reviewing and increasing the effectiveness of those measures.

Key points raised in submissions

22.29The submissions dealing with this issue indicate that the requirements of s.516A were viewed as a positive step in terms of reporting on the state of the environment. However, there were concerns about the level of compliance with these reporting requirements. This made it difficult to gauge the level of implementation of ESD at a whole of government level.

22.30In the words of the submission of the Environmental Defender’s Office (EDO) NSW:

The introduction of s.516A … stemmed from a recognition that the Commonwealth government has an important role to play in setting a strong example for the corporate sector on sustainability reporting and corporate social responsibility. However, the introduction of s.516A has failed to translate to robust and meaningful sustainability reporting by Commonwealth agencies, and is therefore undermining this important role.[14]

22.31The view of Mr Graham Bowrey and Dr Ciostan Smark was that while Financial Management and Accountability Act 1997 bodies were perceived to have a high level of compliance, the compliance rate of Commonwealth authorities operating under the Commonwealth Authorities and Corporations Act 1997 (CAC Act) varied. Of most concern was the lack of compliance by Commonwealth companies under the Corporations Act 2001 and the CAC Act[15]. To go some way to addressing this issue, this submitter stated:[16]

The development of an appropriate training program to ensure the level of environmental performance and management disclosure improves the transparency of Commonwealth government organisations whilst also appropriately discharging their environmental reporting accountabilities under the EPBC Act. (Sanctions imposed on organisations for not complying with sections 516A of the EPBC Act would be counterproductive.) …

We recommend an explanatory book be developed and published to allow preparers of accounts to see examples of disclosures and to allow preparers of accounts to better appreciate reporting alternatives.

22.32The EDO NSW, too, observed that many agencies were not complying with the requirements of s.516A. However, their view was that this was despite the availability of good government guidelines providing generic ESD and environmental performance indicators.

22.33The submission of EDO NSW, commented on each of the five s.516 reporting requirements. In order to provide a complete picture of the extent of the environmental reporting expected, and to understand the deficiencies in the reporting that is occurring, it is appropriate to go through each requirement in detail.

Item (a) – reporting on ESD activities

22.34In terms of reporting on ESD activities, EDO NSW stated:

This section requires agencies to report on how their activities accord with the principles of ESD. However, some agencies simply adopt a ‘tick a box’ approach in relation to their activities and programs rather than explaining how these activities are consistent with the principles of ESD. As ANAO observed in 2003:

There as been a tendency just to list a range of activities of varying size and significance. Few agencies attempt to provide a clear picture of their overall operational environmental impacts and the contribution of their policies, programs and legislation to ESD.

This is still the case five years on. …

This level of reporting is insufficient. Indeed, simply demonstrating that an agency policy or activity has economic, social or environmental ramifications is not of itself evidence that the policy or program accords with ESD. ESD requires the integration of all three considerations into decision-making. It must be evident that an agency’s programs and decision-making frameworks seek to reconcile economic gains and environmental sustainability. A ‘balance’ must be apparent.

Item (b) – identifying ESD outcomes

22.35This provision requires reporting on how ESD is implemented in decision-making and how it has influenced decisions. As EDO NSW expressed it:

ESD is not meant simply to be a process. It is meant to ensure that the outcome of an activity fully integrates economic, social and environmental considerations. For example, a decision to approve a development should demonstrate that in addition to having economic benefits, the development approval incorporates appropriate environmental conditions, including buffer zones and the requirement for rehabilitation and monitoring. This level of analysis is not apparent in s.516A reports.

Item (c) – effect of activities on the environment

22.36Subparagraph 516A(6)(c) requires an agency to report on the direct impact its activities have had on the environment. In the words of EDO NSW:

This [provision] has two components. First, agencies should report on how their operational activities directly impact on the environment, such as its waste output, greenhouse gas emissions, water use, etc. Second, the agency is required to report on how its actual business, including its administration of legislation and its broader activities, are affecting the environment. …

The EDO has observed that although operational impacts are generally well reported, some agencies are still not reporting on the full environmental effects of their operational activities. …

Moreover, we have seen that of those agencies that do report on their environmental impacts, none of them report on the environmental impacts of their broader activities.

22.37DEWHA did not escape criticism of its s.516A reporting in this regard. An overview of the Department’s activities was reported, however, it was suggested that annual reports should contain details of the amount of land clearance permitted by Commonwealth, as well as annual reports of numbers and areas protected or enhanced through regulatory instruments, and reports on numbers and areas protected or enhanced through other policy programs.

Item (d) – measures taken to minimise the impact of activities on the environment

22.38This reporting requirement relates to operational activities as well as to broader legislative activities. Again, the complaint was that while operational aspects were reported satisfactorily, there was no reporting on how agencies seek to minimise the environmental impacts of their legislative activities. It was noted that DEWHA’s 2007-2008 annual report contains no details of how the Department will minimise the environmental impacts of its functions.[17]

Item (e) – identification of mechanisms for reviewing and increasing the effectiveness of those measures

22.39Monitoring of the progress/success of measures taken is a key element in ensuring the implementation of sustainable practices. As with all monitoring activities, this requires performance indicators, actions and outcomes.

22.40The EDO NSW noted that some agencies had established Environmental Management Systems that provided a good framework for the review of the effectiveness of measures taken to minimise adverse environmental impacts and suggested that this should be a mandatory requirement.