Independent Review of the Environment Protection and Biodiversity Conservation Act 1999

Independent review of the
Environment Protection and Biodiversity Conservation Act 1999

Interim Report

Independent Review of the Environment Protection and Biodiversity Conservation Act 1999
Interim Report

© Commonwealth of Australia

ISBN 978-0-9806735-1-7

This 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

This interim report is available at www.environment.gov.au/epbc/review

Table of contents

Chapter 1: Introduction 6

Background to the review 6

Review process to date 6

Other reviews on foot 8

Purpose of the interim report 9

The way forward 9

Chapter 2: Commonwealth Role and EPBC Act objectives 32

Key points 32

Sources of power for Commonwealth involvement in environmental matters 32

Context in which the Act operates 39

Objectives of the EPBC Act 41

The role and meaning of ‘ecologically sustainable development’ 46

Interaction with State, Territory and local governments 48

Current and emerging environmental challenges for the Commonwealth 52

Chapter 3: Scope of Environmental Impact Assessment under the EPBC Act 54

Key points 54

Matters protected under the Act 54

Potential new matters of NES 59

Definition of ‘action’ 62

Definition of ‘significant impact’ 64

Actions that do not require approval under the Act 65

Effect of ‘triggering’ the Act 68

Chapter 4: Environmental Impact Assessment 70

Key points 70

EIA – project-by-project assessment 70

Referrals 70

Assessments 77

Are assessments producing the right outcomes? 88

Public Participation in EIA 89

Cumulative impacts 97

Chapter 5: Prior Authorisation and Continuing Use Exemptions 104

Key points 104

Prior Authorisation 104

Continuing use 106

Chapter 6: Forestry 111

Key points 111

Chapter 7: Land clearance 127

Key points 127

Land Clearance and the EPBC Act 127

Chapter 8: Climate Change 146

Key points 146

Incorporating climate change in the Act’s objects 146

Climate change mitigation 146

Climate change adaptation 154

Chapter 9: Water Issues 159

Key points 159

Water extraction as a matter of NES 159

Wetlands or wild rivers as a matter of NES 163

Management of wetlands 165

Emergency water-related actions 168

Chapter 10: Strategic Assessments and Bioregional Planning 170

Key points 170

Chapter 11: Heritage 192

Key points 192

The assessment and listing processes 192

Protecting heritage values versus protecting heritage places 194

Management planning 196

Heritage protection 197

Commonwealth heritage 198

The different heritage lists 201

Complexity of the EPBC Act 202

The Australian Heritage Council 204

Chapter 12: Threatened species and ecological communities 205

Key points 205

Listing of threatened species and ecological communities 205

Migratory species – birds, mammals and reptiles 216

Chapter 13: Biodiversity conservation, recovery planning and threats management 218

Key points 218

Current provisions of the Act 218

Landscape approaches to protecting biodiversity 225

Chapter 14: Protected Areas 227

Key points 227

Commonwealth reserves and conservation zones 227

Potential new habitat-related matters of NES 231

Chapter 15: Biodiversity – Marine and Fisheries 250

Key points 250

Fishery assessments 250

Listing of marine fish 254

Marine Protected Areas / marine bioregional planning 258

Migratory marine species 262

Chapter 16: Access to Biological Resources 254

Key points 254

Chapter 17: Indigenous information and involvement under the EPBC Act 257

Key points 257

Chapter 18: Wildlife Trade, Live Imports and Biosecurity 266

Key points 266

Live import listing 266

CITES 268

Genetically Modified Organisms (GMO) 271

Biosecurity – invasive species 273

Record keeping (exotic birds) 277

Chapter 19: Governance and Decision-making 280

Key points 280

Advisory bodies 280

Public participation 289

Decision-making under the Act 290

Ministerial discretion under the EPBC Act 295

Chapter 20: Review Mechanisms under the and Access to Courts 326

Key points 326

Review of administrative decisions 326

Access to courts 335

Chapter 21: Enforcement, Compliance, Monitoring and Audit 341

Key points 341

Compliance and enforcement 341

Post approvals monitoring and audit 341

Chapter 22: Administration under the EPBC Act 347

Key points 347

Funding 347

Commonwealth agency environmental reporting (s.516A) 350

Chapter 23: Reducing regulatory burden & streamlining processes 358

Key points 358

Commonwealth and State and Territory relations 358

Duplication of Commonwealth processes 363

Mechanisms for efficiencies contained in the EPBC Act 367

Chapter 24: Cost Recovery 362

Appendix 1: Terms of Reference 364

Appendix 2: List of Submitters 365

Appendix 3: List of Public Consultations 371

Appendix 4: International Agreements 373

Appendix 5: Acronyms and Abbreviations used in this Report 376

Chapter 1: Introduction

Background to the review

1.1  The independent review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)was announced by the Minister for the Environment, Heritage and the Arts, the Hon Peter Garrett AM MP (the Minister), on 31 October 2008.

1.2  The EPBC Act Review, which is being carried out in accordance with section 522A of the Act, will examine the operation of the Act and the extent to which it is achieving its objects. The review is to be completed by 31 October 2009.

1.3  The terms of reference require the review to examine the appropriateness of current matters of national environmental significance (NES) and the effectiveness of biodiversity and wildlife conservation arrangements under the Act, having regard to key Australian Government policy objectives including the following:

·  to promote the sustainability of Australia’s economic development to enhance individual and community well-being while protecting biological diversity and maintaining essential ecological processes and systems;

·  to work in partnership with the States and Territories within an effective federal arrangement;

·  to facilitate delivery of Australia’s international obligations;

·  to reduce and simplify the regulatory burden on people, businesses and organisations, while maintaining appropriate and efficient environmental standards in accordance with the Australian Government’s deregulation agenda; and

·  to ensure activities under the Act represent the most appropriate, efficient and effective ways of achieving the Government’s outcomes and objectives consistent with the Expenditure Review Principles.

1.4  The terms of reference also require the review to seek input from State and Territory Governments, members of the community and industry. A copy of the terms of reference for the review is attached to this report (Appendix 1).

1.5  The review is being undertaken by Dr Allan Hawke supported by a Panel comprising:

·  Professor Tim Bonyhady – Director of the Australian Centre for Environmental Law and the Centre for Climate Law and Policy at the Australian National university.

·  Professor Mark Burgman – Adrienne Clarke Chair of Botany and Director of the Australian Centre of Excellence for Risk Analysis at the university of Melbourne.

·  The Honourable Paul Stein AM – former judicial officer in various New South Wales courts from 1983 to 2003, including the Land and Environment Court, the Court of Appeal and the Supreme Court.

·  Rosemary Warnock – the former CEO of Castrol Asia Pacific and more recently CEO of the Clean Energy Council in 2008. She is currently an Executive Mentor with Merryck & Co.

Review process to date

Discussion paper

1.6  On 31 October 2008, the review published a discussion paper which provided an explanation of the key provisions of the Act, a summary of how the provisions have been implemented since the Act came into effect in 2000, and posed key questions regarding the operation of the Act to help stimulate discussion on the review.

1.7  The purpose of the discussion paper was to encourage input from the public into the review by inviting written submissions.

Written submissions

1.8  The review’s initial invitation for written public submissions attracted a total of 212 public submissions. Submissions were received from a wide range of sectors. As noted in the Summary of Public Submissions[1], many submissions received were from environmental non-government organisations (NGO) (38%), but a significant number of submissions were received from other NGOs, such as industry bodies (16%) and individuals (19%). Some submissions were from research groups or academics (8%) and individual corporations (6%). Submissions from Government bodies represented 14% of the total submissions received.

1.9  A list of submitters and electronic versions of submissions that were not confidential are available at http://www.environment.gov.au/epbc/review/submissions/index.html

1.10  A list of submitters can also be found in Appendix 2 of this report.

Summary of Public Submissions

1.11  A Summary of Public Submissions is available on the review’s website. It provides some basic information about submitter groups and common themes raised by those groups. It aims to capture, as far as possible, the common issues raised in submissions received at or before 1 May 2009 but is not intended to be a comprehensive list of all the issues and comments raised with the review.

1.12  This document is for information only and is not for public comment. It is available at http://www.environment.gov.au/epbc/review/publications/index.html

Targeted face-to-face consultations

1.13  In addition to the written submissions received, the review held a series of targeted face to face consultations. These consultations occurred in all major capital centres throughout Australia during the period March 2009 to May 2009. Input was sought from submitters and others with an interest in the EPBC Act.

1.14  The purpose of this phase of the public engagement process was to ensure broad-based input to the review.

1.15  Some additional materials were received following the close of the formal submission period during face-to- face consultations. These have been considered by Dr Hawke and the Expert Panel during the preparation of this report.

1.16  A list of organisations and individuals who participated in these consultations is provided at Appendix 3.

Workshops

1.17  One of the issues the review wished to explore was landscape-scale approaches to biodiversity protection. As part of this process, the review convened a workshop which explored issues relevant to assessing the effectiveness of the biodiversity conservation provisions in the EPBC Act. The workshop considered options for broader landscape or ecosystem approaches to biodiversity conservation.

1.18  In addition to members of the expert panel, workshop attendees included the two scientific consultants to the review (Professor David Lindenmayer (ANu) and Professor Hugh Possingham (university of Queensland)) and Dr Mark Stafford-Smith (CSIRO), Dr Michael Dunlop (CSIRO), Dr Simon Ferrier (CSIRO) Associate Professor Darryl Low Choy (Griffith university), Professor Brendan Mackey (ANu), Professor David Farrier (university of Wollongong), Dr Rosemary Purdie (Threatened Species Scientific Committee), and representatives from the Department of the Environment, Water, Heritage and the Arts and the Department of Climate Change.

Input from Statutory Committees and Government

1.19  The review has obtained input from statutory committees that have an advisory role under the EPBC Act, such as the Threatened Species Scientific Committee, the Indigenous Advisory Committee and the Australian Heritage Council.

1.20  The views of Australian Government agencies have been sourced via the Secretariat supporting the review. Input from particular areas of the Australian Government have been sought directly to help fill out the picture on some issues.

Other reviews on foot

Senate Inquiry into the operation of the EPBC Act

1.21  The Senate Standing Committee on Environment, Communications and the Arts (Senate Committee) held an inquiry into the operation of the EPBC Act and other natural resource protection programs. The committee produced two reports – the first was tabled on 18 March 2009 and the second on 30 April 2009. Both reports included additional comments from Coalition Senators and the Australian Greens.

1.22  The Minister referred the findings and recommendations of the Senate Committee to the review for consideration.

1.23  The findings and recommendations of the Senate Committee are discussed in the relevant chapters of this report.

Quarantine and Biosecurity Review (Beale Review)

1.24  On 19 February 2008, the Minister for Agriculture, Fisheries and Forestry announced an independent review of Australia’s quarantine and biosecurity arrangements. The review was undertaken by an independent panel of experts (independent Quarantine and Biosecurity Review Panel) chaired by Mr Roger Beale AO.

1.25  The Beale Review’s report was released on 18 December 2008. A key recommendation of this review is that the Australian Government develop a single biosecurity system that deals with human health, plant and animal health and environmental issues.

1.26  On 7 April 2009, the Minister requested advice from this review on integrating the current environmental biosecurity regime under the EPBC Act into a proposed new Biosecurity Act. The new Act is proposed to deal with health, primary production and environmental biosecurity issues. Chapter 18 of this report deals with the issues and outlines the review’s view on the issues associated with implementation of the Beale Review as they relate to the EPBC Act.

Productivity Commission review on regulation of the upstream petroleum sector

1.27  In 2008, the Council of Australian Governments (COAG) identified the upstream petroleum sector as a ‘hotspot’ area where overlapping and inconsistent regulation threatened efficient development. COAG agreed that the Productivity Commission should undertake a review of the regulation in this sector. The Productivity Commission’s Research Report was released on 30 April 2009.

1.28  The Report discussed in detail what the Productivity Commission regarded as the over-regulation of the petroleum industry and the duplication of environmental impact processes.

1.29  The Productivity Commission’s report and its recommendations are referred to in Chapter 23 of sthis report.

COAG working groups

1.30  The role of COAG is to initiate, develop and monitor the implementation of policy reforms that are of national significance and which require cooperative action by Australian governments. There are currently at least two COAG processes of relevance to this review.

1.31  At its December 2007 meeting, COAG established seven working groups including the Infrastructure Working Group (IWG) and the Business Regulation and Competition Working Group (BRCWG) to assist in its regulation reform agenda. Both of these working groups are working on issues relevant to the EBPC Act or administration of the Act. The work of these working groups is referenced where relevant in this report.