EPBC Act Review

KEN NORRIS Partner for Norris & Schoeffel reports on the statutory review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) which commenced on 29 October 2019.

Over the next 12 months, the review will look at how the EPBC Act has been operating, and any changes needed for Australia to support ecologically sustainable development into the future.

“The EPBC Act plays a significant role in the protection and management of Australian environment and heritage.

The EPBC Act is more than 1000 pages of complex legislation, to which has been added over 400 pages of regulations.

This review is a once in a decade opportunity to look closely at the Act, how it operates, and what it is achieving.

While it is not a review of environment policy – which is the job of government – this review is seen as a crucial opportunity to make recommendations to ensure that the Act is fit for the future.”

The following is CMPA’s response in part to the discussion paper questions (released in November 2019 for comment) and can be found at https://epbcactreview.environment.gov.au/resources/discussion-paper

Question 1

Some have argued that past changes to the EPBC Act to add new matters of national environmental significance did not go far enough. Others have argued it has extended the regulatory reach of the Commonwealth too far. What do you think?

Central to this question is whether the matters added are of “national environmental significance”. So, the question turns on the extent to which the matters are assessed properly and not simply added because the catch all “precautionary principle” determines that it/they must.

There are examples (e.g. Golden Sun Moth) where the local advice of an expert or experts in the field was not to include as a matter of national environmental significance and yet it went ahead anyway. The ongoing cost of that decision is significant. And for what return?

Question 2

How could the principle of ecologically sustainable development (ESD) be better reflected in the EPBC Act?

For example, could the consideration of environmental, social and economic factors, which are core components of ESD, be achieved through greater inclusion of cost benefit analysis in decision making?

Are “environmental, social and economic factors” core components of ESD? In practical reality, the environmental component, through the “precautionary principle”, has suzerainty over the other two, unless the social and economic components reach a size that governments are forced to react.

Writing the (supposed) ESD principles into the EPBC Act would necessitate the empowerment of a tribunal before which the arguments would be adjudicated; it is unreasonable to expect a public servant to rule on Matters alone.

Question 3

Should the objects of the EPBC Act be more specific?

Yes and no.

Much of Box 3: The objects of the EPBC Act is vague and fanciful. So, to that extent, the objects could be more specific. But more important is the underlying effect of the EPBC Act as it is currently constituted.

Comments on each of the “objects”:

(a) As an overarching principle, this is okay, but the devil is in delivery.

(b) This object is arguable from the perspective of many industries. How can you conserve and ecologically sustain the natural resources from a quarry?

(c) The Act, through its punitive and restrictive measures, creates an implied liability on any private landholder’s balance sheet. Rather than “promote the conservation of biodiversity”, it does the exact opposite: any landholder with an eye to opportunity and their balance sheet and the knowledge and wherewithal to act, will do so.

(d) Heritage means what exactly?

(e) A cooperative approach to the management of the environment is a worthy aim but through highlighting its punitive provisions (see c above), the Act, in the main, achieves an adversarial rather than a cooperative outcome with the majority of non-public land managers.

(f) “to assist in the cooperative…” means little.

(g) Tokenistic and of dubious value.

(h) Tokenistic and of dubious value.

Question 4

Should the matters of national environmental significance within the EPBC Act be changed? How?

In general, what makes up the list does not matter but the regulatory constraints that attend listing does.

If the regulatory system of application, assessment, adjudication and penalty is to continue then the matters list should only include items that are/were subject to a transparent and rigorous selection process and are well defined biologically (in most cases) and spatially.

world heritage Taking note of World Heritage listing is fair enough but including items automatically within the EPBC Matters list is not.

All EPBC listing should be part of a rigorous Australian assessment in which world heritage listing can play a part.

national heritage This seems rather to be out of place in the EPBC Act. Is it not subject to its own statutes?

wetlands of international importance (listed under the Ramsar Convention) Taking note of Ramsar listing is fair enough but including items automatically within the EPBC Matters list is not.

All EPBC listing should be part of a rigorous Australian assessment in which Ramsar listing can play a part.

The genesis of Ramsar listing was rather generic and of self-interest: countries nominated their own wetlands to be included in the Ramsar list.

listed threatened species and communities This really should be a centrepiece of EPBC deliberation. But the definition of “species and communities” needs attention.

A “species” has some probity as a definition in biology – an exclusive gene pool—but increasingly, what seems to be the influence of political or ideological taxonomy loosens that definition to include what used reasonably to be counted as “subspecies” as full species, simply to be included within the ambit of legislative recognition.

A “community” is more problematic because there are effectively no boundaries to the occurrence of a “community” of any biological assemblage, named or not.

Any group of biological entities comprises a community. Defining a biological community as threatened or in need of legislative protection raises real questions in the field about what it is and where it is.

The protection of law should apply to areas that are defined spatially, not through the discovery or dis-allowance of named communities in the field.

listed migratory species This list adds another layer of complexity and cost to the assessment process for little apparent tangible gain.

If species (taxa) must be included in a Rare and Threatened “List” for protection, much better to do the job taxon by taxon i.e. by rigorous analysis of data, taking into account the fact that a taxon is or might be migratory.

protection of the environment from nuclear actions (such as uranium mines, although nuclear power plants are prohibited), An example of a broad-brush matter that damages any credibility the EPBC Act might have.

marine environment Too vague. Why not terrestrial environment as well?

the Great Barrier Reef Marine Park Doesn’t the National Parks designation confer enough protection?

protection of water resources from coal seam gas development and large coal mining development Anti-development. Should not pick out a particular industry as an EPBC Matter. Protection of water quality etc. should be generic within Planning Frameworks.

The full CMPA submission may be found at www.cmpavic.asn.au

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