Environmental governance: The EPBC Act

Independent report to the Australian Government Minister for the Environment and Heritage
Beeton RJS (Bob), Buckley Kristal I, Jones Gary J, Morgan Denise, Reichelt Russell E, Trewin Dennis
(2006 Australian State of the Environment Committee), 2006

11.6 The EPBC Act (more information on this topic)

The EPBC Act has made important contributions to environmental protection and sustainable development in Australia during its first five years of operation. Despite concerns by some community sectors about the inability of the EPBC Act to deal with cumulative environmental impacts, there is evidence that it has achieved its principal objective: the protection of matters of national environmental significance. It appears to be achieving at least some good, though mixed, results in terms of environmental outcomes beyond what would otherwise be achieved under state and territory laws.

The substantial amendments to the EPBC Act in 2003, to incorporate Australia’s new national heritage system, came into effect in 2004 (see ‘Natural and cultural heritage’). Because these changes are new, it is too early to evaluate their outcomes. This will be an important consideration for the Australia State of the Environment Report 2011.

The statistics reveal that the EPBC Act has been well used during its first five years of operation. A total of 1591 referrals were received covering a very broad range of sectors; 1528 controlled action decisions were made; 354 referrals were determined to be controlled actions; and 212 referrals were determined to be not-controlled actions if taken in a particular manner. Determinations under the Act for which the environmental outcome is regarded as ‘good’ (McGrath 2006) have included Iluka Resources Mineral Sands Mine, Western Australia; the Koolyanobbing Iron Ore Expansion Project, Western Australia; and the Coral Sea Pearls Ltd aquaculture development, Queensland. In addition, some non-government organisations have used the expanded standing provisions in the EPBC Act to achieve good environmental outcomes.

An important aspect of the operation of the EPBC Act has been a comprehensive assessment of fishery operations and management, including the effects of fishery operations on non-target species and ecosystems. By the end of 2005, 113 fisheries had been assessed under the Act, and one result has been a move towards ecosystem-based management in Commonwealth-managed fisheries. Also significant is the role of the Act in the process it has established for assessing the conservation status of species and ecological communities. The listing process is scientifically rigorous and, despite concerns in some sectors about delays in listing, several extensive ecological communities have been listed, including some on private land.

In attempting to assess the effectiveness of the EPBC Act there is a danger of oversimplifying both the nature of problems the Act seeks to address and the nature of the solutions it offers. Environmental policy is a truly messy thing (Bartlett 1994), and merely ascribing ‘success’ or ‘failure’ on narrowly defined grounds is rarely useful for improving policy-making in spite of the messiness. The EPBC Act deals with what has been described in other contexts as ‘patently tangled, wicked complex policy problems’ (Bartlett 1994) for which there are no simple solutions.

Public accountability

The EPBC Act has improved public accountability and access to information about proposed developments. Public access to information on the EPBC Act web site contributes to improved scrutiny of major developments that are likely to have impacts on matters of national environmental significance at the environmental impact stage. In addition, the reasons for each listing recommendation are publicly listed on the threatened species web site of the Department of the Environment and Heritage.

It is difficult to quantify what has been achieved ‘on the ground’ by the EPBC Act, but there are indications that it is achieving some positive results. Two important test cases were the Greentree Case and the Flying Fox Case (McGrath 2006). In the latter example, the Australian Government Minister for the Environment and Heritage refused approval of the operation of the electric grid to kill Spectacled Flying Foxes (Pteropus conspicillatus), which stopped a major source of mortality that was severely impacting on the species. Without the EPBC Act, an action to halt the operation of the grids would have faced a great hurdle under Queensland law for lack of standing (although the state laws have since been amended to bring them in line with the widened criteria for standing provided in the EPBC Act). In response to this case, the Queensland Government has announced that it will no longer issue permits for the operation of electric grids, thereby effectively outlawing their operation. This represents a major contribution to protecting a threatened species and the World Heritage values of the Wet Tropics World Heritage Area to which the species contributes.

Despite the positive outcomes demonstrated in these examples, the ‘on the ground’ results of the Act should not be overstated. State and territory laws and local government planning schemes continue to provide the bulk of environmental regulation in the Australian environmental legal system. The Act is only one component, albeit an important one, of an overall system responding to the many strong pressures on the environment. Over the last four years, six of the eight Australian states and territories have collaborated in the listing of threatened species and the alignment of those efforts with ecological communities, but more needs to be done (DEH 2006c).

Flow-on effects

The Act was ground-breaking in imposing a new layer of Commonwealth decision-making and requiring higher levels of integrity and rigour in environmental impact assessment than were required under previous state, territory or Commonwealth laws. These requirements have a great practical significance for development assessment nationally, and they are also directly influencing state and territory assessment processes. In Queensland, for example, the desire to accredit state environmental impact assessment processes in a bilateral agreement under the Act has led directly to major legislative improvements in development assessment laws for the state. Western Australia also amended its laws to achieve accreditation of a bilateral agreement under the Act.