The ‘Independent Review of the EPBC Act: Interim Report,’ authored by Professor Graeme Samuel, was released at the end of June 2020. The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) must be reviewed every ten years.
The report was disappointing in some areas but included keynote recommendations that, if implemented as recommended, would provide major improvements in protecting Matters of National Environmental Significance (MNES).
Professor Samuels cleverly juggled competing interests to recommend the establishment of legally enforceable National Environmental Standards (NES) which would set outcomes for protection of MNES. Critically, the NES when finalised are intended to provide a pathway to devolution of assessment and approval powers to the states and territories. Until powers are devolved and unless states request it, the Australian government will continue to undertake assessments and make approvals. Recommendations are made to streamline these processes to make them quicker and less expensive. Critically, the NES would be developed in consultation with the states and not through negotiation, where the end product would be the lowest common denominator.
Professor Samuels also recommends an independent compliance and enforcement regulator (free from political influence). States and territories would need to demonstrate that their processes comply with the NES and the compliance and enforcement regulator would monitor and audit them to check that this is occurring. The Commonwealth would retain the power to intervene where devolved regulators failed to meet the required standards.
In addition to these new regulatory measures Professor Samuels recommended a greater focus on restoration, expanding the area of habitat, better use of indigenous knowledge in management and decisions and a greater focus on national and regional plans to focus investment in areas of highest priority.
Almost immediately following the release of Professor Samuels’ report, the Australian Government announced that it would progress legislative amendments and bilateral agreements with state governments; the aim being to progress the recommendations to devolve powers to the states and streamline approval processes while progressing National Environmental Standards. There has been no commitment to the detailed process that Professor Samuels stated was required to develop the NES. The government also ruled out an independent compliance and enforcement regulator: thus leaving the Australian Government minister overseeing the states in implementing the NES. The Australian Government could also be expected to allow states to negotiate the standards down to what they would accept, rather than what is required.
It is important to emphasise that the report that was released was an interim report. Its author, Professor Graeme Samuel, undertook consultation until the end of September and aims to have a final report to the government at the end of October 2020. It seems strange that the government has announced its plans to implement selective interim recommendations before the statutory review is completed. This confuses the process of completing the consultation and finalising the report to government. One of the first points the TCT will be making is we need to know what exactly the government has taken off the table and has it proposed legislation to this effect.
The TCT made a submission on the ten-year review of the EPBC Act. We recommended several amendments to the Act and provided a number of Tasmanian-specific examples of how the legislation had failed the Tasmanian environment, including:
• Failed EPBC Act regulation of rock lobster fishery
• Salmon farming expansion in Macquarie Harbour
• Cumulative impacts – Arthur-Pieman Conservation Area.
However, we gave most of the space in our submission to ways of progressing biodiversity conservation through the non-regulatory functions of the Act, which have historically been under-used. The two general areas covered were:
• Proactive programs to conserve biodiversity
• Support for farmers to better understand and implement their obligations under the EPBC Act.
We also outlined factors that would limit the potential for effective roll-out of these programs: critically the state government’s lack of commitment to biodiversity conservation and the Tasmanian Farmers and Graziers Association non-commitment to EPBC Act listings.
These approaches provide for a more proactive approach to biodiversity conservation, which would be more effective in the long run. They have the potential to avoid many impacts and provide for active management to improve the condition of MNES. Having strategic approaches in place would be beneficial when individual developments are referred and assessed as controlled actions under the Act.
In large part, the TCT rests its arguments on the report prepared by consultants AITHER for the Department of the Environment and Energy, ‘Review of the interactions between the EPBC Act and the agricultural sector, Final Report’, September 2018. Unlike many other reviews, this one was recently completed and the problems it identifies are very current.
Our priorities regarding proactive biodiversity programs correspond closely with Professor Samuels’ recommendations for national and regional plans. Regional plans would address biodiversity management in hotspot bioregions, while national plans would coordinate and implement plans for reducing threats from weeds and feral animals.