Recommendations arising from the first independent review of the Environmental Protection and Biodiversity Conservation (EPBC) Act, if implemented, would be extensive and focus around the principles of harmonisation, accreditation, standardisation, simplification and oversight. The review states that changes would be so extensive and wide ranging that it has recommended to repeal and replace the existing legislation.

The EPBC Act is Australia’s principle piece of environmental legislation and is responsible for the regulation and protection of Australia’s Matters of National Environmental Significance, including threatened species and ecological communities.

Dr Allan Hawke was commissioned by Federal Minister for Environmental Protection Peter Garrett to conduct the mandatory review of the Act over a 12 month period, and presented his final report to Parliament in October 2009. The report was released to the public on the 21 December 2009.

The independent review analysed the effectiveness of the Act’s operation and implementation since its enactment in 1999, relying on a number of sources that included extensive public workshops and a separately convened Senate report on the operation of the Act that was tabled in April 2009. There was also a large public response to the interim report’s exhibition with 220 written submissions and 119 comments being received that voiced both criticism and commendation for what the Act has achieved since its commencement.

Comments received from the infrastructure sector suggested that there should be further investment in improving the availability of basic environmental information and skills to aid future developments. The Australian Petroleum Production & Exploration Association specifically calculated that the opportunity cost that would be lost due to the required undertaking of extensive environmental assessment under the Act’s current method of appraisal equated to $300 million per annum for an average LNG project. There was also wide scale concern amongst respondents surrounding the ability of the Federal Department of the Environment, Water, Heritage and the Arts, the Act’s administrators, to provide sufficient capacity and resourcing levels to efficiently regulate the Act’s implementation to a satisfactory standard.

Dr Hawke’s report produced 71 recommendations in relation to the operation of the Act and the way in which it is administered. The first and perhaps the most insightful recommendation is that the EPBC Act should be repealed and replaced with a new Act called the Australian Environment Act. This new piece of legislation would clarify, simplify, streamline and modernise environmental process and outline a more strategic approach to environmental management in Australia. There are few reviews that suggest a complete restructure of the legislation that they have been instructed to analyse. This is a drastic and far reaching proposal that would not have been recommended by the review panel had there not been a requirement for significant change to the current mode of operation and implementation of the Act.

The underriding theme to the report is that the Act has served a purpose in becoming the first piece of legislation to define the Commonwealth’s role in environmental regulation, but it is now time to redefine Australia’s environmental legislation to remove frustrations with the current system and to reflect the changing attitude of public opinion toward the respect and protection of the environment.

This theme is supported throughout the report’s recommendations, which point towards a focus of the re-packaged legislation to provide further reliance on transparency and public involvement in the decision making process and to encourage a more holistic approach to the way in which proposed actions are assessed and monitored.

Of particular interest to project managers should be the report’s two new proposed Matters of National Environmental Significance that would trigger referral under the Act; greenhouse gas emissions and ecosystems of national importance.

A greenhouse gas trigger signifies a move toward gaining a more holistic assessment of proposed actions and their overall impacts. Currently, there is no provision within the Act that allows direct assessment of a proposed action against the volume of emissions it proposes to produce. It is likely that the greenhouse gas trigger, if implemented, would apply to construction as well as operation of the proposed action. Should this trigger be included into the new legislation, it would lead to a higher number of referrals from the energy sector and would require the proponent to actively consider cost-effective climate change mitigation opportunities as part of the assessment. This would mean that controlled actions would be subject to additional provisions that would enforce the quantification, management and reporting of greenhouse gas emissions. Implementation of this trigger would be an interim measure that would complement current National Greenhouse and Energy Reporting System legislation and ‘sunset’ upon the commencement of the Carbon Pollution Reduction Scheme, should it come to pass.

Assessment of ecosystems of national importance, if incorporated into the Act, would constitute a strong move to better manage the ‘death by a thousand cuts’ analogy that describes the way in which threatened species and their habitats are being slowly eroded by projects – predominantly linear infrastructure projects – that individually have a negligible effect on individual threatened species or communities but collectively contribute to their overall decline. This trigger would potentially lead to future proposed actions being subjected to increased scrutiny and controls over the impacts through these areas.

The report also suggests that the monitoring and auditing of actions should be improved and strengthened. Recommendations include the Minister being given the discretion to undertake compliance and performance audits, and having the ability to retrospectively alter conditions to an already approved action should the circumstances demand it. It is also proposed that the full suite of administrative, civil and criminal remedies be applied to contravention or suspected contravention of the Act (as stated under Recommendation 55 of the review, ‘Chapter 16: Compliance and enforcement, monitoring and audit’).

On a more positive note, recommendations that propose to streamline and improve the assessment process include a move toward having one national list of threatened species and ecological communities rather than having to deal with separate federal and state lists. There is also a call to produce a code of conduct for consultants supplying information for the purposes of environmental impact assessments (EIAs) in relation to the Act. This would also include introduction of auditing protocols to confirm that predictions made during the EIA prove correct upon implementation. This would be a positive step in terms of clarity for both consultants and project managers alike when preparing EIAs under the federal legislation, and would reduce elements of unnecessary assessment and reporting.

Dr Hawke and his team have produced a report on the EPBC Act that commends the Act for what it has achieved but concentrates on setting a new path for federal environmental regulation that outlines a more strategic, streamlined and holistic approach to the way in which proposed actions are assessed, administered and monitored. It is up to the Government now to determine the level of change that will be implemented over the coming months following presentation of the report.