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COMMONWEALTH ROLE AND EPBC ACT OBJECTIvES

Chapter Two

Independent Review of the ENvIRONMENT PROTECTION AND BIODIvERSITy CONSERvATION ACT 1999 8

Chapter 2: Commonwealth Role and EPBC Act objectives


Key points ■ The Commonwealth’s jurisdiction over environmental matters comes from the Australian Constitution.

■ The EPBC Act specifies the matters for which the Commonwealth has regulatory responsibility, and is derived from the 1992 Intergovernmental Agreement on the Environment and the 1997 COAG Heads of Agreement.

■ The objects of the EPBC Act are set out in section 3 of the Act.

■ At its foundation is the principle of ecologically sustainable development (ESD), which encapsulates the precautionary principle and the principle of intergenerational equity.

■ The EPBC Act is not the sole means of providing biodiversity and heritage protection – it operates in the context of other regimes and Australian Government policies, including the Native vegetation Framework, Australia’s Oceans Policy and Caring for our Country.

■ The Act interacts with State and Territory legislative and administrative regimes dealing with environmental management and protection.

■ Maintaining an appropriate role for the Commonwealth with respect to the environment and heritage is important in the context of maintaining an appropriate division of responsibilities between the Commonwealth and the States and Territories.

Sources of power for Commonwealth involvement in environmental matters

Background to the Act and sources of Commonwealth power in environmental matters2.1 The Australian Constitution does not explicitly give the Commonwealth Parliament the power to make laws

with respect to the environment. As noted in legal commentary, there was little interest in environmental matters at the time of the Constitution’s drafting, with public policy driven by the desire to promote social and economic development.1 However, some colonists were already calling for the federal government to protect endangered species in the 1880s and the new Commonwealth was quick to exercise its powers in the environmental arena as part of the international movement to stop the slaughter of birds for the millinery trade. The Commonwealth’s initial vehicle was the Customs Act 1901. Provision was made in 1908 to prohibit the importation of specified birds and in 1909 it did so, prohibiting the importation of birds of paradise, goura pigeons and osprey from Papua.2

2.2 until the 1970s, the Commonwealth had no ‘comprehensive regime for the protection of the environment’,3 and regulation of most environmental matters was left to the States and Territories. The Environment Protection (Impact of Proposals) Act 1974 (Cth), which applied to decisions and works involving the Commonwealth or a Commonwealth authority, led to a marked increase in Commonwealth involvement.4 Other pieces of Commonwealth legislation dealing with environmental matters included the Great Barrier Reef Marine Park Act 1975 (Cth) and the Australian Heritage Commission Act 1975 (Cth), but there was no overarching legislation that governed the Commonwealth’s involvement in environmental matters.5

2.3 In the 1980s, several key High Court judgments laid the foundation for the Commonwealth to expand its role into environmental matters– these cases clarified the scope of the external affairs power in s.51(xxix) of the Constitution by confirming that under this provision the Commonwealth has jurisdiction to make laws for the purposes of implementing Australia’s international obligations.6

1 Douglas Fisher, Australian Environmental Law (2003), p.88.2 Commonwealth of Australia Gazette, 1908, p.1571; 1909, p. 1175.3 DE Fisher, Australian Environmental Law (2003), p.289.4 Environment Protection (Impact of Proposals) Act 1974 (Cth) s.5.5 See e.g. the discussion in Douglas Fisher, Australian Environmental Law (2003), p.98.6 See e.g. Koowarta v Bjelke-Petersen (1982) 153 CLR 168.

9 Chapter Two COMMONWEALTH ROLE AND EPBC ACT OBJECTIvES


2.4 This position was also confirmed in the Tasmanian Dam case.7

2.5 In addition to the enactment of the EPBC Act, the external affairs power has also enabled the Commonwealth to enact legislation dealing with other environmental matters, including ozone protection8 and the management of hazardous wastes.9

2.6 In addition to the external affairs power, the Commonwealth has significant powers to protect the environment using its powers to make laws with respect to:

■ international and interstate trade and commerce;10

■ fisheries in Australian waters beyond territorial limits;11 and

■ foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.12

2.7 The Constitution also grants the Commonwealth several financial powers that can be used to promote the protection of the environment.13 Within this context, the key issue is not so much whether the Commonwealth has the power to make environmental laws but when and how it should do so.14

The coag heads of agreement

2.8 The Australian system is not hierarchical. The Council of Australian Governments (COAG) in 1992 set out the agreement on the roles and responsibilities of each level of government in Australia (the Inter-Governmental Agreement on the Environment). Section 2–provided that:

responsibilities and interests of the Commonwealth in safeguarding and accommodating national environmental matters include:

(i) matters of foreign policy relating to the environment and, in particular, negotiating and entering into international agreements relating to the environment and ensuring that international obligations relating to the environment are met by Australia

(ii) ensuring that the policies or practices of a State do not result in significant adverse external effects in relation to the environment of another State or the lands or territories of the Commonwealth or maritime areas within Australia’s jurisdiction …

(iii) facilitating the co-operative development of national environmental standards and guidelines.15

2.9 The Commonwealth also ‘has responsibility for the management (including operational policy) of living and non-living resources on land which the Commonwealth owns or which it occupies for its own use.’

2.10 The IGAE provides that States have responsibility for:

■ developing and implementing policy in relation to environmental matters which have no significant effects on matters which are the responsibility of the Commonwealth or any other State;

■ the policy, legislative and administrative framework within which living and non living resources are managed within the State;

7 See e.g. Koowarta v Bjelke-Petersen (1982) 153 CLR 168 and Commonwealth v Tasmania (1983) 158 CLR 1, [231] (per Mason J).8 Ozone Protection Act 1989 (Cth), implementing obligations under the Vienna Convention for the Protection of the Ozone Layer, done at vienna, 22

March 1985.9 Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth), ...implementing obligations under the Basel Convention on the Control of

Hazardous Wastes and their Disposal, done at Basel, 22 September 1985.10 Australian Constitution s.51(i).11 Australian Constitution s.51(x).12 Australian Constitution s.51(xx).13 Australian Constitution ss.51(ii), 81-83 and 96.14 For a more detailed discussion of Australia’s constitutional powers that relate to environmental regulation, see Gerry Bates, Environmental Law in

Australia (6th ed, 2006), pp.57-75.15 Intergovernmental Agreement on the Environment (1992) [2.2.1].



■ developing Australia’s position in relation to any proposed international agreements of environmental significance which may impact on the discharge of the State’s responsibilities; and

■ participating in the development of national environmental policies and standards.16

2.11 The IGAE also provides that Local Government has a responsibility for ‘the development and implementation of locally relevant and applicable environmental policies within its jurisdiction in co-operation with other levels of Government and the local community’17, and an interest in:

(i) the environment of their localities and in the environments to which they are linked; and

(ii) the development and implementation of regional, Statewide and national policies, programs and mechanisms which affect more than one Local Government unit. 18

2.12 The concepts in the IGAE, were developed further when COAG and representatives of local governments signed a Heads of agreement on Commonwealth and State roles and responsibilities for the Environment19 (Heads of Agreement) in 1997. The Heads of Agreement provided that the Commonwealth would apply its assessment and approval processes to meet its obligations on the following matters of national environmental significance (NES):

■ World Heritage properties;

■ Ramsar listed wetlands;

■ places of national significance;

■ nationally endangered or vulnerable species and communities;

■ migratory species and cetaceans;

■ nuclear activities; and

■ management and protection of the marine and coastal environment. 20

2.13 The Commonwealth also has a responsibility and an interest in relation to proposals on Commonwealth lands and waters and proposals which are beyond the jurisdiction of States and Territories (for example, foreign aid proposals).21

16 Intergovernmental Agreement on the Environment (1992) [2.3].17 Intergovernmental Agreement on the Environment (1992) [2.4.1].18 Intergovernmental Agreement on the Environment (1992) [2.4.1].19 Heads of agreement on Commonwealth and State roles and responsibilities for the Environment (1997) http://www.environment.gov.au/epbc/publications/

coag-agreement/preamble.html at 18 May 2009.20 Heads of agreement on Commonwealth and State roles and responsibilities for the Environment (1997) http://www.environment.gov.au/epbc/publications/

coag-agreement/attachment-1.html at 27 May 2009, Part 1.21 Heads of agreement on Commonwealth and State roles and responsibilities for the Environment (1997) Part II,

http://www.environment.gov.au/epbc/publications/coag-agreement/attachment-1.html at 27 May 2009.



2.14 The Heads of Agreement also provided that the following matters were matters of NES in which the Commonwealth has interests and obligations, but that they would not immediately be triggers for the environmental assessment and approval process under what became the EPBC Act:

■ reducing emissions of greenhouse gases and protecting and enhancing greenhouse sinks;

■ regulation of ozone depleting substances;

■ conservation of biological diversity (excluding nationally endangered or vulnerable species and communities);

■ protection and management of forests;

■ genetically modified organisms which may have an adverse impact on the environment;

■ agricultural, veterinary and industrial chemicals;

■ matters requiring national environment protection measures;

■ management of hazardous wastes relating to Commonwealth obligations arising from the Basel Convention;22

■ access to biological resources;

■ international trade in wildlife arising from obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)23;

■ development and maintenance of national environmental and heritage data sets arising from intergovernmental arrangements and international obligations;

■ applying uniform national emissions standards to motor vehicles;

■ policies and practices of a State resulting in potentially significant adverse external effects in relation to the environment of another State, where the States involved cannot resolve the problem;

■ ‘National interest ‘ environmental matters as covered by the Telecommunications Act 1997 (Cth);

■ quarantine matters;

■ aviation airspace management including assessment of aircraft noise and emissions;

■ Natural Heritage Trust Programs;

■ implementation of the National Strategy for Ecologically Sustainable Development;

■ nationally significant feral animals and weeds;

■ conservation of native vegetation and fauna;

■ prevention of land and water degradation; and

■ matters that are from time to time agreed by the Commonwealth and the States as being matters of NES.24

2.15 At the time, 23 matters of NES were excluded as protected matters that would trigger the assessment and approval processes of the EPBC Act for a number of reasons. For example, some were believed to be better addressed through cooperation with the States and Territories and through program funding (such as the prevention of land and water degradation), while others were already regulated in other national legislation (such as the management of hazardous wastes). Some of these matters have subsequently been incorporated into the EPBC Act, including access to biological resources and international trade in wildlife.

22 Basel Convention on the Control of Transboundary Movement of Hazardous Waters and Their Disposal done at Basel on 22 March 1989.23 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), done at Washington, 3 March 1973.24 Heads of agreement on Commonwealth and State roles and responsibilities for the Environment (1997) http://www.environment.gov.au/epbc/publications/

coag-agreement/attachment-1.html at 27 May 2009, Part II.



key international conventions with respect to the environment

2.16 The framework of the EPBC Act is significantly guided by Australia’s international environmental obligations. A more complete list of international conventions relevant to the protection of the environment is at Appendix 2. However, the key conventions of relevance to the EPBC Act are the:

■ The Antarctic Treaty;25

■ Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention);26

■ CITES;

■ Convention on Biological Diversity (CBD);27

■ Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention);28

■ International Convention for the Regulation of Whaling (International Whaling Convention);29

■ Migratory Bird Agreements – Japan-Australia Migratory Bird Agreement (JAMBA),30 China-Australia Migratory Bird Agreement (CAMBA)31 and Republic of Korea-Australia Migratory Bird Agreement (ROKAMBA);32

■ Rio Declaration on Environment and Development;33 and

■ Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention).34

2.17 All of these international conventions create obligations for Australia to act in some manner to prevent or minimise harm to the environment or to act to restore degraded landscapes. However, very few of these agreements require Australia to implement these obligations in a particular manner and Australia’s implementation of these obligations can be through non-legislative mechanisms, such as Caring for our Country.

Key points raised in public submissions

constitutional issues

2.18 Some submissions noted that there were constitutional issues that could limit the Commonwealth’s ability to play a greater role in environmental matters. For example, the Greater Blue Mountains World Heritage Area Advisory Committee noted that:

A basic premise behind the origin of the EPBC Act was to restrict the Commonwealth’s involvement in environmental regulation matters for which it had a specific responsibility under the Constitution, leaving the rest up to State, Territory and Local governments. Realistically it is simply not possible for the Commonwealth to regulate all environmental matters for the whole country. … Hence the Act limits involvement to matters of National Environmental Significance, that can be directly based on heads of power in the Constitution.

However, the Act does not currently cover all relevant matters. For example, since signing the Kyoto Protocol, it is argued that the Government could and should include climate change in the Act as a matter of NES. Similarly, wilderness could be included as a matter of NES as it is specifically mentioned in the Convention on Biological Diversity. 35

25 The Antarctic Treaty, done at Washington, 1 December 1959.26 Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention), done at Bonn, 23 June 1979.27 Convention on Biological Diversity (CBD), done at Rio de Janeiro, 5 June 1992.28 Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention), done at Ramsar, 2 February 1971.29 International Convention for the Regulation of Whaling (International Whaling Convention), done at Washington, 2 December 1946.30 Migratory Bird Agreements – Japan-Australia Migratory Bird Agreement (JAMBA), done at Tokyo, 6 February 1974.31 China-Australia Migratory Bird Agreement (CAMBA), done at Canberra, 20 October 1986.32 Republic of Korea-Australia Migratory Bird Agreement (ROKAMBA), done at Canberra, 6 December 2006.33 Rio Declaration on Environment and Development, done at Rio de Janerio, 14 June 1992.34 Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention), done at Paris, 23 November 1972.35 Submission 069: Greater Blue Mountains World Heritage Area Advisory Committee, p.2.



2.19 Other submissions referred to the increasingly broad interpretation of the Commonwealth’s constitutional powers and that there is ‘a strong case for significantly increased Commonwealth involvement in environmental matters under broadly interpreted constitutional powers’.36

international obligations

General comments

2.20 Several submissions raised concerns that Australia is not currently meeting its obligations under international environmental agreements (for example, the Apia Convention37 and the CBD).38 Mr Jamie Pittock, Dr Debra Saunders and Ms Karen Stagoll argued that ‘while the EPBC Act purports to implement Australia’s obligations under multilateral environment agreements, a number of key, proactive measures under these treaties are not facilitated in legislation and have not been implemented or are out of date’.39 These submissions argued that, while the Act goes some way to implementing Australia’s international obligations, it should be amended to better implement those obligations.40

2.21 The National Parks Australia Council noted that ‘[t]here has been very little attempt to properly resource the monitoring or reporting on our international obligations in recent years’41 and suggested that deadlines be inserted into the Act for reporting on progress in meeting those obligations, with a requirement to table in Parliament a report setting out any unmet obligations.42

Migratory Bird Agreements

2.22 Some submissions dealt specifically with Australia’s obligations under JAMBA, CAMBA and ROKAMBA. Birds Australia noted that:

The [A]ct and other government actions have strengthened the protections for migratory birds outlined in the bilateral agreements like JAMBA, CAMBA, and ROKAMBA, both nationally and internationally. Given the increasing threats to these species and the evidence of their declining populations, these efforts need to continue to be built upon. 43

2.23 Birds Australia further noted that Australia is a signatory of the many international migratory bird agreements noted in the EPBC Act and that ‘it needs to show leadership by clearly and transparently adhering to these agreements’.44

Convention on Biological Diversity (CBD)

2.24 Several submissions argued that Australia is not meeting its obligations under the CBD. The WWF submission specifically argued that:

any natural ecosystem, habitat and ecological process essential for viable native species is a matter of national environmental significance and should be treated as such. CBD seeks to protect biodiversity, not just biodiversity formally listed as threatened. The Act as it is takes a much more fragmented approach to the protection of our environment and conservation of biodiversity, and WWF believes such an approach can be considerably improved. 45

2.25 The Environment Institute of Australia and New Zealand (EIANZ) argued similarly that ‘[t]he scope of Australia’s commitments to the Convention on Biological Diversity (CBD) could be realised through more over-arching biodiversity controls. ... In order to protect threatened species, the EPBC Act cannot only apply to them alone’.46

36 Submission 173: Conservation Council of Western Australia, p.4.37 Convention on Conservation of Nature in the South Pacific done at Apia on 12 June 1976. 38 See e.g. Submission 055: Conservation Council (ACT Region), p.9.39 Submission 101: Mr Jamie Pittock, Dr Debra Saunders and Ms Karen Stagoll, p.4.40 Submission 101: Mr Jamie Pittock, Dr Debra Saunders and Ms Karen Stagoll, p.1.41 Submission 161: National Parks Australia Council, p.15.42 Submission 161: National Parks Australia Council, p.15.43 Submission 066: Birds Australia, p.5.44 Submission 066: Birds Australia, p.7.45 Submission 181: WWF, p.8.46 Submission 087: Environment Institute of Australia and New Zealand, p.3.



International Climate Change Agreements

2.26 Several submissions suggested that Australia’s signature to the Kyoto Protocol, along with Australia’s other international climate change obligations under the United Nations Framework Convention on Climate Change 1992 (uNFCCC)47 and the Asia-Pacific Partnership on Clean Development and Climate 2005,48 justifies the inclusion of ‘climate change’ or ‘greenhouse gas emissions’ as a matter of NES under the Act.49

2.27 Dr Chris McGrath suggested that any climate change trigger should be linked to Australia’s obligations under the uNFCCC and the Kyoto Protocol, and possibly adopt ‘flexible’ criteria such as ‘best practice environmental management’ and ‘low emissions technology’.50 This would also be consistent with the Asia-Pacific Partnership on Clean Development and Climate 2005.51

World Heritage Convention

2.28 Some submissions discussed Australia’s obligations under the World Heritage Convention, and how the Act could be amended to better comply with these obligations.52 For example, Mr Tom Baxter cited Article 4 of the World Heritage Convention as an example of one of ‘Australia’s obligations [providing] minimum baseline content which ought be adequately incorporated in relevant objects of the Act’.53

Discussion of key points

constitutional powers of the commonwealth and the balance of powers between states, territories and the commonwealth

2.29 As noted above, the Commonwealth has broad powers to deal with environmental matters. At the same time, States and Territories have the power to make laws for the ‘peace, order and good governance’ of the State or Territory, which grants them extensive powers to make legislation related to environmental matters in their own jurisdiction. This situation has the potential to lead to significant political and legal conflicts between the Commonwealth and States and Territories. However, the existence of intergovernmental agreements on environmental issues (such as the Heads of Agreement and the National Water Initiative) highlights the fact that the protection of the Australian environment operates within the federal structure of Australian Government. The goal of the Heads of Agreement was to see protection of the environment secured through a ‘co-operative national approach’ in a spirit of ‘co-operative federalism’.54

2.30 An extension of the Commonwealth’s role in environmental matters may suggest a renegotiation of the Heads of Agreement. While not required as matter of law in order for the Commonwealth to gain jurisdiction to expand its role with respect to the environment – because the Heads of Agreement is a political compact which does not constrain the Commonwealth’s legal powers under the Constitution – such a renegotiation may be appropriate given the increasing prominence of environmental issues (particularly climate change) and an increased acknowledgement over the last 17 years that many environmental issues require a nationally coordinated response.

47 United Nations Framework Convention on Climate Change 1992 (UNFCCC), done at New york, 9 May 1992. 48 Asia-Pacific Partnership on Clean Development and Climate 2005, done at Sydney, 13 January 200649 See e.g. Submission 134: Wet Tropics Management Authority, p.1.50 Submission 017: Dr Chris McGrath, 51 Submission 017: Dr Chris McGrath, pp.6-7.52 See e.g. Submission 192: Mr Tom Baxter, pp.5-6.53 Submission 192: Mr Tom Baxter, pp.5-6.54 For a discussion of ‘co-operative federalism’, see e.g. Pamela Tate, ‘New Directions in Co-operative Federalism: Referrals of Legislative Power and

Their Consequences’ (paper presented at the 2005 Constitutional Law Conference, Sydney, 18 February 2005) and Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 566 (per McHugh J)



implementation of international obligations

2.31 It is the Commonwealth’s role to ensure that Australia’s international environmental obligations are met.55 As noted above, parties to international agreements have a mandate to implement their obligations under those agreements. These obligations are for the most part worded in broad terms.

2.32 The WWF submission noted particularly that it believes that Australia had failed to comply with Article 8 of the CBD. Article 8 of the CBD sets out the obligations of Contracting Parties relating to the establishment and management of protected areas and management of biological resources, protection of species, ecosystems and natural habitats, the use of genetically modified organisms and the involvement of Indigenous and local communities in environmental matters.56 Questions about breaches of international conventions such as the CBD are often vexed and difficult to answer. However these are central to this review which has been tasked to consider whether the objects of the Act are being achieved and one of these objects (s3(e)) is ‘to assist in the co-operative implementation of Australia’s international environmental responsibilities’.

heritage

2.33 The Commonwealth has had a role in the management and protection of World Heritage properties since the Great Barrier Reef, Willandra Lakes Region and Kakadu National Park were all inscribed on the World Heritage List in 1981. Prior to the introduction of the EPBC Act, World Heritage areas were protected under the World Heritage (Properties Conservation) Act 1983 (Cth).

2.34 As noted by the Australian Government;

Historically, the protection and management of many of Australia’s World Heritage properties has involved a cooperative approach between the Australian Government and State Governments, with relevant State agencies taking responsibility for on-ground management.57

2.35 The Act, through its system of Commonwealth listing and environmental impact assessment with State and Territory Governments generally handling the day-to-day management, formalises this process.

2.36 The provisions of the Act relating to Commonwealth and National Heritage places were inserted in 2003. The Explanatory Memorandum to the amending legislation explained that:

The Commonwealth’s existing heritage conservation regime is now seriously outdated and subject to significant limitations. under the [AHC Act], over 13 000 places are listed on the Register of the National Estate. Some of these places are of national significance but many would properly be regarded as places of State or local significance. Therefore, the Commonwealth is often involved in matters that are not appropriately the responsibility of a national government. As a result, the current regime is characterised by unnecessary inter-governmental duplication which causes uncertainty and delay for business and industry.

It is also important to recognise that the AHC Act provides no substantive protection for heritage places of national significance. The limited procedural safeguards included in the AHC Act fall well short of contemporary best practice in heritage conservation. 58

2.37 The National and Commonwealth Heritage Lists were intended to reduce duplications in listing and regulation, while also increasing safeguards to protect nationally significant heritage places and values. Whether or not it is appropriate to regulate heritage matters in the same legislation as biodiversity conservation and environmental assessment regimes is discussed further in Chapter 11 of this report.

55 Heads of agreement on Commonwealth and State roles and responsibilities for the Environment (1997) Part II, http://www.environment.gov.au/epbc/publications/coag-agreement/attachment-1.html at 27 May 2009 s.[2.2.1(i)].

56 Convention on Biological Diversity (CBD), done at Rio de Janeiro, 5 June 1992, Art.8.57 Australian Government, Asia-Pacific Focal Point for World Heritage Managers: Australian World Heritage Legislation (2008)

http://www.environment.gov.au/heritage/apfp/bestpractice/legislation.html at 20 May 2009.58 Explanatory Memorandum, Environment and Heritage Legislation Amendment Bill (No.1) 2002, Sch.1.



Context in which the Act operates

Current policy framework2.38 The EPBC Act operates in the context of other legislative regimes and government policy, such as:

■ National Strategy for Ecologically Sustainable Development (1992);

■ National Strategy for the Conservation of Australia’s Biological Diversity (1996) (currently under review);

■ Nationally Agreed Criteria for the Establishment of a Comprehensive, Adequate and Representative Reserve System for Forests in Australia (JANIS criteria) (1997);

■ Australia’s Oceans Policy (1998);

■ Guidelines for Establishing the National Representative System of Marine Protected Areas (1998);

■ National Framework for the Management and Monitoring of Australia’s Native vegetation (2001) (Native vegetation Framework);

■ National Water Initiative (2004);

■ Australian Weeds Strategy (2007);

■ Australian Pest Animal Strategy (2007);

■ Directions for the National Reserve System-a Partnership Approach (2005);

■ Caring for our Country (2008); and

■ the proposed Carbon Pollution Reduction Scheme (2008–09).

2.39 These documents and others set out national frameworks and policies for dealing with a range of particular environmental matters, and outline the roles and responsibilities of the different levels of government. Some of these documents are discussed furthe r below and in other chapters of this report.


natural resource management (nrm) programs

2.40 The South Australian Chamber of Mines and Energy submission argued that:

[a]lignment with state and regional Natural Resource Management (NRM) plans and objectives under state legislation (Natural Resource Management Act 2004 [South Australia]) is essential for certainty. It would be counter productive if state, regional and federal strategic plans for an area were designed to achieve different environmental outcomes. 59

indigenous issues

2.41 The Australian Human Rights Commission submission was concerned about the interaction between the EPBC Act and the protection and ongoing maintenance of Indigenous people’s rights and interests. This submission noted that there is currently no clear guide to the relationship between the EPBC Act and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).60

2.42 The National Generators Forum was one of several groups concerned at how legislation dealing with Indigenous heritage protection has been introduced by different levels of Government, noting that it supports ‘the greater harmonisation of legislation for the protection of Indigenous heritage value and a more transparent and consistent approach to the identification and assessment of Indigenous heritage.’61

59 Submission 111: South Australian Chamber of Mines and Energy, p.4.60 Submission 193: Australian Human Rights Commission, p.7.61 Submission 122: National Generators Forum, p.3.



senate inquiry into the operation of the ePBc act

2.43 When addressing the appropriateness of introducing climate change and land clearance as matters of NES, the Senate Committee referred to both the CPRS and the review of the Native vegetation Framework and noted that the introduction of either a climate change or land clearance matter of NES would require a consideration of both policies.62


national environmental policies

2.44 As can be seen from the list of national policies relevant to the Act, there are a significant number of policy documents that influence the role of the Commonwealth in environmental matters. While it is appropriate that the Australian, State and Territory Governments have created policies for dealing with particular environmental issues, the large number of relevant documents has the potential to create confusion for environmental managers and the public. It is also noted that several of these policies are over a decade old. Environmental issues and challenges have changed significantly over this period, and it would be useful if these documents were updated to reflect current knowledge and emerging issues. Clearly however, the EPBC Act does not carry, nor should it, the entire burden of Commonwealth government responsibility in national environmental issues.

nrm programs

2.45 Funding for NRM programs is outside the scope of this review. However, this review acknowledges the importance of aligning program outcomes and legislative objects to provide the best environmental outcomes. The key NRM program at a Commonwealth level is Caring for our Country. This program’s outcomes63 are related to the six priority areas of Caring for our Country:

■ the National Reserve System;

■ biodiversity and natural icons;

■ coastal environments and critical aquatic habitats;

■ sustainable farm practices;

■ natural resource management in northern and remote Australia; and

■ community skills, knowledge and engagement.

2.46 The outcomes clearly overlap with the scope of the EPBC Act, particularly in the areas of species listing and recovery planning, biodiversity management, protected areas management and the approval of actions in areas such as coastal and northern Australia.

2.47 Another important issue outside the scope of this review is how the objects of the EPBC Act coexist with other Australian Government policies. For instance, Ms Estelle Ross discussed in her submission the tax concessions available to Managed Investment Schemes for forestry investors and resource use by plantation forests.64 While the provisions of the Income Tax Assessment Act 1997 are beyond the scope of this review, it is important to recognise that the protection of the environment requires a consistent, whole of government approach.

62 The Senate Standing Committee on Environment, Communications and the Arts, The operation of the Environment Protection and Biodiversity Conservation Act 1999: First report (2009) (Senate Committee Report) http://www.aph.gov.au/senate/committee/eca_ctte/epbc_act/report/report.pdf at 4 May 2009, paras [2.58-2.59].

63 As outlined in DEWHA, Caring for our Country Outcomes 2008-2013 (2008) http://www.nrm.gov.au/publications/books/pubs/caring-outcomes.pdf at 18 May 2009.

64 Submission 015: Ms Estelle Ross.



indigenous issues

2.48 As with NRM programs and funding, it is important that legislation dealing with Indigenous rights and interests works to achieve the best outcomes for Indigenous people and the environment. The objects of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) are outside the scope of this review, but it would be helpful for policy-makers and regulators to clarify any confusion between this Act and the EPBC Act.

Objectives of the EPBC Act

Current provisions of the Act2.49 The current objects of the Act are:

(a) to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance; and

(b) to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources; and

(c) to promote the conservation of biodiversity; and

(ca) to provide for the protection and conservation of heritage; and

(d) to promote a co-operative approach to the protection and management of the environment involving governments, the community, landholders and Indigenous peoples; and

(e) to assist in the co-operative implementation of Australia’s international environmental responsibilities; and

(f) to recognise the role of Indigenous people in the conservation and ecologically sustainable use of Australia’s biodiversity; and

(g) to promote the use of Indigenous people’s knowledge of biodiversity with the involvement of, and in co-operation with, the owners of the knowledge. 65

2.50 These objects set the general framework for the Act and provide the paradigm through which the Act is viewed.


general comments

2.51 A significant number of submissions addressed issues related to the objects of the Act. Several of these noted their support of the Act’s objects,66 but some argued that the Act had failed to achieve its objects67 and that these objects did not reflect the appropriate role for the Commonwealth in environmental regulation and protection.68 Dr Chris McGrath noted in his submission that ‘[t]his is not merely the fault of the EPBC Act, but a systemic failure of the international and Australian environmental legal systems to prevent dangerous climate change and widespread biodiversity loss’.69

2.52 Examples of this failure cited in submissions included the findings in the State of Environment reports and the failure of the Act to deal with cumulative impacts or invasive species.70 The Australasian Native Orchid Society also argued that, while the objects of the Act were appropriate, the application of those objects was biased towards development approval rather than towards the environmental outcomes or implications of the matter under consideration.71

65 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.3(1).66 See e.g. Submission 047: Landcom, p.2; Submission 067: Santos, p.2; and Submission 033: Hunter Bird Observers Club, p.12.67 See e.g. Submission 017: Dr Chris McGrath, p.3.68 Submission 161: National Parks Australia Council, p.9.69 Submission 017: Dr Chris McGrath, p.3.70 Submission 076: Sunshine Coast Environment Council, p.1.71 Submission 155: Australasian Native Orchid Society, p.2.



2.53 The Australian Human Rights Commission submission noted with concern that the object promoting the use of Indigenous people’s knowledge of biodiversity does not also provide for the protection of this knowledge.

2.54 Manly Council recommended that the objects should consider the issue of resourcing for national heritage protection and conservation, or including heritage promotion and education, and that object (ca) should be numbered (d) to indicate its importance.72

use of the words ‘promote’ and ‘provide for’

2.55 Several of these submissions argued that the words ‘promote’ and ‘provide for’ in the objects of the Act reduced the Commonwealth’s ‘role to that of the traffic cop rather than an active protection role.’73 Several of the submissions74 received on this theme highlighted the findings of the Wielangta case75, which found that ‘promoting’ or ‘providing for’ the protection of the environment did not mean that the Government was required to actually protect biodiversity –it merely had to create a system which promoted the protection of biodiversity.

2.56 Some submissions argued further that because the objects only require ‘provision for’ or ‘promotion of ’ environmental protection, there were no minimum standards for environmental protection (‘environmental bottom lines’) which ‘guarantee environmental protection and conservation of biodiversity.’76 These submissions argued that these bottom lines should be established and that the terminology used in the Act should require the Commonwealth to protect biodiversity and the matters of NES.77

measuring the act’s performance against objectives

2.57 Some submissions suggested that a report be created, evaluating how well the Act has performed against its objects. For example, the Department of Sustainability and Environment (victoria) suggested that:

ultimately an assessment on the EPBC’s effectiveness pivots on evidence that the conditions of matters of NES are improving, or at least not deteriorating. This review would be better placed to evaluate performance of the EPBC [Act] against its objectives if quantitative monitoring data were available on matters of NES. 78

2.58 The Minerals Council of Australia (MCA) highlighted a Productivity Commission report which stated that ‘[o]bjectives of legislation should be clearly specified in terms of desired environmental outcomes, so that regulations and decisions link back to these objectives and performance of the regimes can be monitored and assessed’.79 The MCA went on to say:

The objects of the Act are framed in somewhat diluted language, meaning that the objectives ‘to provide for’ can be readily achieved. …

In their 2007 comments on recovery plans, the ANAO recommended measuring the progress of species against temporal goals; this notion should be developed to assess the overall utility and efficiency of the Act. 80

opening statement or purpose of the act

2.59 The Garner Beach Habitat Action Group suggested that an opening statement be added to the Act, stating that the operating paradigm of the Act is that ‘Australia’s ecology is our Natural Wealth; it should not be squandered’.81

2.60 Some submissions argued that the explicit purpose or aim of the Act should change. The Green Institute proposed that the purpose of the Act should be the ‘implementation of the Commonwealth’s environmental responsibilities, including all those set out in international environmental agreements to which Australia is party, unless they are elsewhere covered.’82

72 Submission 060: Manly Council, pp.2-4.73 See e.g. Submission 161: National Parks Australia Council, p.9.74 See e.g. Submission 192: Mr Tom Baxter, pp.3-4.75 Forestry Tasmania v Brown [2007] FCAFC 186.76 See e.g. Submission 153: The Wilderness Society, p.7.77 Submission 161: National Parks Australia Council, p.9.78 Submission 172: Department of Sustainability and Environment (victoria), p.6.79 Submission 164: Minerals Council of Australia, p.8, citing ‘Productivity Commission 2004’.80 Submission 164: Minerals Council of Australia, p.8.81 Submission 131: Garners Beach Habitat Action Group, p.4.82 Submission 162: The Green Institute, pp.1-2.



senate inquiry into the operation of the ePBc act

2.61 The Senate Committee’s report briefly addressed the objects of the Act. They particularly focussed on the debate of whether the objects should be couched in terms of ‘providing for’ the protection of the environment or the protection and conservation of heritage.83 The Senate Committee recommended ‘that the objects of the Act be amended to remove the words ‘to provide for’ from ss.3(1)(a) and 3(1)(ca).’84

Discussion of key points2.62 The objects of the Act provide an overview of what the Act is trying to achieve. The role of an ‘objects of the

Act’ provision in legislation is not to create a set of obligations for the Commonwealth but to be a tool that can be relied on when interpreting the provisions of the Act. The Acts Interpretation Act 1901 (Cth) provides that:

In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act … shall be preferred to a construction that would not promote that purpose or object. 85

2.63 The wording of s.3 of the Act does not impose substantive obligations on the Commonwealth (for example, it does not ‘require’ the Minister to do, or omit from doing, certain things). The role of the s.3 of the EPBC Act, which specifies the objects of the Act, is as an interpretive tool, not a set of substantive obligations; it is important to keep this in mind, particularly when examining the merits of removing the terms ‘promote’ and ‘provide for’ from the Act’s objects.

2.64 At this stage, it is important to note that the objects of the EPBC Act do not have a singular focus on the protection of the environment. Object (b) of the Act is ‘to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources’. This means that it is not the purpose of the Act to halt all actions that are likely to have a significant impact on protected matters, nor is it to allow actions with adverse environmental impacts to be taken with no redress for those impacts – a balanced approach must be taken.

2.65 As the Explanatory Memorandum to the Act states, the Act was created to redress several problems, including that:

Many of the benefits provided by the environment are used free of charge, and often access cannot be denied. Without government involvement, free access and use can result in adverse effects on the environment.

Any use of environmental resources may involve some loss of environmental quality. If the users of environmental resources do not pay for the use of those resources, or are not otherwise made responsible, the resources will be used excessively, and impose losses not only on those currently alive, but also on those yet to be born. Governments can intervene to correct this failure. …

The principles of ecologically sustainable development are now universally accepted as the basis upon which environmental, economic and social goals should be integrated in the development process. The failure to fully recognise and implement the principles of ecologically sustainable development is regarded as a fundamental deficiency in the Commonwealth’s existing regime. 86

2.66 The objects set out in s.3 are intended in part to restate those aims, as well as outline some of Australia’s key international environmental obligations which this Act is designed to implement. Determining whether those objects are still appropriate is an important part of this review; submissions received highlighted key issues with these objects.

ability to measure success against the act’s objects

2.67 As noted above, while generally supporting the Act, several submissions contended that the Act has failed to achieve its objects. A key issue with this contention is that it is hard to determine either the success or the failure of the Act in upholding its objects, as the concepts enunciated in the objects are hard to measure. Several suggestions were made as to how the Act’s success could be measured, including statistics from the number of approvals or rejections or proposed actions, or State of the Environment Reports to provide a baseline of chosen indicators of, for example, environmental health.

83 Senate Committee Report, paras [2.1-2.10].84 Senate Committee Report, para.[2.10].85 Acts Interpretation Act 1901 (Cth) s.15AA.86 Explanatory Memorandum, Environment Protection and Biodiversity Conservation Bill 1999, pp.6-7.



2.68 One issue with using statistics of approvals under the Act is that, while these statistics may give a clear picture of time taken to process referrals, or the number of referred actions that received approval, these statistics do not reflect possible behavioural changes in proponents due to the existence of the Act. For example, these statistics do not reveal the number of actions that were not carried out because the potential proponent knew such an action would not be approved under the Act, or the number of actions that were amended to minimise environmental impact prior to the referral stage, due to the existence of the Act.

2.69 Another issue in attempting to measure the success of the Act against its objects is that it is difficult to prove causal links between the provisions or implementation of the Act and environmental, social or economic outcomes. In judging the Commonwealth’s performance in protecting the environment, one cannot ignore the federal system of environmental protection in Australia, and that State and Territory legislative and policy frameworks play a crucial role in determining environmental outcomes. This issue will become more challenging as global environmental issues such as climate change have greater impacts on the Australian environment – climate change impacts cannot be solely attributed to the Australian Government, nor can the failure to protect Australian ecosystems from any impacts of climate change be entirely blamed on Commonwealth regulation of environmental matters.

2.70 However, this review acknowledges that it is important to have some indication on the success of the Act in achieving its objects. Several submissions noted the possibility of the Act having outcomes or more easily measurable objects, in order to judge its success.87 As the objects are intended to provide the general aims of the Act, it may be preferable to maintain the objects of the Act to be at the high level that they currently are, but to perhaps include a statement of the Commonwealth duties (see discussion below) or more specific outcomes with measurable targets.

2.71 A key question, given that many of the projects and actions covered by the EPBC Act are also covered by State or Territory laws, is when and how the Commonwealth system adds value to State processes.

use of the words ‘promote’ and ‘provide for’

2.72 As has been pointed out in several submissions, the objects of the Act are framed to ‘promote’ or ‘provide for’ things like ecologically sustainable development and the protection of biodiversity. As noted in some of these submissions, the Federal Court held in the Wielangta case that requiring the Commonwealth to ‘provide for’ the conservation of biodiversity obligates the Commonwealth to set up a framework that aims to conserve biodiversity. It does not require the Commonwealth to actually conserve biodiversity.

2.73 In discussing the use of the words ‘provide for’ and ‘promote’ in the objects of the Act, however, it is crucial to keep in mind the inherent potential conflicts between the objects of the Act to, for example, conserve biodiversity and a recognition of whether conservation of all species in all parts of Australia is an achievable aim in the face of issues such as climate change, where the issue is to a significant extent outside of Commonwealth control and not entirely the role of the Commonwealth in Australia.

2.74 CSIRO has noted that the ‘inevitability of significant change in species and ecosystems leads to a need to reassess the core challenge of conservation and embrace the task of “managing the change to minimise the loss”.’88 This indicates that to require the Commonwealth to conserve all biodiversity would be an almost impossible aim for the Act.

2.75 It was argued by some that the objects of the Act should be amended to require the Commonwealth to protect the environment, not just to provide that the Act is aimed at promoting its protection. In considering this argument, it may be noted that several pieces of State natural resource management legislation use language similar to that in the EPBC Act. For example, the South Australian Natural Resource Management Act 2004 has several objects, including to ‘provide for the protection and management of catchments and the sustainable use of land and water resources and, insofar as is reasonably practicable, seeks to enhance and restore or rehabilitate land and water resources that have been degraded’.89

87 See e.g. Submission 164: Minerals Council of Australia, p.8.88 Michael Dunlop and Peter Brown, Implications of climate change for Australia’s National Reserve System: a preliminary assessment (2008), p.10.89 Natural Resource Management Act 2004 (SA) s.7(1).



2.76 However, one of the more recent pieces of environmental legislation enacted by the Australian Parliament was the Water Act 2007 (discussed in further detail in Chapter 9). This Act includes an object ‘to protect, restore and provide for the ecological values and ecosystem services of the Murray-Darling Basin’.90 If the Water Act 2007 uses words such as ‘to protect’ and ‘restore’ in its objects, there is an argument that the EPBC Act can and should also take this approach.

2.77 Within this context, it is important to note that an object ‘to protect the environment’ would not of itself require the Commonwealth to conserve biodiversity. The obligations on the Commonwealth come from the substantive provisions of the Act. Inserting an object ‘to protect the environment’ would simply be a goal of the legislation which courts might use in interpreting the substantive provisions of the Act in the event of ambiguity.

2.78 In looking at approaches taken in jurisdictions in other countries, some Canadian Acts have a preamble to further elaborate on the purpose of the legislation. For example, the Canadian Environmental Protection Act (1999, c.33) has a preamble that sets out the aims of the Canadian Government in passing this Act and the background to the creation of the Act. The Act then proceeds to set out the duties of the Canadian Government with respect to environmental protection and ecologically sustainable development.91 These duties include to:

(a) exercise its powers in a manner that protects the environment and human health, applies the precautionary principle that, where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation, and promotes and reinforces enforceable pollution prevention approaches;

(a1) take preventive and remedial measures to protect, enhance and restore the environment;

(b) take the necessity of protecting the environment into account in making social and economic decisions; and

(c) implement an ecosystem approach that considers the unique and fundamental characteristics of ecosystems.92

2.79 In considering these duties, it should be noted that they require the Canadian Government both to set up processes to achieve ESD, and to protect the environment ahead of other values. It is interesting to note that under its legislation the Canadian Government has duties to:

(a) endeavour to act in cooperation with governments to protect the environment;

(b) encourage the participation of the people of Canada in the making of decisions that affect the environment;

(c) facilitate the protection of the environment by the people of Canada;

(d) establish nationally consistent standards of environmental quality;

(e) provide information to the people of Canada on the state of the Canadian environment;

(f) apply knowledge, including traditional aboriginal knowledge, science and technology, to identify and resolve environmental problems. 93

2.80 Inserting similar objects or duties into the EPBC Act could provide the basis for an Act that better facilitates public engagement with the Act’s processes and in the protection of the environment. Creating an object or duty that requires best endeavours to facilitate public participation in the Act and the protection of the environment would also be in line with Australia’s obligations under the CBD.

90 Water Act 2007 (Cth) s.3.91 Canadian Environmental Protection Act 1999 s.2.92 Canadian Environmental Protection Act 1999 s.2. 93 Canadian Environmental Protection Act 1999 s.2.



2.81 While there are significant constitutional differences in the allocation of legislative powers between the national and provincial governments in Canada compared to the allocation of powers between the Australian Government and the State and Territory Governments in Australia,94 the Canadian model may be a helpful one to reference when examining how the objects of the EPBC Act could be restructured or amended. If information about the philosophical framework in which the Act operates is set out in the objects or preamble to the Act, this could provide a greater degree of certainty for regulators, proponents and environmental groups when interpreting the meaning of provisions in the Act and what those provisions are meant to achieve.

2.82 With respect to the specific object to ‘promote’ the use of Indigenous people’s knowledge of biodiversity, issues involved with the use of Indigenous knowledge and the EPBC Act are discussed in Chapters 16 and 17 of this report.

Prioritisation of the objects of the act?

2.83 As noted above, the Manly Council submission argued that object (ca) should be numbered (d) to indicate its importance.95 The Act does not currently give priority to any of the objects of the Act, so it appears that amending the order or lettering of the objects of the Act would have little practical importance. However, there may be some symbolic value in renaming object (ca) to object (d), as it may help to change the perception that heritage is the ‘poor cousin’ in the priorities of the Act. Discussion about the heritage provisions of the Act is in Chapter 11 of this report.

2.84 Comments are invited on the merits of creating outcomes for the Act, duties of the Australian Government in protecting the environment, or the addition of a preamble to the Act. This review also seeks views on how, if at all, the objects of the Act could be amended.

The role and meaning of ‘ecologically sustainable development’

Current provisions of the Act2.85 The following principles are principles of ecologically sustainable development (ESD) (s.3A of the Act):

(a) decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations;

(b) if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation [precautionary principle];

(c) the principle of inter-generational equity – that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;

(d) the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making; and

(e) improved valuation, pricing and incentive mechanisms should be promoted.

94 Article 91 of the Canadian Constitution provides that the Government of Canada can legislate ‘in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces’ – this grants the Government of Canada a broader scope to enact general environmental legislation that the Australian Government, whose powers are limited in the Australian Constitution to those 39 powers listed in s.51. However, with the gradually broadening interpretation of the s.51 powers, it is likely that the Australian Government has sufficient power to regulate further environmental matters – see the discussion in 2.2 of this report.

95 Submission 060: Manly Council, p.4.



2.86 The principles of ESD as enunciated above are relevant to several provisions of the Act.

2.87 As noted above, one of the objects of the Act is to ‘to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources’.96 This means that any time the Minister or appropriate decision-maker is required to consider the objects of the Act, he or she must consider the principles of ESD in s.3A of the Act.

2.88 The Minister is also specifically required to take into account the principles of ESD when deciding whether or not:

■ to approve the taking of an action, and what conditions to attach to an approval;97

■ to make a declaration that actions do not need approval under Part 9 of the Act;98 and

■ to approve an action taken in accordance with an endorsed policy, plan or program.99

2.89 If other Ministers are invited to provide comments on a proposed decision, these comments may be considered by the Minister consistently with the principles of ESD.100

2.90 When considering whether to make a conservation order, ‘the Minister must be satisfied that making the order is justified, having regard to economic and social considerations that are consistent with the principles of ecologically sustainable development.’101

2.91 A further requirement to have regard to the principles of ESD applies when making a recovery plan, wildlife conservation plan or threat abatement plan. In this case, regard must be had to ‘minimising any significant adverse social and economic impacts, consistently with the principles of ecologically sustainable development’.102

2.92 Finally, annual reports under s.516A of the Act are required to:

(a) include a report on how the activities of, and the administration (if any) of legislation by, the reporter during the period accorded with the principles of ecologically sustainable development ; and

(b) identify how the outcomes (if any) specified for the reporter in an Appropriations Act relating to the period contribute to ecologically sustainable development. 103


ecologically sustainable development (esd)

2.93 Some submissions discussed considerations related to the object to promote ecologically sustainable development. These submissions tended to argue that the current ‘framework is inadequate and inappropriate to the Commonwealth’s role.’104 The urban Taskforce Australia submission argued that ‘the objects of the Act be simplified to reflect the primacy of ecologically sustainable development as the rationale for the Act.’105

2.94 Mr Derek Fenton suggested that the words ‘in a manner which gives equal weight to economic and environmental matters’ be added to the end of the definition, to remove the element of subjectivity.106

96 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.3(b).97 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.136.98 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.37B.99 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.146F.100 Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss.131(2) and 146C(2).101 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s. 464 (3).102 Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss.270(3), 271(3) and 287(3).103 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.516A(6).104 See e.g. Submission 191: Conservation Council of South Australia, p.6.105 Submission 149: urban Taskforce Australia, p.3.106 Submission 043: Mr Derek Fenton, p.3.



2.95 To improve the assessment of long-term and short-term economic, environmental, social and equitable outcomes from development actions on the Indigenous estate, the Centre for Aboriginal Economic Policy Research recommended that further attention be paid to valuations of the customary use of wild resources to more completely assess economic impacts on Indigenous people.107

use of the precautionary principle in decision‑making

2.96 Several submissions raised the issue of how the precautionary principle should be used in decision-making.108 There were different perspectives on how this principle should be applied in decision-making under the Act. The majority of submissions on this topic argued that the precautionary principle was not being used enough in the Act’s processes. However, a few submissions were concerned about the over-use of the precautionary principle in decision-making. For example, the Property Council of Australia argued that:

The ability to call projects in on the grounds of uncertainty should be significantly restricted in the face of limited scientific evidence or where clear predetermined thresholds have not yet been reached.

If governments are concerned about making decisions in the face of a lack of ‘full scientific certainty’, more effort should be made to obtain complete data sets on threatened species or ecological communities. 109

2.97 The Association of Mining and Exploration Companies also noted that ‘where sound scientific principles and factual data is unavailable, the significant economic and social benefits from successful mineral exploration and mining activities should still be afforded high priority and appropriate recognition provided in the decision making process.’110


The national strategy for ecologically sustainable development

2.98 The current conception of ESD is taken from the 1987 report of the World Commission on Environment and Development, Our Common Future (the Brundtland Report). The Brundtland Report defines ESD as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs.’111 It goes on to note that:

sustainable development is a process of change in which the exploitation of resources, the direction of investments, the orientation of technological development; and institutional change are all in harmony and enhance both current and future potential to meet human needs and aspirations.112

2.99 Australia’s response to this report and the subsequent adoption of Agenda 21 (the global action plan for sustainable development) and the Declaration on the principles of sustainable development (The Rio Declaration) was the National Strategy for Ecologically Sustainable Development (1992). The National Strategy for Ecologically Sustainable Development provides the following definition for ESD:

using, conserving and enhancing the community’s resources so that ecological processes, on which life depends, are maintained, and the total quality of life, now and in the future, can be increased.113

107 Submission 130: Centre for Aboriginal Economic Policy Research, pp.4–5.108 See e.g. Submission 189: Australian Network of Environment Defenders’ Offices, pp.85-86; and Submission 049: Association of Mining and

Exploration Companies, p.4.109 Submission 176: Property Council of Australia, p.16.110 Submission 049: Association of Mining and Exploration Companies, p.4.111 World Commission on Environment and Development, Our Common Future (1987) http://www.un-documents.net/ocf-02.htm#I at 22 May 2009,

Chapter 2 [1]112 World Commission on Environment and Development, Our Common Future (1987) http://www.un-documents.net/ocf-02.htm#I at 22 May 2009,

Chapter 15 [1] 113 Council of Australian Governments, National Strategy for Ecologically Sustainable Development (1992) http://www.environment.gov.au/esd/national/

nsesd/strategy/, at 22 May 2009.



esd and the ePBc act

2.100 It is important to acknowledge that the principles of ESD are foundation principles for the EPBC Act, and that the Act was intended to correct a past failure to ‘recognise and implement the principles of ecologically sustainable development’114 – a failure which the Explanatory Memorandum to the Act described as a ‘fundamental deficiency in the Commonwealth’s existing regime.’115 While this is clear from an examination of the Explanatory Memorandum and from certain provisions of the Act, placing ESD at the forefront of the objects of the Act may symbolically remind regulators, proponents and members of the community of the primary role of the Act – to implement Australia’s international obligation to develop in an ecologically sustainable manner. This could possibly be done by inserting a ‘preamble’ to the Act (see further discussion above in relation to the objects of the Act), which could serve as further guidance for decision-makers, proponents and interested members of the community in how the principles of ESD, including the precautionary principle, will be taken into account in the decision-making processes under the Act.

2.101 Achieving an appropriate balance of all the relevant social, economic and environmental considerations is a challenging task and one that is invariably a value judgement. Several submissions noted that it is at least unclear whether environmental, economic and social considerations have been well integrated into decision-making processes under the Act, with some going so far as to say that the Act had failed to lead to decisions that promoted ecologically sustainable development. This is a challenging contention to prove, but indicators of achieving ESD could be rates of habitat loss, rates of species decline or indicators of ecosystem health and function. As suggested above, the success of the Act could be judged through creating outcomes for the Act, with short-term and long-term goals. Creating such outcomes could also provide the further guidance sought by some submitters.116

2.102 The use of Indigenous knowledge is discussed further in Chapter 17.

Interaction with State, Territory and local governments

Current interactions with State, Territory and local governments2.103 There is currently a significant level of formal and informal interaction between the Commonwealth, State,

Territory and Local governments in areas such as environmental impact assessment, fisheries management, heritage listing and management of World Heritage areas and National Heritage places and threatened species listing and recovery planning.

2.104 Informal interactions occur on a daily basis between different levels of Government, as State, Territory and Local governments often have a significant degree of expertise regarding specific places or species at a State and Territory or regional level. More formal interactions occur through the Council of Australian Governments (COAG) and at a range of Ministerial forums, such as the Natural Resource Management Ministerial Council. In addition, States and Territories are often the proponent in major infrastructure projects, so State and Territory governments are often actively involved in assessments under the Act.

2.105 More detailed discussion about State and Territory and local government interactions with the Commonwealth in EPBC Act activities, such as in the environmental impact assessment process and biodiversity protection, can be found in later chapters of this report.

114 Explanatory Memorandum, Environment Protection and Biodiversity Conservation Bill 1999, p.6.115 Explanatory Memorandum, Environment Protection and Biodiversity Conservation Bill 1999, p.7.116 See e.g. Submission 176: Property Council of Australia, p.16.




role of commonwealth, state / territory and local governments in environmental management

2.106 It was argued in some submissions that the interaction between Commonwealth, State Territory and local Commonwealth Government planning has not been effective as it could be.117

2.107 The Property Council of Australia’s submission called for the Commonwealth Government to assume an auditing role (in regards to EIA) and only call for referrals where a clear breach of the Act has occurred, or in cases where it is agreed by both governments that a joint assessment would be the most suitable and efficient review mechanism.118

2.108 Some submissions called for the Commonwealth to assume a greater role in environmental matters vis-à-vis the States and Territories. For example, the Hunter Bird Observers Club argued that ‘the Commonwealth Government should take greater control of the assessment and implementation of development projects to ensure environmental standards are not compromised by local and political considerations’.119

2.109 Some submissions noted that Commonwealth and State/Territory legislation needed to better integrate (for example, by having reciprocal listing arrangements). The WWF submission, for example, suggested that the Inter-Governmental Agreement on the Environment, the 1997 COAG agreement and the National Strategy for Biological Diversity should be revisited to establish a more coherent long-term national policy framework that links national, state, regional and local priorities.120

2.110 Some submissions discussed the Commonwealth’s role in particular environmental issues. These specific issues are discussed in detail in other Chapters of this report.

environmental impact assessment (eia)

2.111 Submissions expressed a range of views on the role of the Commonwealth, and the extent to which it should undertake EIA on a project-by-project basis. The MCA contends that there is no role for the Commonwealth, because:

[P]roject approvals are not a ‘missing-link’ in biodiversity management, the Commonwealth activities in this space are a duplication of existing state processes. However, there are significant gaps in biodiversity conservation and management in Australia, that the Commonwealth could effectively fill with its existing powers under the Act. 121

2.112 Submissions that supported the Commonwealth’s engagement in the EIA process advocated two roles – the Commonwealth as a standard setter; and the Commonwealth as a ‘decision-maker of last resort’. Some submissions suggested that the Commonwealth was or should be a leader in the quality of EIA undertaken; or that the Commonwealth should set the standard for assessment, and that State and Territory regimes modify their regimes to meet this standard – perhaps so the State or Territory could engage in a bilateral agreement with the Australian Government. In this vein, submissions also supported the Commonwealth’s potential role in setting uniform EIA standards across jurisdictions.

117 See e.g. Submission 018: Ipswich City Council, p.2.118 Submission 176: Property Council of Australia, p.8.119 Submission 033: Hunter Bird Observers Club, p.13.120 Submission 181: WWF, p.16. Please note that the National Biodiversity Strategy is being reviewed, and a new draft was released earlier this year:

http://www.environment.gov.au/biodiversity/strategy/review.html at 3 June 2009.121 Submission 164: Minerals Council of Australia, p.12.



land use

2.113 It was argued in several submissions that the lack of direct Commonwealth involvement in land-use planning limited the effectiveness of the Act, as conservation and development outcomes had not been integrated at either Commonwealth or State level.

2.114 While the Canberra Ornithological Group suggested that more needs to be done to ensure smaller-scale development projects, especially in rural areas, are referred for assessment, the majority of submitters on this topic expressed the view that the Commonwealth should not be involved in individual, small-scale project approvals.122 It was suggested that the more appropriate role for the Commonwealth would be focussing on strategic investments, planning and assessing environmental outcomes through monitoring and auditing compliance.

2.115 Some submissions called for the Commonwealth to have an expanded role in land use planning, suggesting either that the Commonwealth have overriding authority over planning and land use matters, or that the Act apply to regional plans, water plans, transport and population planning (particular those containing listed species or ecological communities).123

2.116 It was suggested that the Act be amended to require the Minister to have regard to State and local planning and environmental legislation and policies/schemes when determining whether to approve a proposed action under the Act. It was argued that consideration of state planning under the Act would reduce delays for developers, reduce conflict and confusion between State and Commonwealth biodiversity objectives, and increase certainty for the Commonwealth. It was also argued that it would be preferable for the Commonwealth to take greater control of projects, rather than simply adding to State and Territory Governments’ conditions.

2.117 With regards to State and Territory legislation, some submissions argued that considerations of matters of NES should be integrated into all State and Territory planning regimes.

timing of the application of the act

2.118 A few submissions noted that the Act applies at too late a stage in the development process, and that the Act should apply at an earlier, more strategic level in order to achieve better biodiversity outcomes. The Local Government and Shires Association of NSW submission suggests that options for mandating strategic assessments prior to the development application stage should be explored.124

2.119 With respect to climate change impacts on threatened species, the Ipswich City Council suggested that the Act should be used as precautionary legislation before a species is threatened, in order to respond quickly to threats.125


The role of commonwealth, state, territory and local governments in eia

Commonwealth role and interaction with State and Territory Governments

2.120 The reasons for Commonwealth engagement in EIA are, on the face of it, to protect matters of NES. As the Commonwealth is charged with various international obligations and responsibilities pertaining to a range of environmental matters, it is appropriate that the Commonwealth should have some manner of regulating actions that are likely to have unacceptable impacts upon these matters. It follows that a system of assessing, preventing, minimising and mitigating significant impacts upon these environmental matters is necessary to fulfil the Commonwealth’s role. The way that this responsibility is discharged, and the role of the Commonwealth is shaped by the respective roles of State and Local governments, issues of scale, boundaries and constitutionality.

122 Submission 109: Canberra Ornithological Group.123 Submission 103: Ku-ring-ga; Bat Conservation Society, p.3.124 Submission 077: Local Government and Shires Associations of NSW, p.3.125 Submission 018: Ipswich City Council, p.3.



2.121 Many submissions, particularly from industry and State Governments, raised concerns that as each State and Territory government engage in some form of project-by-project EIA, there is significant potential for duplication of efforts under environmental legislation. This is discussed further in Chapter 23 of this report.

2.122 The idea of the Commonwealth as a standard setter has some traction, as the EPBC Act provides uniform regulation across jurisdictions and would provide a standard to assess whether a comparative State or Territory regime provided greater or lesser protection than the EPBC Act. Alternatively, less stringent regimes would be consistently frustrated by a Commonwealth EIA regime which, when implemented, resulted in the refusal or modification of projects previously approved under that State or Territory regime. However, the objects of the State and Territory EIA regimes and the matters protected under these regimes vary and may not provide a suitable basis for comparison on the outcomes of projects. What may be comparable are the standards of assessment, for example periods for public comment, statutory deadlines, matters taken into consideration and opportunities for judicial and merits review.

2.123 A more appropriate role may be of the Minister providing ‘oversight’ of projects approved at State and Territory level – ideally involving early intervention and collaboration. A possible avenue for this to occur would be Commonwealth accreditation of high quality State and Territory processes.

2.124 ultimately EIA under the EPBC Act differentiates itself from EIA under State and Territory jurisdictions because of the way in which the EIA processes are triggered. State and Territory EIA processes are largely triggered by the types of activities proposed, whereas the Act’s assessment and approval processes are triggered by the level of impact on a protected matter under the Act. For example, a State Act may require assessment of the construction of a large housing development simply because it falls within the category of developments assessed under that legislation. In contrast, at a Commonwealth level, construction of a large housing development will only require approval under the EPBC Act if it is likely to have a significant impact on a matter of NES or the development is to take place on Commonwealth land. Where there is overlap, and State EIA considers the same activity as the EPBC Act, bilateral agreements can limit the Commonwealth’s role in assessment of the impacts.

2.125 The current system of assessment bilateral agreements, where the Commonwealth accredits State and Territory assessment processes, is discussed in detail below. In the Commonwealth’s role as a leader or standard-setter, there may be some capacity to reverse the existing bilateral agreements and have State and Territories accredit the Commonwealth assessment processes in certain circumstances. This may reduce the duplication associated with having both Commonwealth and State and Territory assessments, while maintaining the high standard of assessment process established by the EPBC Act.

Role of Local Government in EPBC Act EIA

2.126 There is a need to regularly evaluate the role of Commonwealth EIA and the extent to which the Commonwealth regime works with State and Territory processes. When considering this interrelationship it is important to recognise the different spatial scales at which the EPBC Act and the State and Territories operate.

2.127 The State and Territory regimes aid the operation of the EPBC Act through their localised approaches. The State and Territory regimes can also consider a broader range of environmental matters, as they are not limited to matters of NES.

2.128 It is the capacity to access local information and understand what occurs ‘on the ground’ that underlies the importance of State and local governments in the referral process. Submissions indicated that the capacity of Local Governments to refer actions under the EPBC Act should be clarified, and that local government awareness of the EPBC Act needs to be continually raised. A combination of these actions may address the issue of under-referral of certain actions, discussed below.



interaction with state and territory governments

2.129 As stated earlier in this chapter, due to Australia’s federal system, it is both necessary and appropriate that the Australian Government interacts with its State and Territory counterparts.

2.130 State and Territory governments have considerable experience in planning and natural resource management planning. The Australian Government also interacts with State and Territory Governments on the basis that these governments often have to refer Crown infrastructure projects to the Minister for assessment and approval under the EPBC Act.

2.131 With respect to the argument to take responsibilities for environmental matters from State and Territory and Local governments and place them under the EPBC Act, there are a few issues that require consideration. In addition to the potential constitutional barriers to this proposed change, it would be extremely challenging for the Commonwealth to assume responsibility for the large number of the assessments currently being undertaken by local, State and Territory governments. While the current system of determining what level of government is the most appropriate assessor of an action may be confusing to the public, there are other methods of simplifying EIA processes than simply taking over responsibility for all assessments, as discussed in Chapters 4 and 23 of this report. As outlined above in this Chapter, it is hard to determine whether or not a particular regulatory framework for environmental protection has failed, due to the lack of easily measurable outcomes and the significant influence of other extra-regulatory factors on environmental outcomes.

2.132 However, the arguments posed in some submissions that Commonwealth and State and Territory legislation needs to better integrated have some merit. Specific examples of how this can occur (for example, by having reciprocal listing arrangements) are discussed further in other chapters of this report. However, the WWF suggestion to revisit the Heads of Agreement, to establish a more coherent long-term national policy framework that links current national, state, regional and local priorities is one for consideration by the relevant Governments.

2.133 Other suggestions raised in submissions could also be explored further. For example, it may be helpful for proponents, the local community and decision-makers to require the Minister to have regard to relevant State or Territory and local planning and environmental legislation, schemes or policies in order to understand the context in which the proposed action will occur.

2.134 This requirement in the Commonwealth EIA process could be mirrored in State and Territory legislation, by requiring considerations of matters of NES in local planning regimes. This suggestion would require further consultation with the relevant State, Territory and local government planning authorities.

appropriate commonwealth role in eia

2.135 Any changes to, or attempts to better define, the Commonwealth’s role in EIA would need to occur within the context of the Constitution and the relationship between the different levels of Government.

2.136 If the Commonwealth role is to be expanded so that the Commonwealth is to become more involved in the local land-use planning process, it will be important to keep in mind the reasons why the Commonwealth should be involved. The regime in place under the EPBC Act, which originally found its basis in the Heads of Agreement, is careful to describe the role of the Commonwealth as limited to actions taken by the Commonwealth, actions on Commonwealth land and in Commonwealth marine areas, and actions likely to impact on matters of national environmental significance. A greater use of strategic assessment or other landscape assessment mechanisms would be appropriate provided the Commonwealth continues to focus on matters that are truly of national significance.



Current and emerging environmental challenges for the Commonwealth


framework of the act

2.137 Several submissions argued that the Act currently takes a reactive approach to biodiversity conservation analogous to ‘ecological triage’.126 These submissions argued that the framework of the Act should be amended so that it takes a more proactive approach to protecting biodiversity.127 It was argued that this could include a shift away from the protection of individual species towards landscape-scale biodiversity planning and setting and overseeing implementation of regional targets and objectives on environmental matters.128 CSIRO noted that:

The Act adopts and promotes a perspective on the nature and value of Australia’s biodiversity that emphasises listed threatened species and threatened ecological communities. However, only a small proportion of the total compositional diversity of Australia’s biota can ever be addressed explicitly by the listing of threatened species and communities. …

The logic behind using a fixed list of communities to assess conservation status (as assumed in the current Act) is likely to fail under climate change.

A likely consequence of this is the need to shift focus from protecting individual species to providing as much opportunity for as many species as possible to survive.129

2.138 The potential shift in the Act towards landscape approaches is discussed further in Chapters 10 and 13.

2.139 The Wet Tropics Management Authority noted that there has been ‘a fundamental worldwide shift in recent years towards the “internationalisation” and “nationalisation” of environmental issues and recognition of the commonality of the main global drivers of environmental change’.130

2.140 The Green Institute called for a discussion as to how we can best protect the environment in the 21st century, ‘taking into account the interconnected political, economic and social dimensions, and design the necessary new governance arrangements’.131

Discussion of key points2.141 As noted above, several submissions believed that the Act was not ‘proactive’ enough in its approach

to protecting the environment. Related criticisms included that the Act did not adequately employ the precautionary approach in decision-making.

2.142 Submissions to this review have raised several possible remedies to this perceived problem, mainly focusing on the Commonwealth becoming involved earlier in the planning or development process. Possible ways of achieving this could include amending the definition of ‘action’ to include government planning processes, and better and more frequent utilisation of strategic assessments and bioregional planning tools. Landscape approaches are discussed in Chapter 10.

2.143 The political and physical environment has continued to change since the EPBC Act came into operation nine years ago. Some submissions and the Australian Greens in their Additional Comments on the Senate Committee’s report argued that the Act is no longer the best regulatory mechanism to deal with current and emerging environmental challenges, including climate change, population growth, urban development, invasive species, changes in water availability around Australia and altered fire regimes. This review noted CSIRO’s contention that due to major advances in ecological and conservation theory, principles and assessment methodologies, the core objectives of biodiversity conservation need to shift from trying to prevent change, to trying to manage the changes and minimise the losses that will occur.132

126 Submission 064: Bird Observation and Conservation Australia, p.1.127 Submission 101: Mr Jamie Pittock, Dr Debra Saunders and Ms Karen Stagoll, p.1.128 See e.g. Submission 150: New South Wales Scientific Committee, p.12.129 Submission 135: CSIRO, p.2.130 Submission 134: Wet Tropics Management Authority, p.1.131 Submission 162: The Green Institute, p.9.132 Submission 135: CSIRO, p.3.



2.144 While this review acknowledges the significant threat that climate change poses to biodiversity and the whole environment (including humans), it is also noted that the general framework of the Act is likely to have the capacity to adapt to deal with future environmental challenges. For example, regardless of the impacts of climate change, the Commonwealth still has a role in assessing the environmental impact of certain, nationally significant actions. In looking at threatened species management, it is and will continue to be necessary to assess the status of biodiversity in Australia, the threats to that biodiversity, and how best to minimise the impacts of those threats to biodiversity. While changes may be needed in both of these areas of environmental management in order to best equip the Commonwealth to deal with nationally significant environmental matters, the preliminary view of this review is that the EPBC Act is and will continue to be an important tool for the Commonwealth in fulfilling its particular role in protecting the Australian environment. The primary question for this review is whether the current legislative regime is capable of adapting and responding to emerging threats and a changing environment.

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