The next phase of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) review has now commenced – with Professor Samuel AC and the independent expert review team releasing a Discussion Paper inviting comments and posing a number of thought provoking questions about the role of federal environmental regulation in Australia for the future.
Submissions on the discussion paper are due by 14 February 2020, as the first step in consultation for the EBPC Act review.
As outlined in our previous article about the EPBC Act review, the release of the Discussion Paper is the next milestone in this process, which is detailed below:
The review is seeking to identify areas where reform could make the biggest difference to the environment, business and the community with a focus on:
- The role of the EPBC Act.
- Better environment and heritage outcomes.
- More efficient and effective regulation and administration.
- Indigenous Australian’s knowledge and experience.
- Community inclusion, trust and transparency.
- Innovative approaches.
The broad terms of reference of the review has enabled the team to pose some interesting questions and suggestions as to how the EPBC Act could operate. The Discussion Paper does a 360 degree stocktake to encourage feedback as to how the legislation is currently operating, what the future environmental challenges in Australia may look like and potential options and role for the federal government in those scenarios.
While the Discussion Paper in no way tries to limit the scope of any feedback provided about the EPBC Act, the review team has asked a number of questions which go to the heart of the legislation, including:
- Should the matters of national environmental significance within the EPBC Act be changed and the regulatory reach of the Commonwealth be extended?
- In considering the core “economically sustainable development” principles of environmental, social and economic factors; should this include a greater inclusion of cost benefit analysis in decision making?
- Should the EBPC Act seek to regulate “outcomes” rather than managing prescriptive processes or, is a better alternative, administrative improvements that increase certainty and transparency in decision making?
- Should the States and Territories be delegated powers to deliver EPBC Act outcomes subject to national standards?
- Is it the case that landscape level approaches should be taken to impact assessment – such as by way of strategic assessments and bioregional planning – to replace case-by-case assessments and if so, who should take the lead or participate in this process?
The Discussion Paper acknowledges that the EPBC Act was prepared at a time when traditional regulatory approaches were taken, in terms of imposing rules on individuals and business through legislation with the goal of protecting the environment. The review provides an opportunity for this process to be revisited and an inquiry be undertaken into other innovative options to promote alternative outcomes. These options may include (potentially, in a limited way) ecosystem services markets, alternative financing arrangements, co- or self-regulation, environmental accounting and information and education-based approaches.
Discussion Paper – From the Front Row to the Nosebleed Section
The review team has posed a number of principles to guide the review and the goals being sought. These include (and are open to submission in themselves):
- Effective protection of Australia’s environment: through effective, clear and focussed protections.
- Making decisions simpler: achieving efficiency and certainty in decision making, including by reducing unnecessary regulatory burdens.
- Indigenous knowledge and experience: ensuring the role of Indigenous Australians’ knowledge and experience in managing Australia’s environment and heritage.
- Improving inclusion, trust and transparency: through better access to information and decision making, improved governance and accountability arrangements.
- Supporting partnerships and economic opportunity: to deliver for the environment, supporting investment and creating new jobs.
- Integrating planning: by streamlining and integrating regional planning to support ecologically sustainable development.
The Back-Row Heckler
While the review is at the preliminary stages of scoping and consultation, the Discussion Paper and the optionality raised in the document, opens a number of additional questions such as:
- How will the regulatory changes be funded and met – will a top down approach or foreseeably, a bottom up, approach be taken?
- In a regional assessment scenario – who will take the lead? What impacts will be within scope? Who will own and be able to rely upon the assessment data?
- What methodology is proposed to undertake an economic assessment of environmental values?
The Discussion Paper is also surprisingly quiet in asking questions as to analysing the effectiveness of enforcement processes under the EPBC Act and whether the current options are fit for purpose and meeting expectations.