On 31 October 2008, the Federal Minister for the Environment, Heritage and the Arts, Peter Garrett, announced the first independent review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The Review is being undertaken under section 522A of the EPBC Act, which requires it to be independently reviewed every ten years to investigate how it is operating and the extent to which it is achieving its objects. The Review is intended to be complete by 31 October 2009.
The review will be undertaken by Dr Alan Hawke, who will be supported by a panel consisting of The Honourable Paul Stein AM, Professor Mark Burgman, Professor Tim Bonyhardy and Rosemary Warnock.
Terms of Reference
Under the Review's terms of reference, the Review will examine:
- the operation of the EPBC Act generally;
- the extent to which the objects of the EPBC Act have been achieved;
- the appropriateness of current matters of National Environmental Significance (NES); and
- the effectiveness of the biodiversity and wildlife conservation arrangements.
The Federal Government released a Discussion Paper, which sets out some key questions and information to be considered in the Review. A copy of the Discussion Paper is available on the website of the Department of Environment, Heritage and the Arts.
Particular Issues
Out of the key questions posed in the Discussion Paper, I believe the following are the most important from the perspective of the development, resource and energy industries:
- Is the definition of 'action' appropriate?
- What kind of impacts should be considered under the EPBC Act? In particular, does the EPBC Act adequately encompass not just direct but also indirect impacts?
- Does the test of significance, in the context of actions having a 'significant' impact on a matter of NES, operate effectively in practice? Should there be another test? If so, what should it be?
- Are appropriate projects being referred for approval?
- Is the hierarchy of environmental assessment approaches (e.g. ranging from assessment on referral information to assessment by public inquiry) effective?
- Does the EPBC Act operate effectively in conjunction with State and Territory planning and environmental impact legislation? Are existing bilateral agreements achieving the objects of the EPBC Act?
- Are there further opportunities to harmonise the EPBC Act with other State and Territory legislation?
- Does the EPBC Act provide for the appropriate follow-up of environmental assessment and approval decisions, including the monitoring, evaluation and auditing of actions? If not, what other actions could be taken?
- Are the offence and civil penalty provisions appropriately framed to encourage compliance with the EPBC Act?
- Does the EPBC Act contain a sufficiently comprehensive and appropriate range of enforcement mechanisms? Are those mechanisms capable of deterring and responding to contraventions of the EPBC Act?
- Does the EPBC Act provide sufficient guidance for decision makers in their consideration of uncertainty when making decisions under the EPBC Act? If not, how should the EPBC Act deal with uncertainty?
- Should there be more scope for merits review under the EPBC Act? Would the disadvantages of this process – in terms of costs and delays – be outweighed by the advantages?
Next Steps for the Review
Public submissions on the Review are invited and are due by 19 December 2008. The panel is due to provide its final report to the Minister by the end of October 2009. We will keep you updated on the progress of the Review as it continues.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.