Australia: The Independent Hawke Review of the EPBC Act - Australia

Too repetitive. Unnecessarily complex. Overly prescriptive.

Anyone who deals with the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) will know that these are appropriate descriptors. So, it is not surprising then that the Final Report of the Independent Hawke Review of the EPBC Act (Hawke Review) has reached the same conclusion as those of us in practice.

The Final Report was provided to the Minister for the Environment, Heritage and the Arts in October 2009 and released to the public just prior to Christmas. The Hawke Review has put forward 71 recommendations designed to build on the current Act and "better place the Australian Government in managing the environmental challenges of the future".

The core elements of the reform package are:

  • redraft the EPBC Act to better reflect the Australian Government's role, streamline its arrangements and rename it the Australian Environment Act
  • establish an independent Environment Commission to advise the government on project approvals, strategic assessments, bioregional plans and other statutory decisions
  • invest in the building blocks of a better regulatory system such as national environmental accounts, skills development, policy guidance and the acquisition of critical spatial information
  • streamline approvals through earlier engagement in planning processes and provide for more effective use and greater reliance on strategic assessments, bioregional planning and approvals bilateral agreements
  • set up an Environmental Reparation Fund and national 'biobanking' scheme
  • provide for environmental performance audits and inquiries
  • create a new matter of national environmental significance for 'ecosystems of national significance' and introduce an interim greenhouse trigger
  • improve transparency in decision-making and provide greater access to the courts for public interest litigation, and
  • mandate the development of foresight reports to help government manage emerging environmental threats.

The purpose of this update is to focus on just a few of the recommendations.

Out with the old...

The Final Report reflects comments from the community and professionals alike that the EPBC Act is hard to understand and navigate. The current title of the EPBC Act is said also to be arguably misleading, as the title covers some aspects of the legislation but not all. In particular, the Final Report states that it does not reflect the role of the Commonwealth in heritage protection and management. Nor does it reflect that it is national legislation. Therefore, the first recommendation of the Hawke Review is to repeal and replace the EPBC Act with a new statute called the Australian Environment Act which will:

  • be restructured and drafted to modernise, clarify, simplify and streamline both language and process;
  • reduce duplication of processes; and
  • increase the focus on strategic approaches to environmental management.

New Triggers

Under the EPBC Act actions which have or are likely to have a significant impact on matters of national environmental significance require assessment and approval. The current matters of national environmental significance under the EPBC Act are:

  • World Heritage properties;
  • National Heritage places;
  • wetlands of international importance (Ramsar listed wetlands);
  • listed threatened species and ecological communities;
  • migratory species protected under international agreements (such as CAMBA and JAMBA);
  • the Commonwealth marine environement;
  • the Great Barrier Reef Marine Park; and
  • the environment, where the action proposed is a nuclear action (including uranium mines).

The final report noted that to justify the inclusion of a new matter of national environmental significance, there must be an identified gap or policy failure in the current protected matters. Several such gaps were identified in submissions made to the Hawke Review. Such policy gaps included:

  • climate change adaptation;
  • approaches to biodiversity conservation;
  • cumulative impacts;
  • protection of ecosystem integrity; and
  • regulation of "not yet threatened" or keystone species.

On the basis of this, submissions also proposed several new matters of national environmental significance in the EPBC Act, such as:

  • greenhouse gas emissions or climate change impacts;
  • water issues (including water extraction or interception, wild rivers and wetlands of national importance);
  • land clearance;
  • gene technology or release of genetically modified organisms;
  • management of national waste; and
  • specific areas in Australian, for example the Murray – Darling Basin or the Coorong.

The Hawke Review did not support the addition of all suggested triggers but recommended that:

  • the EPBC Act be amended to include "ecosystems of national significance" as a new matter of national environment significance;
  • an interim greenhouse gas trigger, with a threshold of at most 500,000 tonnes of carbon dioxide equivalent emissions, be introduced as soon as possible by way of Regulation to sunset upon commencement of the Carbon Pollution Reduction Scheme; and
  • the EPBC Act be amended to insert a requirement to consider cost effective climate change mitigation opportunities as part of strategic assessments and bioregional planning processes.

In this respect the Hawke Review considered the use of Regulation to insert a greenhouse gas trigger as preferable (as opposed to by way of an amendment to the EPBC Act), because of the need to act quickly. It was considered that this could ensure that emissions intensive developments properly consider and implement low cost embankment solutions in the construction and operation, reducing the "lock-in" of carbon intensive activities over the life of the project.

It is important to note, however, that the Federal Minister for the Environment has stated that the Australian Government will not consider such a greenhouse gas trigger. It is not clear whether this policy position will change in light of recent domestic developments and the likely voting down of the CPRS legislation early this year.

Code of Conduct for consultants

The Final Report states that many submissions to the Hawke Review expressed concern about the quality of information supplied in referral documentation and during assessments although it is worth noting that limited evidence was provided to support these claims. The Final Report identified community concern that environment and planning consultants may not be suitably qualified to conduct environmental impact assessments, or that they may be financially beholden to the proponent and produce biased reports that do not reflect the extent of environmental impacts of projects. The Hawke Review therefore recommended that the Australian Government, in consultation with the environment and planning consultancy industry, develop an industry Code of Conduct for consultants supplying information for the purposes of the environmental impact assessment and approval regime under the EPBC Act.

To compliment the Code of Conduct, the Hawke Review recommended also that the Environment Minister:

  • audit the information and referral documentation and/or assessment information; and
  • audit protected matters to test if the predictions made in Environmental Impact Assessments were correct.

Review mechanism and access to courts

The Hawke Review noted that a key concern raised in public submissions was the limited number of decisions made under the EPBC Act that can be subject to merits reviews. For example merits review is not available for any of the key decisions about environmental impact assessment and project approval. Environment groups in particular consider that judicial review (the only alternative to merits review) is typically of little use for environmental litigation where it is the poor nature of an administrative decision that allegedly needs to be addressed.

In contrast the Hawke Review noted that the current system is predicated on proponents being able to get a quick answer as to whether their project triggers the assessment and approval processes under the EPBC Act. Merits review could slow down this part of the process.

Further, controlled action decisions turn on an evaluation of the likelihood of a significant impact on a matter of national environmental significance. Given the difficulty in determining "significant impact", the Hawke Review thought it was questionable whether the nature of the controlled action decision meant it is suitable for merits review.

Despite this, the Hawke Review considered that extending merits review to the controlled action and/or assessment approach decision would be a modest change. On that basis the Hawke Review recommended:

  • that the Australian Government consider amending the EPBC Act so that the controlled action and/or assessment approach decisions are open to merits review; and
  • that the EPBC Act be amended to prescribe an extended definition of legal standing for the purpose of merits review applications to include persons who made a formal public comment during the relevant decision making process.

The Hawke Review also considered the issue of access to courts, the cost of litigation and the impact of courts requiring undertakings as to damages. The Hawke Review noted that as a general rule a person wishing to restrain the activities of another by way of an interim or interlocutory injunction must provide an undertaking as to damages. This means that the person seeking the injunction agrees to submit, at the conclusion of the proceedings, to any order the court may make for the payment of compensation to persons who may have been adversely affected by the operation of the interim injunction. Until 2007, the Federal Court was not permitted to require an applicant to give an undertaking as to damages as a condition of granting an interim injunction in respect of public interest environmental litigation..

This prohibition was removed by amendments to the EPBC Act, which has caused considerable concern for environmental and community groups. On that basis the Hawke Review recommended that a provision be reinserted into the EPBC Act to the effect that the Federal Court is not to require an applicant to give an undertaking as to damages as a condition of granting an interim injunction.

Consistent with this approach the Hawke Review also recommended that the EPBC Act be amended to prohibit the ordering of security for costs in public interest proceedings. In further support of public interest environmental litigation, the Hawke Review recommended that the EPBC Act be amended to empower the Federal Court to decide, as a preliminary matter, whether a case is a "public interest proceeding" and, if so, to determine the appropriate form of "public interest costs order". This would allow the Federal Court, for example, to make a "no cost" order, a capped cost order, or one way cost shifting order or indemnity.

As the decision about whether a case is a public interest one is to be a preliminary one, the Hawke Review considers it would provide the parties with certainty as to how costs will be awarded in the proceedings. It would also allow the parties to make an informed decision about whether they wish to proceed with the case before each party incurs substantial costs in preparing arguments.

The Hawke Review considered that "public interest proceeding" should be defined to mean a proceeding that:

  • raises issues of general public importance;
  • has prospects of success (in other words, rests on an arguable case); and
  • is instituted by a person or persons whose predominant purpose is to advance or protect a perceived interest, including a non-financial interest, of members of the public generally or a significant segment of the public.

If this recommendation is adopted by the Australian Government, we may see an increase in the instances of such public interest litigation; as this would represent a removal of some significant barriers to such litigation.


The Australian Government has not formally responded to the Final Report and therefore, it is not clear to what extent the Hawke Review's recommendations will be adopted.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Elisa de Wit
Felicity Rourke
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.