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.

Conclusions

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.