EPBC ACT - THE CASE FOR REFORM

ANDREW MACINTOSH AND DEBRA WILKINSON

ABSTRACT:

This article examines whether the environmental assessment and approval ('EAA') regime of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('EPBC Act') has been effective and explores how it could be improved. It is argued that the EAA regime has failed to achieve any substantial environmental outcomes. This failure is due to a combination of the Federal Government's reluctance to enforce the Act, the lack of appropriate administrative infrastructure, structural flaws in the process, and possible constitutional limitations. Two areas of the EAA regime that require reform are discussed: the listing processes that relate to threatened species, threatened ecological communities and national and Commonwealth heritage places; and the provisions that apply to actions taken in the states and territories that could affect the matters of national environmental significance. It is argued that responsibility for the listing processes should be transferred from the relevant Minister to an independent statutory authority. In relation to the provisions that apply to actions taken in the states and territories, three possible options for reform are put forward: replacing the significant impact provisions with a call-in power; and adding a zoning process and call-in power to the existing provisions. All three offer advantages over the existing regime, but also suffer from a number of weaknesses. It is concluded that there is an urgent need for the EAA regime to be amended, but that this should only occur after these, and other options for reform, are appropriately debated.