Why the EPBC Act Does Not Need a Review, it Needs Replacing.
The Government announced last year a year-long review of the Environment Protection and Biodiversity Conservation (EPBC) Act of 2000, under the chair of Prof Graeme Samuels AC. The EPBC Act has mandatory 10-year reviews, so this was on time - or was until Covid-19 extended the timing slightly. To many, especially NGOs, the creation of the EPBC Act in 2000 was a highly significant and important development. For the first time there was one, supposedly strong, national Act for nature and the wider environment. But it was not that simple, as time began to show…
First, full disclosure: I have made a submission to the review, and that appears on the review’s web site along with others. But I felt that a blog exploring some elements might help broaden debate. Now for a little history to start.
The Australian constitution is clear on the division of responsibilities between commonwealth and State/territory administrations; especially regarding land, water, and wildlife issues. Equally it gives the Australian Government, under the Foreign Affairs Head of power, rights to intervene where Australia is a signatory to a convention, there are investment issues etc. Establishment of the Australian National Parks and Wildlife Service in 1975 allowed a platform for legislation (National Parks and Wildlife Act 1975) that enabled the Australian government to develop legally appropriate responses to international work under the Ramsar Convention on wetlands and the Convention on Migratory Species.
As the Convention on international trade in endangered species (CITES) developed in the 70’s and 80’s, a requirement of the convention was the mirroring, at a minimum in national legislation, CITES decisions – all of which were firmly associated with Trade, despite the apparent focus on conservation. This was done through the Wildlife Protection Act of 1982. And then there was the enquiry by Sir Sydney Frost into whaling that government accepted and crystallised it as the Whale Protection Act of 1980. In 1992 the Commonwealth Endangered Species Act was introduced, some aspects of which crossed or conflicted with the actions and activities already underway in several states and territories.
Thus, by mid-1990’s there were a range of acts covering aspects of biodiversity (nature) conservation, alongside existing legal instruments dealing with environmental protection. Without doubt, there was a clear case for some rationalisation, so when government changed in 1996 conditions were ripe for a change, with an Environment Minister with a legal bent and a senior team in the Department with strong legal skills. This team saw advantages in a “big-bang” single Act. Moving in the direction of bringing everything together in one omnibus act was also supported by several NGOs who, misunderstanding the constitution, saw this as a means of providing one Australia-wide national Act that would allow the Australian Government legal premacy over sub-national governments.
Thus, was born the EPBC Act, from a solid legal, but perhaps rather weak environmental, base. The National Parks and Wildlife Act (1975), along with the other three Acts mentioned above, were to be repealed. However, the NPWS Act had established the statutory role of Director whose legal person made agreements with the Traditional Owners of Kakadu and Uluru-Kata Tjuta National Parks, necessitating that role being maintained. This was solved by a First Assistant Secretary in the Department taking the role and the statutory responsibility, but this much diluted the effectiveness of the post, a situation that obtains today.
The 10-year review produced a raft of suggestions, some of which remain unconsidered. The current review is designed to do the mandatory 10-year check, but also try to make the Act more business-friendly. And here’s the rub – the whole Act tries to do too many things, and this in turn has caused frustration for business, and for environmental NGOs, both of whom see the needs of their constituencies not being well serviced. While rationalisation in the late 90’s was indeed needed among the existing Acts that had developed in random fashion (following equally random global actions), a large Act trying to include everything, with EPA matters as well, was not the answer. And so, currently, a health check and minor, or even major, adjustments to an ever-more creaking Act are also not the answer.
So, do I have a solution? Well, yes – the Act is about biological diversity in large measure, so diversity in approach should be the response. I argue the Act should be repealed and replaced with 3 new Acts:
- a Wildlife Conservation and Management Act;
- a Land- and Seascape Conservation and Management Act; and
- an Environment Protection Act.
These three Acts should be developed in close coordination with state and territory governments, under an overall “concordat” for managing Australia’s biodiversity, heritage and landscapes and ensuring environmental protection. These three areas would give more certainty to business and would be more agile in ensuring swift, clear, and appropriate legal responses to conservation matters as they arise (e.g. responding to last year’s bushfires.).
Will it happen? I’m not holding my breath, but maybe in 2030…..