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Australia: A new national environment regulator

By 4 Mins Read

In brief

Draft discussion papers have been released outlining the purpose and functions of the new Commonwealth Environmental Protection Agency (EPA).

The EPA is to be established by way of new standalone legislation which we anticipate will be released in 2024. Other legislation (such as the new “nature positive” legislation, expected to replace the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act)) is to confer powers and responsibilities on the new EPA Chief Executive Officer (CEO).

Set out below is what we currently know about how the EPA is to operate, how that varies from current arrangements and what this means for the future of project environmental assessment in Australia.

Key takeaways

The EPA is to be responsible for:

  • Issuing permits and licenses
  • Project assessments, decisions and post-approvals
  • Education, compliance and enforcement
  • Assuring states, territories and other Commonwealth decision makers apply National Environmental Standards (also under development) under accredited arrangements

This means that, where a project requires a national environmental approval to proceed, project proponents will be:

  • Moving away from existing processes – which variously can involve dealing with and assessment by the Department of Climate Change, Energy, the Environment and Water and decisions being made by the Federal Environment Minister (Minister) (or her delegate)
  • Engaging with a new independent agency, which is to be: endorsed by specific legislation; have powers bestowed upon it from a variety of Acts; be accountable (through reporting and review requirements); and foreseeably, scrutinised for its enforcement activities

We will keep you updated with ongoing or future developments.

In more detail

Project assessment timeframes and a lack of compliance and enforcement actions has been a feature of EPBC Act criticism for some time.

The Samuel Review1 condemned many aspects of the EPBC Act and noted specifically that:

  • The EPBC Act is not trusted by industry – it is generally reviewed as cumbersome, duplicative and results in slow decision making.
  • Surveillance, compliance and enforcement under the EPBC Act has been weak and ineffective.
  • There has been limited enforcement of the EPBC Act over the 20 years of its operation, and the transparency of what has been done is limited.

The purpose of establishing the EPA has been described to include:

  • Enhancing the protection of Australia’s environment through a national environmental regulator
  • Preventing the degradation of the environment and reduce risks to human health
  • Delivering accountable, efficient, outcome-focused and transparent regulatory decision-making
  • Delivering proportionate and effective risk-based compliance and enforcement responses, including providing assurance that environmental outcomes are being met
  • Promoting public trust in environmental decision-making through the publication of information, transparency of decisions and providing opportunities for people to inform decision-making processes

While detail as to how the EPA will operate is to be provided in due course, the draft discussion paper proposes that:

  • Where a project proponent proposes to take an action that will have a significant impact on a protected matter, the application for approval will be made to the EPA.
  • The EPA will be regularly subject to a range of external reviews and audits to ensure that it is effective.
  • The EPA will also be subject to regular operational review by the Minister.
  • The EPA CEO (or delegate) will be required to consult with proponents on proposed decisions related to assessments and approvals before making those decisions – some decisions may also be subject to reconsideration, including where there has been a substantial change in circumstances not previously foreseen.

Ultimately, the success of the EPA in achieving its purpose – and improved industry satisfaction with federal environmental assessment processes – is likely to be directly proportional to the level of federal resourcing given to the EPA. If there is change is compliance and enforcement outcomes achieved by the EPA, those will largely depend upon whether the proposed legislation provides it with a full suite of fit-for purpose regulatory powers and tools.

1 Independent Review of the EPBC Act – Final Report, Professor Graeme Samuel AC, October 2020

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Author

Sebastian Busa is a partner in the Sydney office. Sebastian is a recommended real estate practitioner by Asia Pacific Legal500. He is also a Green Star Accredited Professional. This accreditation allows him to provide specialist property advice to clients on green lease provisions, agreement for leases, fitout arrangements and other development agreements where there is a green building and environmental issue. While working in the Firm’s London and Manila offices, Sebastian gained valuable offshore experience in the area of real estate and trust law.

Author

Anna Vella is a special counsel in our Environment and Climate Change group in Brisbane. With over 20 years of experience and substantial expertise in all aspects of environment and planning law, Anna has represented a number of high profile, blue chip, public and government clients in the delivery of infrastructure and major projects.

Author

Samuel is a Special Counsel in our Environment, Planning, and Climate Change practice in Sydney. He has concentrated on planning and environmental law for the last decade and has broad strategic experience ranging from litigation to advice and transactional matters. His practice includes both merits and judicial review appeals, dealing with regulators on environmental investigations and enforcement action, and negotiating with planning and other government authorities in relation to project approvals, modifications, and potential non-compliances. Before joining Baker McKenzie at the start of 2022, Samuel was a Senior Associate in the same field at a top tier law firm in Sydney.

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