Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
Chapter 4: Environmental Impact Assessment
Key points

Submissions and the public hearings for this review generally supported the concept of Environmental
Impact Assessment (EIA) occurring under the EPBC Act and many noted that the role of the Environment
Minister as the decision-maker is a significant improvement over the previous legislation.

There may be merit in considering a number of proposals to:
o
increase the referral of controlled actions;
o
improve the quality of referral and assessment documentation; and
o
allow for better disclosure of reasons for decisions.

The arrangements for EIA under the Act are quite prescriptive. There may be opportunities to simplify and
streamline the process.

The methods for assessment are generally appropriate, but it appears that there could be greater use of
public inquiries and panel-type arrangements.

There was a broad recognition that the EIA provisions of the Act needs to deal better with cumulative
impacts, although project-by-project assessment should remain a core feature of the Act.
EIA – project-by-project assessment
4.1
The EPBC Act sets up a traditional EIA regime in Parts 7, 8 and 9 of Act. under this regime individual
projects may be referred for approval. Through this process the referred action may be altered to
mitigate certain environmental impacts, conditions may be placed on the action to reduce
environmental impacts and other impacts may be offset. This traditional EIA regime is predicated on
project-by-project assessment. That is, the assessment is of the specific action that has been referred to
the Minister. There are provisions to ensure that the totality of an action has been referred, 1 but the
assessment and approval decision will only relate to that individual action. References in this chapter
to ‘EIA’ are to a process that operates on a project-by-project basis.
4.2
Part 10 of the EPBC Act (strategic assessments) and s.176 (bioregional plans) allow for a broader
perspective. These ‘landscape assessment’ mechanisms consider multiple actions within a region and
are generally made before specific actions have been conceived, let alone referred.
4.3
To date, EIA has been the primary focus of the Act with 2,696 actions referred as of 30 June 2008.
Comparatively, only five strategic assessments, other than for fisheries, have been commenced in that
same period.2 Further information on these broader approaches is in Chapter 10 of this report, Strategic
Assessment and Bioregional Planning.
4.4
Part 3 of the EPBC Act provides protection for a range of environmental matters. This chapter focuses
on the matters protected in Part 3, Division 1 of the Act and does not examine protection of the
environment from proposals involving the Commonwealth. Proposals involving the Commonwealth
will be examined further in the Final Report.
Referrals
Current provisions of the Act
4.5
1
2
A proponent who considers that a project may have a significant impact on a matter of National
Environmental Significance (NES) must refer that proposed action to the Environment Minister. The
onus for referring an action under the EPBC Act rests with the proponent of the proposed action.
Although some government agencies can request that a proposed action be referred, the public has no
right to refer matters, or to request that matters be considered for referral. The Department does
however run a compliance ‘hot line’ and actively seeks public notification of activities that might need
approval.
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.74A.
Of these five strategic assessments two were discontinued (offshore oil and gas actions and defence exercises) and three are currently in
progress.
4.6
The proponent is responsible for preparing the referral documentation. Once a referral has been
received, the Minister (or delegate) decides whether or not the matter is a ‘controlled action’ for the
purposes of the EPBC Act. A controlled action is one that is likely to have a significant impact on a
matter of NES under Part 3 of the EPBC Act.
4.7
Section 74(3) of the EPBC Act provides that as soon as practicable after receipt of a referral, the
Minister must cause the referral (and any supporting documentation) to be published on (The
Department of Environment, Water, Heritage and the Arts (DEWHA)) website. An invitation for the
public to comment on whether or not the proposed action should be determined to be a controlled
action is published with the referral. The public have 10 business days to make comment. The
Minister, in arriving at a decision, must consider any comments received.3
Key points raised in public submissions
4.8
Public submissions on referrals raised concerns relating to:

the number of referrals received;

the quality of referral information; and

the nature of the referral decision.
Referrals – number of referrals made
Key points raised in public submissions
4.9
Many of the submissions judged the success of the EPBC Act against the number of referrals made
under the Act, and claimed that many projects that should have been referred were ‘slipping through
the net’. Submissions drew attention to particular types of actions which are not being referred,
including agriculture,4 introduction of invasive species,5 and small projects.6 This issue is also reflected
in some commentary on the Act,7 and is worthy of further consideration.
4.10
The South Australian Chamber of Mines and Energy compared the high number of actions referred
with the much lower number of controlled action decisions, arguing that there are many unnecessary
referrals.8 This concern was noted by the Australian National Audit Office (ANAO) in its report
Referrals, Assessment and Approvals under the Environment Protection and Biodiversity Conservation
Act 1999.9 The Minerals Council of Australia submitted that the success of the Act should not be
measured by the number of referrals made10 – lower numbers of referrals may indicate fewer impacts
on protected matters. The corollary to this is that many proponents, particularly from mining, oil and
gas sectors appear to refer in order to gain certainty for their projects.
4.11
Some proponents seem to be referring projects as a risk minimisation strategy rather than because they
think there may be a significant impact on a matter of NES.
Amendments to the referral provisions
4.12
3
A number of submissions were critical of the reliance on self-referral of actions, suggesting that it
encouraged non-compliance. These submissions provided three potential methods for solving this
problem, by allowing third party referrals, by encouraging state and local government to refer actions,
or through regular auditing of projects. There were few comments on the Minister’s call-in powers.
The proposals for third party referrals included allowing ‘any interested party’, or ‘any member of the
community’ to refer.11 The issue of non-referral of actions is discussed further in Chapter 21 of this
report, Enforcement, Compliance, Monitoring and Audit.
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.75(1A).
Submission 164: Minerals Council of Australia.
5
Submission 166: Invasive Species Council (Australia).
6
Submission 156: The Australian Orchid Council.
7
Andrew Macintosh ‘Why the Environment Protection and Biodiversity Conservation Act’s referral, assessment and approval process is
failing to achieve its environmental objectives’ (2006) 21 Environment and Planning Law Journal 288.
8
Submission 111: South Australian Chamber of Mines and Energy.
9
Australian National Audit Office Audit Report No.38 of 2002-03, Referrals, Assessments and Approvals under the Environment Protection
and Biodiversity Conservation Act 1999.
10
Submission 164: Minerals Council of Australia.
11
It was suggested that the Western Australian Environment Protection Act 1986 (WA) provides an example of a viable system of third
party referrals.
4
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
Discussion of key points
4.13
Since commencement of the EPBC Act on 16 July 2000, until 30 June 2008, the Department has
received 2,696 referrals.
4.14
Over this period, 2,568 decisions have been made on referred proposed actions. Of these decisions:

603 actions were found to be controlled actions and required approval under the EPBC Act;

447 actions were found to be not a controlled action provided the action was taken in a particular
manner; and

1,518 actions were found to be not a controlled action and accordingly did not require approval
under the EPBC Act.
4.15
In addition, one action was found to be clearly unacceptable.
4.16
In the same period there were also:

74 referrals withdrawn or lapsed before a controlled action decision was made; and

147 referrals withdrawn or lapsed after a controlled action decision was made.
4.17
Early critiques of the EPBC Act analysed the success of the Act in terms of the number of actions
referred and the number of actions approved, claiming that a low number of ‘no’ decisions indicated
the Act was not effective in achieving positive environmental outcomes. 12 In these critiques it was also
argued that ‘the majority of actions that are having the greatest impact on the matters of national
environmental significance and Australia’s natural heritage are not being referred to the Minister under
the Act’13 and that the referral, assessment and approval process was ‘far from a cost effective means
of addressing key environmental issues’.14
4.18
The critical framework attributes success to a higher number of referrals and refusal decisions. It has
been suggested, however, that this analytical framework does not provide an accurate measure of the
outcomes of the EPBC Act and that other frameworks should be used to judge the Act’s success. 15 The
Senate Inquiry notes the difficulty in assessing the success of the Act through the number of refusal
decisions framework, suggesting that:
certainly, since the Act’s inception, a large number of proposed developments and activities have been assessed
by the department, and many conditions have been placed on particular projects. Others may not have proceeded
because of the impacts they would have had on the environment. On the other hand, very few projects have been
refused approval, and almost no prosecutions have been undertaken. 16
4.19
This analysis is discussed further when considering moving to an outcomes-based assessment of the
achievements of the Act in Chapter 2 of this report.
4.20
various reasons were suggested as to why actions were not being referred under the EPBC Act,
including:

lack of awareness of the Act;

an incorrect belief that approval under State legislation constituted approval under the EPBC Act;

the strong emphasis on self-referral;

a deliberate flouting of the Act encouraged by a perceived lack of enforcement for failure to refer
actions; and

the nature of the referral decision, in particular, the significant impact test, the definition of action
and the limited considerations for decision-makers.
See Andrew Macintosh ‘Why the Environment Protection and Biodiversity Conservation Act’s referral, assessment and approval process
is failing to achieve its environmental objectives’ (2006) 21 Environment and Planning Law Journal, p.288, as well as Andrew Macintosh
and Debra Wilkinson ‘EPBC Act – The Case For Reform’ (2005) 10(1) The Australasian Journal of Natural Resources Law and Policy,
p.139; Andrew Macintosh and Debra Wilkinson Environment Protection and Biodiversity Conservation Act: A Five Year Assessment Discussions Paper Number 81, (2005) The Australia Institute http://www.tai.org.au/documents/downloads/DP81.pdf at 5 June 2009.
13
Andrew Macintosh ‘Why the Environment Protection and Biodiversity Conservation Act’s referral, assessment and approval process is
failing to achieve its environmental objectives’ (2006) 21 Environment and Planning Law Journal, p.294.
14
Andrew Macintosh ‘Why the Environment Protection and Biodiversity Conservation Act’s referral, assessment and approval process is
failing to achieve its environmental objectives’ (2006) 21 Environment and Planning Law Journal, p.301.
15
Gerard Early ‘Australia’s National Environmental Legislation and Human/ Wildlife Interactions’ (2008) 11(2) Journal of International
Wildlife Law and Policy.
16
The Senate Standing Committee on Environment, Communications and the Arts, The operation of the Environment Protection and
Biodiversity Conservation Act 1999: First report (2009) http://www.aph.gov.au/senate/committee/eca_ctte/epbc_act/report/report.pdf at 4
May 2009, para [3.15].
12
Awareness
4.21
It was suggested that proponents were unaware of their responsibilities to refer actions – although the
extent to which this was genuine was questioned by the Australian Network of Environmental
Defender’s Offices (ANEDO).17
4.22
Attention must be given to raising awareness of the EPBC Act and the duty to refer actions. Awareness
is important for referrals, and its also the first pillar of the Department’s compliance and enforcement
policy. Raising awareness of the EPBC Act represents a threefold challenge, arising out of the
particular role of the Commonwealth, as follows:
4.23

geography: the distance between proponents and regulators under the EPBC regime, making it
harder to get the message across. The EPBC Act also must cover a wide range of activities over
many different landscape types;

emerging role: although the EPBC Act has been in force since 16 July 2000, the Commonwealth’s
role in EIA is not necessarily well known, especially when compared to the established reputation
of the States and Territories; and

niche: as the Commonwealth only protects certain environmental matters, proponents who engage
with State and Territory regulators may not previously have had significant impacts on matters of
NES and therefore may not have past experience with the EPBC Act.
Awareness is discussed in further detail below when considering public participation and EIA.
Definition of action
4.24
various submitters indicated that the definition of ‘action’ under the EPBC Act should be expanded or
clarified. It is noted that expansion of the definition of action may increase the number of referrals
received. The majority of submitters on this point wished to include government policies and
programs, authorisations and the awarding of grants within the definition of action under the Act. 18
Arguments supporting this change considered that previous government initiatives have resulted in
activities that had adverse impacts on matters of NES, and as such should be assessed under the EPBC
Act.
4.25
Several submitters also argued for specific inclusion of State and Local government planning, zoning
or re- zoning activities within the definition of action. 19 An alternative approach could be to subject
these plans to strategic assessments under the Act (rather than the project-by-project assessment
regime). The definition of action is addressed further in Chapter 3 of this report, Scope of
Environmental Impact Assessment under the EPBC Act.
Definition of significance
4.26
A large number of submissions were critical of the significant impact test, or sought greater clarity on
the application of the test. The criticisms suggest that significance does not capture the range of actions
that should appropriately fall under the EPBC Act, and the test does not operate well in practice as it is
overly subjective and does not allow for adequate consideration of cumulative impacts. It is also
suggested that the gate-keeping role of the significant impact test does not result in a sufficient number
of actions being referred for assessment and approval.
4.27
Several submissions requested a better explanation of the term ‘significant impact’ to clarify when
proponents need to refer and to ensure appropriate interpretation by decision-makers. The WWF
submitted that the current definition is too nebulous to allow agreement by experts in the field over
whether an impact is significant. The WWF also suggested that the significance test has opened the
Act to political interference and ‘it seems at times to have been used as a convenient source of
confusion whereby doubt is introduced into what might otherwise be unacceptable cases of clear-cut
environmental damage.’20 Other submissions agreed that the test is too broad, and confers too great a
discretion on decision-makers.
Submission 181: Australian Network of Environmental Defender’s Offices.
See e.g. Submission 027: Associate Professor Paul Adams; Submission 130: Centre for Aboriginal Economic Policy Research; and
Submission 041: Mr Stephen Burgess and Ms Elaine Bradley.
19
See e.g. Submission 035: Shoalhaven City Council.
20
Submission 181: WWF, p.33.
17
18
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
4.28
The test of significance or a similar threshold is a common concept in EIA regimes, 21 and is also a
relevant obligation under the Convention for Biological Diversity. 22 The test is used to stop the
regulatory regime from becoming unwieldy or unworkable, as without a threshold all impacts on
matters of NES would require assessment, which would be a significant expansion of the
Commonwealth mandate. It is appropriate to have some threshold for triggering Commonwealth
jurisdiction. It is notable that the significant impact test results in a range of projects that are referred,
from single houses to internationally important mining ventures. The important characteristic of the
EPBC Act over its predecessor is that the trigger is the matter protected not the project involved.
4.29
Clarification of the meaning of significance has proved difficult. The judicial interpretation of the term
as being ‘important or of consequence having regard to context or intensity’ 23 has not provided clarity
in all applications of the test.
4.30
One alternative approach to having a test based around significance would be to move to the regulation
of ‘designated projects’, such as construction of a dam of a specific size, as occurs in some State EIA
regimes. It would not be possible to generate a comprehensive ‘list’ of projects that the
Commonwealth should regulate, or a list that would reflect appropriately the Intergovernmental
Agreement on the Environment, so at the very least the test of significance would have to be retained to
catch actions which have not been designated.
4.31
It is unlikely that a better test than that of significance exists or could be developed. It is noteworthy
that none of the submissions made a serious recommendation on a revised definition. It is also doubtful
that adding more synonyms to the legislative definition would aid in interpretation. However, it is
possible that the application of the significance test could be simplified through prescribing mandatory
considerations or the use of further or more prescriptive guidelines.
4.32
An undertaking to issue significance guidelines is outlined in the Explanatory Memorandum to the
Act.24 The Explanatory Memorandum also outlines some factors to be included in these guidelines.
The intent of these guidelines is to aid the self-referral process, to give certainty for proponents and to
reduce the number of unnecessary referrals.
4.33
Submissions suggested that the guidelines do little to clarify the meaning of significance. Submitters
suggested a range of improvements to the guidelines including the use of examples of impacts that
would constitute a ‘significant impact’ on the different matters of national environmental significance,
and clearer and less legalistic definitions with scientific, objective thresholds. There was a division in
opinion over whether the significance guidelines should be generic or specific.
4.34
The Department has produced two sets of general significant impact guidelines Significant impact
guidelines – matters of national environmental significance25 and Significant impact guidelines –
actions on, or impacting upon, Commonwealth land and actions by Commonwealth agencies 26, as
well as industry-specific guidelines on offshore aquaculture 27 and offshore seismic operations28, and
draft regional specific guidelines for Magnetic Island 29.
4.35
The Department has also produced a range of more specific policy statements, including 10 finalised
statements for determining impacts on threatened species and ecological communities, and currently
has three draft statements out for public comment. The range of policy statements covers both specific
and generic types of impact. As the Department continues to develop further policy statements, the
significance of impacts on certain protected matters should be clarified through these instruments.
Examples that illustrate the boundary conditions for the concept of significance, in terms of spatial
extent, severity and kinds of impact would be a substantial improvement.
21
Similar tests are found in other jurisdictions, although the nature of the significance test varies. These other jurisdictions include
‘significant effect’ in New South Wales under the Environmental Planning and Assessment Act 1979 (NSW), ‘significant project’ in
Queensland under the State Development and Public Works Organisation Act 1971 (Qld) and ‘significant effect’ in Western Australia
under the Environment Protection Act 1986 (WA).
22
Parties must establish an EIA regime which assesses projects that will have ‘significant adverse effects on biological diversity’: the
Convention on Biological Diversity done at Rio de Janeiro on 5 June 1992 (Biodiversity Convention), Art 14(1)(a).
23
From Booth v Bosworth (2001) 114 FCR, para [39] (per Branson J). The operation of the test of significance is discussed further in Chris
McGrath ‘Key concepts of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)’ (2004) 22 Environment and
Planning Law Journal, pp.33-34.
24
Explanatory Memorandum, Environment Protection and Biodiversity Conservation Bill 1999, paras [24], [38], [50], [60] and [77].
25
Department of Environment and Heritage, Matters of National Environmental Significance Significant Impact Guidelines 1.1 (2006).
26
Actions on, or impacting upon, Commonwealth land and Actions by Commonwealth Agencies Significant Impact Guidelines 1.2,
Department of Environment and Heritage, 2006
27
Department of Environment and Heritage, EPBC Act Policy Statement 2.2 – Offshore aquaculture (2006).
28
DEWHA, EPBC Act Policy Statement 2.1– Offshore seismic guidelines (2008).
29
DEWHA, EPBC Policy Statement 5.1 – Magnetic Island, Queensland: draft policy statement (2008).
Third party referrals
4.36
Third party referrals have been proposed as a solution to the low number of referrals, and as another
pathway to bring actions that should be referred under the Act to the Department’s attention.
4.37
If a power for third party referrals were to be enacted than there would have to be safeguards against
vexatious or frivolous third party referrals. Safeguards may include a screening process, or a right of
reply. It would also be reasonable to have the person referring the proposal declare any conflicts of
interest to disallow improper third party referrals attempting to limit trade competition.
4.38
There may also be requirements for sufficient referral documentation and a need to prove to some
extent that the action will have a significant impact on one or more matters of NES. This information
may be difficult for third parties to source. In such cases there would be an onus on the Department to
gather the information; in doing this the Department may be frustrated by unwilling proponents.
4.39
The ANEDO submission notes that some State EIA processes already allow referrals by the
community, such as are provided for under the Western Australian Environment Protection Act 1986
(WA).30 In the absence of evidence of abuse of such a referral provision, there may be no need to
qualify a third party referral power, should it be created.
4.40
Third party referrals would at best complement the existing capacity for referral by State and Territory
agencies, and DEWHA’s compliance and enforcement of actions that are not referred. As noted above,
third parties have the capacity to complain to the Department about proposed actions which they
believe are likely to have a significant impact on a matter of NES. Subsequent Departmental
compliance proceedings often results in these actions being referred for assessment. 31 The issues
associated with the potential for poor or incorrect information supplied by third party referrals and the
lack of involvement of the proponents of an action would limit the value of these referrals.
Referrals – quality of referrals
Key points raised in public submissions
4.41
A number of submissions indicated that referral documentation supplied by proponents is sometimes
inadequate, contains incorrect information, or that the quality of referral documentation is highly
variable. However, submissions provided limited evidence of incorrect information found in referral
documentation to support these claims.
4.42
Some submissions suggested ways in which referral documentation could be improved, or types of
information that should be supplied by proponents. Friends of Grasslands highlighted the reliance on
referral documentation in many assessment processes, and consequently the need for accurate and high
quality information.32
4.43
Issues raised with referral documentation included that:
4.44

it may be inaccurate;

it is often at such a level of generality that it does not allow appropriate considerations of impacts;
and

it often lacks scientific rigour – examples were given of consultants undertaking surveys for
migratory species at times of the year when species were known to be absent from that site.
Several submissions suggested that referral documentation should only be provided by qualified
ecological consultants, or that these consultants could review the referral documentation. The
Environment Institute of Australia and New Zealand suggested that a system of accreditation of
environmental professionals may improve the quality of referral documents. 33
Senate inquiry into the operation of the EPBC Act
4.45
The Senate Inquiry into the operation of the EPBC Act also questioned the quality of referral
information. The Committee’s report suggested that:
Submission 189: Australian Network of Environmental Defender’s Offices.
In 2007– 08, 418 actions were referred to the Australian Government for a decision on whether approval was required under the EPBC
Act (347 in 2006– 07). Of these referrals, 34 were the result of compliance action taken by the Department (8 per cent compared to 15 per
cent in 2006– 07).
32
Submission 092: Friends of Grasslands.
33
Submission 087: Environment Institute of Australia and New Zealand.
30
31
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
there is a role for the department to investigate the accuracy of information provided to it where there is a
discrepancy between that provided by the proponent and that received during public comment. Given the limited
resources with which the department operates, the committee was unsure of the extent to which this takes
place.34
Discussion of key points
4.46
The quality of referral documentation is important in the assessment and approval processes. The
EPBC Act has both safeguards and incentives to encourage high quality referrals.
4.47
Safeguards include the offence provisions relating to the provision of false or misleading information
to an authorised officer,35 and the capacity to not accept referrals that are invalid due to failure to
include particular details. The Department has advised that, in the period July 2008 to December 2008,
236 referrals were received and processed by the Department. Of these referrals only 81 (34%)
contained enough information on receipt to be deemed valid without the need to request additional
information from proponents.
4.48
Incentives to produce high quality referrals include the capacity for a faster assessment method – by
referral documentation – or if the referral contains appropriate evidence of mitigation measures and
conditions, a circumnavigation of the approval requirements with a ‘not controlled action particular
manner decision’. An assessment officer may request information further to the referral documentation
to determine whether the action requires approval, if the action is part of a larger action or the
controlling provisions that should apply.
4.49
There will inevitably be some variation in the quality of referral documentation as proponents will
differ in their capacity to produce quality referrals. If the requirements of referral documentation were
too onerous, then it would potentially stop proponents from referring actions. It is also important that
any new requirement make more relevant information available, rather than simply produce longer
documents that do not aid decision-making.
4.50
Another serious issue is that there are no standards or guidelines that indicate a ‘sufficient’ extent or
quality of survey. Standards, guidelines, accreditation and audit would all improve the situation.
Referrals – nature of referral decision
Key points raised in public submissions
4.51
When making a controlled action decision, decision-makers currently cannot consider the beneficial
impacts of an action.36 Submissions challenged this limitation, arguing that an action may have
overwhelming environmental, social or economic benefits and, as such, will have a high likelihood of
not needing approval or of being approved.
Discussion of key points
4.52
Allowing consideration of beneficial impacts and offsets may also motivate proponents to present
well- considered and balanced proposals. Caution should however be exercised to avoid the screening
referral decision simply becoming a de facto assessment.
4.53
State regimes, such as New South Wales (NSW), are moving to a greater use of offsets and a
consideration of offsets early in the environmental assessment process. Consideration of offsets at an
early stage may not alleviate a significant impact on a matter of NES and so the EPBC Act would still
need to be triggered, no matter how sufficient the offsets would be. Allowing early consideration of
offsets would be therefore a significant change to the consideration of the value of matters of NES
under the EPBC Act. Further discussion of offsets as a mechanism of ‘last resort’ is discussed later in
this chapter.
4.54
The requirement that a person making a controlled action decision must not consider any beneficial
impacts of the action was intended to ensure that an action which has only positive environmental
impacts would not be caught by the Act. 37 If the early consideration of beneficial impacts were to be
allowed, the drafting of such a provision should also ensure that purely beneficial actions are not
caught by the EPBC Act.
34
Senate Committee Report, para [6.33].
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.491.
36
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.75(2).
37
Explanatory Memorandum, Environment Protection and Biodiversity Conservation Bill 1999, para [153].
35
4.55
An additional reason for limiting the consideration of beneficial impacts when making a controlled
action decision is that it is not appropriate to be weighing up various matters at that initial stage. The
controlled action decision is directed at determining jurisdiction, that is whether the EPBC Act applies.
Further assessment of the action subsequently occurs, and it is at the approvals stage where the
‘weighing up’ of various considerations should take place. As Heerey J noted in the Blue Wedges case:
The referral mechanism operates as a kind of triage system. It is not the function of the triage nurse to make a
detailed diagnosis, let alone prescribe treatment.38
4.56
The current regime carefully separates the question of the environmental impact from the judgment
about whether or not to accept the impact (that is, taking account of economic and social factors).
Assessments
Current provisions of the Act
4.57
4.58
If the Minister decides that an action is a controlled action, then the assessment and approval
provisions of the Act come into play. A number of assessment options are available under the Act. The
Minister decides which is the most appropriate, depending on the complexity of the project, the scale
and magnitude of potential and actual environmental impacts, the level of community interest, and
public submissions received in relation to the referral of the action. The alternatives include
assessment:

on referral information;

on preliminary documentation;

by public environmental report (PER);

by environmental impact statement (EIS);

by public inquiry; or

by an accredited Commonwealth or State or Territory process.
Each of these assessment processes has its own provisions under the Act, and in most instances the
public engagement process is different.
Assessment on referral information
4.59
under the assessment on referral information process, the Secretary for the Department prepares a draft
recommendation report including recommendations on whether the action should be approved and, if
so, any conditions that should attach to that approval. 39 The Secretary must publish the report on the
DEWHA website and invite public comment relating to the draft recommendation, report or action. 40
The timeframe for public comment is 10 business days.
4.60
Once the period for comment has expired, the Secretary must prepare a final recommendation report,
taking into account any comments received. This document is provided to the Minister, as well as a
copy of the comments received, or a statement that no comments have been received. 41 These
documents form the basis upon which the Minister makes an approval decision.
Assessment on preliminary documentation
4.61
There are two aspects to this type of assessment. The first is where further referral documentation is
received after the referral has been lodged and an assessment process decided upon42 and the second is
where the Minister seeks further information from the proponent relevant to assessing the relevant
impacts of the action, including information about strategies for mitigation of any adverse impacts. 43
4.62
The Minister gives the proponent a direction to publish all referral documents, including the additional
information (if requested) and to invite the public to make comment to the proponent relating to the
38
Blue Wedges v Minister for the Environment, Heritage & the Arts [2008] FCA 8, para [22] (per Heerey J).
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.93(2).
40
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.93(3).
41
Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss.93(4) and (5).
42
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.95.
43
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.95A.
39
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
information or to the action. The publication occurs on DEWHA’s website. The invitation to the public
to provide comment is ‘within the timeframe specified in the Ministerial direction’. 44
4.63
If public comments are received, the proponent must prepare a document that includes any changes or
additions needed to take into account the comments received, including a summary of the comments
and how those comments have been addressed. A copy of this revised document is provided to the
Minister45 together with a recommendation report prepared by the Secretary, similar to that referred to
in the previous section, for the Minister’s consideration. 46
4.64
The Minister has access to all of the documents referred to above in making a decision on approval.
This includes the public comments received as well as analysis of those comments.
Assessment by Public Environmental Report (PER)
4.65
Assessment by PER involves the Minister providing the proponent with guidelines for the preparation
of a draft PER.47 The proponent prepares a draft PER which is submitted to the Minister for approval
prior to its publication, by the proponent, on DEWHA’s website.
4.66
The notification includes an invitation for public comment on the report or action. The timeframe for
public comment is no less than 20 business days. 48
4.67
At the end of the period for public comment, the proponent must finalise the draft PER, taking into
account any comments received and including details of how these comments have been addressed.
The final PER is provided to the Minister with either a copy of the comments received, or a statement
that no comments have been received.49 The Secretary provides a recommendation report to assist the
Minister in making a decision about the action. 50
4.68
Again, all available information is provided to the Minister for consideration when making the
approval decision, including the revised PER which takes into account public comments, as well as the
comments themselves.
Assessment by Environmental Impact Statement (EIS)
4.69
The process and timeframes relating to the EIS process are identical to the PER process. For ease of
reference, the provisions of the EPBC Act relevant to the EIA assessment process are footnoted
below.51
Assessment by Public Inquiry
4.70
Assessment by Public Inquiry involves the Minister appointing a Commission to carry out an inquiry
into the impacts of an action.52 The Minister must write to the Commissioner/s and specify the matters
that are to be the subject of the inquiry (including the impacts of the action on which the Commission
must report) and the period within which the Commission must report back to the Minister. 53 The Act
is flexible as to the manner in which the inquiry may be undertaken.
4.71
Commissioners have a broad range of powers, including the power to call witnesses, obtain documents
and inspect places for the purposes of their inquiry.
4.72
Commissioners must report to the Minister within the specified timeframes, and then publish their
report.
Timelines for Assessments
4.73
44
The statutory timelines for each assessment method, including the periods for public comment, are set
out in the table below
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.95A(3).
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.95(1).
46
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.95C.
47
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.96A.
48
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.98.
49
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.99.
50
Environment Protection and Biodiversity Conservation Act 1999 (Cth), s.100.
51
Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss.101-104.
52
The public inquiry process is set out in Environment Protection and Biodiversity Conservation Act 1999 (Cth), Division 7 of Part 8.
53
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.107.
45
Assessments and Approvals
Controlled action decision [s75]
20 business days from receipt of referral.
Assessment approach decision [s87]
Clearly unacceptable decision [74B]
Assessment on referral information [s93]
recommendation report to be provided to the Minister
within 30 business days of the assessment approach
decision [s87].
Timeframe for preparation of assessment
guidelines:
20 business days after the assessment approach
decision or the invitation to comment period.

PER [s96A(4)]
 comment
EIS [s101A(4)]
Public
periods:

Assessment on referral information
[s93(3)]

Preliminary documentation [s95(2)]

PER [s98(3)]

EIS [s103(3)]

10 business days.

period specified by the Minister (not less than
10 business days).

period specified by the Minister (no less than
20 business days).

period specified by the Minister (no less than
20 business days).
Approval decision [s130(1)]:
4.74

Referral information

20 business days.

Assessment report from an accredited
assessment or bilateral

30 business days.

Preliminary documentation

40 business days.

PER

40 business days.

EIS

40 business days.

Inquiry

40 business days.
statutory timeframes for assessment methods under the EPBC Act.
Key points raised in public submissions
4.75
The success of the operation of the EIA provisions of the EPBC Act, and the subsequent decisions
made under these provisions, is dependent on the quality of information supplied and the quality
assessments undertaken. Submitters indicated:

a potential need for a quality control mechanism to evaluate assessments;

concerns about assessment methods;

concerns about the quality of assessments made under bilateral agreements;

concerns about State and Commonwealth duplication;

issues relating to the process of assessment, including the capacity to withdraw and resubmit
proposals, the capacity to change the scope of the referral during the assessment phase and the
interim protection for matters while they are being assessed;

a desire to move to a risk-based assessment model;

the possibility of self-assessment;

concerns about the role of consultants and use of expert reports; and

the possibility of introducing additional considerations into EIA decision-making.
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
Assessments – quality of assessments
Key points raised in public submissions
4.76
Concerns were expressed about the quality of some of the environmental impact assessments made
under the EPBC Act. There was a general concern about the procedural rigour, transparency, scope and
scientific quality of particular assessments. The Senate Inquiry indicated that ‘case studies were
provided to the committee that suggested deficiencies in project assessments under the Act.’54
4.77
The ANEDO noted that it had ‘come across both good and bad assessments under the Act’. 55 For the
ANEDO this highlighted ‘the importance of public consultation as a means of identifying impacts that
have been overlooked in assessments conducted by proponents.’56
4.78
Other submissions provided other potential quality-control measures that could be applied, including
rules to ensure assessments were done at arm’s length from the proponent, peer reviews of
assessments, review of assessments by expert panels, and the use of a standard method for assessment.
Discussion of key points
4.79
Although not a major issue, it was noted in some submissions and public hearings that the quality of
assessment depended on the experience and qualifications of Departmental staff. Santos submitted that
the operation of the Act will be strengthened by assessment officers with specific industry knowledge
– a view endorsed by the Minerals Council of Australia. 57 The Secretary of the Department responded
to similar concerns raised in the Senate Inquiry.58 The Secretary notes the range of skill sets
Departmental officers have and describes continuing education programs. The Secretary further notes
that where the Department lacks necessary expertise particular to an action then external consultants
are engaged.
4.80
Education and support of assessment officers must be a continuing area of interest for the Department
as information changes and new methods of best practice for impact assessment are developed. In any
regulatory system it is important that high standards of professionalism are maintained and that there is
appropriate skills development and training. It is noted that the Department undertakes training for new
assessment officers and creates institutional practice notes to create consistency of decision-making.
Without casting doubt on the professionalism of DEWHA officers, it is imperative for all regulatory
agencies to maintain a high standard of officer training.
4.81
Options for improving the quality of assessments made under the Act include accreditation of
consultants and allowing for public scrutiny of decisions – both of which are discussed in further detail
in this chapter.
4.82
Two other options for improving the quality of assessments may be through the creation of a public
fund for assessments as occurs in the Netherlands, or regular auditing and verification of the outcomes
of the assessment and the testing of predictions relied upon in EIAs. These options both warrant further
consideration.
Scope of assessments
4.83
Major projects are often assessed through a limited environmental lens by the Commonwealth because
of the specific nature of the matters of NES protected under the EPBC Act. It is commonplace for a
major project to be assessed in terms of its impact on one or two threatened species. This may not be
an issue when concurrent State assessment processes operate adequately to address a wide range of
environmental matters, but presents problems when the State process is limited in its assessment.
4.84
An option to address this issue may be in allowing the Minister to subject the proposed action to EIA
at a Commonwealth level, addressing all environmental impacts. This power could be directed at
projects which in the opinion of the Minister raise environmentally significant issues of national or
international importance. This proposal raises issues about an appropriate test to determine if a State
process was found wanting, or if an issue is of national or international importance. This issue is also
addressed in Chapter 3 of this report, Scope of Environmental Impact Assessment under the EPBC
Act.
54
Senate Committee Report, par [3.25].
Submission 189: Australian Network of Environmental Defender’s Offices, p.30.
56
Submission 189: Australian Network of Environmental Defender’s Offices, p.30.
57
Submission 067: Santos; and Submission 164: Minerals Council of Australia.
58
Senate Inquiry into the operation of the EPBC Act, Letter from the Department of the Environment, Water, Heritage and the Arts dated 14
November 2008, available at http://www.aph.gov.au/senate/committee/eca_ctte/epbc_act/submissions/sublist.htm, at 10 April 2009.
55
Assessments – assessment methods
Key points raised in public submissions
4.85
Public submissions contended that some assessment methods are underutilised, such as assessment by
public inquiry or assessment by EIS. Additional criticism was levelled at the use of assessment by
referral documentation or accredited assessment, because of the limited information requirements. 59
The ANEDO indicated that it does not matter which assessment approach is taken, as long as the
process is comprehensive and includes strong public consultation. The ANEDO further submitted that,
with the finalisation of bilateral agreements with all States and Territories, assessment provisions
under the EPBC Act will become redundant.60
4.86
Several submissions called for more criteria, prescribed minimum standards or guidance on the
requirements of each form of assessment. Suggested criteria or guidance were the inclusion of social
and economic matters in the guidelines for all PERs, proper ecological surveys, and mandatory peer
review of assessments.
Discussion of key points
4.87
The Act is already very prescriptive as to types of assessment methods, allowing for five types of
assessments, including by referral information, preliminary documentation, PER, EIS or Public
Inquiry. The general premise is that these five types of assessment form a hierarchy which is meant to
result in greater scrutiny being given to projects which constitute greater environmental risks. Hence,
the choice of the level of assessment does matter, although there is a question as to whether the range
of assessment methods currently available is necessary.
4.88
A range of issues are associated with making assessment methods increasingly prescriptive. The first is
a concern that this will increase the complexity of the process. The second is that by specifying the
criteria for the assessment method, the Commonwealth process will be differentiated from State and
Territory assessment processes and this will reduce the capacity for streamlining and accreditation. The
key question to be answered when considering whether to make assessment methods more prescriptive
is, would it achieve better environmental outcomes? The Senate Committee’s report also included
Additional Comments from the Australian Greens. In their additional comments, the Australian Greens
raised concerns about a ‘box-ticking approach’ taken to environmental assessment. 61 More prescriptive
assessment criteria may merely lead to a greater number of boxes to tick, and subsequent delays in
assessment.
4.89
Other jurisdictions, such as victoria and Canada, use assessment by independent panels to assess
certain projects. Panels may be particularly beneficial in highly controversial projects with multiple
stakeholders. Although the EPBC Act provides for assessment by Public Inquiry, this provision has not
been used. The reasons behind the limited use of panels under the EPBC Act and mechanisms for
invoking this process should be explored further.
4.90
An alternative assessment process, discussed in Chapter 19 of this report, is for the assessments to be
carried out by an independent environmental agency, along the lines of the Environmental Protection
Agency in Western Australia.
Assessments – assessments under bilateral agreements
Key points raised in public submissions
4.91
There were two key concerns raised in submissions on both bilateral agreements and accredited
assessments. First, that assessments made under bilateral agreements were less rigorous and of a lower
standard than assessments completed under Part 8 of the EPBC Act. The second relates to the potential
for bias where there is bilateral agreement assessment of an action strongly associated with the relevant
State government. This issue was also regularly raised during public hearings for this review.
4.92
Submissions were concerned that the bilateral agreements simply encouraged accreditation of the
process that was the ‘lowest common denominator’. The ANEDO posited that the success of
59
60
61
Submission 161: National Parks Australia Council.
Submission 189: Australian Network of Environmental Defender’s Offices.
Senate Committee Report, Additional comments by the Australian Greens.
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
assessment bilateral agreements is contingent on the quality of the process they accredit. 62 Community
sectors contended that State assessment regimes were frequently inferior to EPBC Act processes.
4.93
4.94
Issues raised with accredited State processes included:

concerns that some State jurisdictions can approve an action before the assessment of impacts of
matters of NES is complete – this limits the Australian Government’s capacity to place conditions
on the project;

concerns that the assessments in some jurisdictions are conducted by the infrastructure and
development agencies and not the environmental agencies, and therefore have a pro-development
bias; and

concerns that State assessment processes may not have key steps, such as sufficient public
comment periods, which are seen as deficiencies in the assessment process.
A number of submissions were generally supportive of bilateral agreements, but did not support the
use for assessment of State government affiliated projects. 63 The submitter’s rationale is that a State
agency assessing a State government project may be prone to bias and may understate the
environmental impacts of a project, overstate the effects of mitigation, offsets and conditions, and be
insensitive to public comments. The Government of South Australia argued conversely that specific
process for the assessment of State infrastructure activities should be accredited under the EPBC Act. 64
Senate inquiry into the operation of the EPBC Act
4.95
The Senate Committee’s report raised concerns about the quality of assessments completed under
assessment bilateral agreements. The Senate Committee’s report recommended:
that the Independent Review of the EPBC Act and/or the ANAO examine the effect of existing bilateral
agreements on the quality of environmental assessments of matters of NES. The committee suggests that
particular regard be given to the transparency of, public engagement in, and appeal rights in relation to
assessments performed under a bilateral agreement, compared to the conditions that would have existed had the
assessment been performed under the EPBC Act.65
4.96
The Senate Committee’s report was particularly critical of the administration of the bilateral agreement
between the Commonwealth and NSW.
Discussion of key points
4.97
To be accredited under an assessment bilateral, the State and Territory assessment processes were
required to meet benchmarks set out in EPBC Regulations. 66 These included requirements for public
access and public comment, as well as the accreditation of assessment approaches taken to correspond
to assessment approaches available under the EPBC Act. Agreement on assessment bilateral
agreements was delayed in some jurisdictions while State Acts were amended to meet the appropriate
standard. As Professor Rob Fowler has observed, a key goal was ‘to achieve an improved quality of
EIA process at the State level via the accreditation process, by requiring changes where necessary to
State processes as a condition of their accreditation’. 67
4.98
Concerns have been raised with State assessment processes that have been accredited through bilateral
agreements. For example, Professor David Farrier has written of the Commonwealth’s accreditation of
Part 3A of the NSW Environmental Planning and Assessment Act:
In spite of the fact that the form and extent of environmental assessment under Pt 3A lies entirely within the
discretion of the Director-General, the Commonwealth now treats Pt 3A as the equivalent of assessment by
environmental impact statement under the Commonwealth legislation, and this is taken to be an assessment ‘to
the greatest extent practicable’.68
4.99
Concerns with accreditation of NSW’s legislation were also raised in the Senate Committee’s report,
which stated that:
Submission 189: Australian Network of Environmental Defender’s Offices.
See e.g. Submission 041: Mr Stephen Burgess and Ms Elaine Bradley.
64
Submission 199: Government of South Australia.
65
Senate Committee Report, Recommendation 6.
66
Environmental Protection and Biodiversity Conservation Regulations 2000 (Cth) Part 3.
67
Rob Fowler ‘South Australia and the Penola Pulp Mill ’ in Tim Bonyhady & Andrew Macintosh (eds), Mines, Mills and Other
Controversies, forthcoming.
68
David Farrier ‘The Limits of Judicial Review: Anvil Hill in the Land and Environment Court’, in Tim Bonyhady & Peter Christoff (eds),
Climate Law in Australia (2007) pp.204-5.
62
63
It appears that Part 3A of the NSW legislation creates higher levels of discretion again, particularly in regard to
public consultation processes.69
4.100
In similar vein, Professor Fowler has stated that the Commonwealth has accredited the South
Australian system even though it is weaker than that of the Commonwealth – notably excluding
judicial review which the EPBC Act allows. 70
4.101
These criticisms of accredited State processes do not recognise that the concerns they have with the
State legislation do not flow through to the EPBC Act decisions. For example, although the South
Australian Development Act 1993 excludes judicial review of decisions made under that Act at a State
level, approval decisions made under the EPBC Act from projects assessed under that bilateral are still
reviewable under the Administrative Decisions (Judicial Review) Act 1977. Another example is that
assessments made under the NSW bilateral agreement that have not undertaken the requisite public
consultation are not accepted for the purpose of the EPBC Act. Additionally, under the Act the
Commonwealth Environment Minister maintains the capacity to request further information if the
Minister thinks that the assessment does not provide enough information to make an informed decision
– in this way the risk of a poor process ultimately rests with the proponent.
4.102
Assessment bilateral agreements may have resulted in the improvement of some State processes, but
they have not brought all processes to a similar standard. In this regard they may have failed to meet
some of their original promise. A separate question is whether the Commonwealth should be able to
require State legislation to comply with certain national benchmarks.
4.103
The quality of accredited State processes is clearly an issue if approvals bilateral agreements are ever
to be a reality. One appropriate method to improve these agreements may be through development of a
national standard for EIA through a forum such as Council of Australian Government (COAG).
4.104
It is important to ensure that bilateral agreements only accredit high quality processes. This highlights
the need for the Commonwealth to regularly review these agreements.
Assessments – flexibility of assessments
4.105
Submissions considered the flexibility of the assessment provisions by reference to:

the capacity to change the scope of a project during its assessment; and

the capacity for withdrawal and re-referral of a project.
Current provisions of the Act
4.106
Section 170C of the EPBC Act permits a proponent who has referred a proposal for a controlled action
decision to withdraw that referral at any time prior to an approval decision being made. In that
instance, the Minister must publish notice of the withdrawal (on DEWHA’s website).
4.107
Once a referral is withdrawn, decisions already made in relation to actions being controlled actions, the
assessment process and penalties that can apply if actions are undertaken while the project is under
assessment cease to apply. In practical terms, this means that a proponent may refer their proposal
again and the process will begin anew.
4.108
This re-commencement of the referral and assessment process was viewed by submitters as having a
strategic value to proponents and it was considered that a proponent should not have an unlimited right
to re-refer a proposal in circumstances when a referral has previously been withdrawn.
Key points raised in public submissions
4.109
69
70
Some community groups were concerned about the capacity for projects to be changed after they have
been referred. On the other hand it is clear, from the public hearings for this review, that industry is
concerned that an inflexible process would be counter-productive. On a similar note the Government
of South Australia suggested that there should be a capacity to change the method of assessment if new
information comes to light indicating a need for greater or lesser assessment.
Senate Committee Report, para [4.17].
Rob Fowler ‘South Australia and the Penola Pulp Mill ’ in Tim Bonyhady & Andrew Macintosh (eds), Mines, Mills and Other
Controversies, forthcoming.
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
Senate inquiry into the operation of the EPBC Act
4.110
Senate submissions were concerned about the potential for proponents to withdraw and resubmit the
same proposal, with the hope to gain a more favourable assessment method. The Senate Committee’s
report suggests that:
limiting a proponent’s ability to withdraw and re-refer a project warrants some consideration. Appropriate
limitations on a proponent’s right to withdraw and re-refer a proposal would prevent the proponent from seeking
a strategic advantage whereby their proposal can avoid rigorous scrutiny under the Act.71
4.111
The Senate Committee’s report also notes that a possible limitation would be to stop a project that was
‘substantially the same’ from being re-referred.
Discussion of key points
4.112
The assessment and approval process under the EPBC Act is very prescriptive.
4.113
The capacity to informally change the scope of a referred project during assessment was raised in the
Blue Wedges Case, where the Federal Court confirmed that proposed actions referred under the EPBC
Act can change between the referral and assessment stages, as the project evolves, without the EIA
process having to start again.72
4.114
There is logic behind allowing projects to change over the course of assessment, as this change can be
a part of mitigation measures and conditions to avoid adverse environmental impacts. If the scope and
nature of a project could not change, than the environmental outcomes of the EPBC Act would be
limited. As Heerey J noted in the Blue Wedges case:
The function of the referral step is not to fix in stone all the details of a proposed ‘action’ for the subsequent
approval process. Rather, this mechanism results in the proposal either being brought within the Environment
Act assessment and approval regime, or being exempted from the requirements of assessment and approval
under the Act.73
4.115
The key question is what changes should be allowed — and what changes are so great that the process
should have to start again. In the Blue Wedges case, Heerey J looked at how the action was described
in the referral documentation. It had been described as a project ‘to deepen the shipping channels at
Port Phillip Heads, in Port Phillip Bay and the yarra River and its approaching channels’; the way in
which the project had changed since referral was examined. In this case, Heerey J found that the
project continued to be one for channel- deepening and held that it remained the same action.74
4.116
While this finding may be correct as a matter of law, it is arguably unfortunate as a matter of policy —
a change resulting in what is likely to be significantly different adverse environmental impact should
mean that the project is not regarded as the ‘same action’. Procedural benefits, such as capacity for
public comment on the changed action would arise if such projects required re-referral.
4.117
Within this context, there is a question about s.156A of the Act. This provision, which was introduced
as part of the 2006 amendments to the Act, provides a process for a proponent of a controlled action to
seek changes to their referral. The Explanatory Memorandum to the 2006 Bill stated that it enables:
a person who has referred an action to the Minister for assessment and approval to request the Minister to accept
a variation to the action. ... The purpose of this amendment is to provide greater flexibility for dealing with
changes during the assessment process by providing a formal process for the variation of proposed actions. 75
4.118
An issue is whether or not the changed impacts are fully assessed. Accordingly, the power contained in
this section should be examined to make sure it cannot be abused. Otherwise, there may in fact be a
capacity to introduce more adaptive processes into the EPBC Act assessment.
Assessments – consultants and expert reports
Key points raised in public submissions
4.119
71
An range of submitters commented on the use of consultants and consultant’s reports during the
assessment of an action. The predominant concern was that consultants may not be suitably qualified
to conduct EIAs, or that they may be financially beholden to the proponent, and as such will produce a
Senate Committee Report, para [6.20].
Blue Wedges v Minister for the Environment, Heritage & the Arts [2008] FCA 8.
73
Blue Wedges v Minister for the Environment, Heritage & the Arts [2008] FCA 8, para [22] (per Heerey J).
74
Blue Wedges v Minister for the Environment, Heritage & the Arts [2008] FCA 8, para [59] (per Heerey J).
75
Explanatory Memorandum, Environment and Heritage Legislation Amendment Act 2006, para [151].
72
favourable or biased report which does not reflect the extent of environmental impacts. Options for
reducing biases and improving the quality of assessment documentation include developing:
4.120

an accreditation process for consultants;

a mandatory reporting requirement, similar to that of medical practitioners’ reporting of child
abuse, where consultants must declare knowledge of illegal environmental impacts; 76

prescription of minimum standards in EIS; and

a system where proponents would place money in a trust administered by the Department, who
would then hire consultants to produce environmental assessments; or a similar public fund for
impact assessment.77
The National Parks Australia Council contends that all documents relevant to the EIA process should
be publicly available on the Department’s website, including consultants’ reports, to increase the
transparency of decision-making.
Discussion of key points
4.121
The proposal to accredit consultants that could make referrals under the EPBC Act initially appears
attractive, but there are serious issues with how the accreditation would work in practice. Issues relate
to the types of professionals that could be accredited, recognising that ‘environmental consultants’
includes a wide field of professions. There are also concerns about the potential restrictions on trade
that an accrediting body could create. This idea needs to be examined further.
4.122
It is noted that publishing documents would provide for greater transparency of the assessment
process. However, concerns have been raised about the implications for reports which contain
commercial-in-confidence or other sensitive information, and it is uncertain whether these documents
should be subject to publication. This is further discussed later in this chapter.
Assessments – additional considerations
4.123
Public submissions and commentary in the Senate Committee’s report considered decision-making in
general, but there were also a number of suggested additional considerations for EIA decision-making.
4.124
The five most prominently expressed new required considerations for approvals decisions were:

consideration of alternative actions – that is, are there less environmentally damaging actions
which would produce the same result;

consideration of the effects of climate change;

greater consideration of biodiversity protection measures, for example key threatening processes,
recovery plans and threat abatement plans;

consideration of social and economic matters; and

greater consideration of public comments.
Alternatives
4.125
Several submissions suggested there should be greater consideration of alternatives to a proposed
action. They contend that there is no onus on a proponent to give a comprehensive analysis of
alternatives, nor is there a requirement for the Minister to complete such an analysis in a consistent and
transparent way. Suggestions for reform included an explicit requirement that a decision-maker
consider the alternatives to a proposed action (such as alternative actions that would achieve the same
result, or alternative sites for a proposed action) when deciding if a proposed action should be
approved under the EPBC Act.
4.126
The consideration of alternatives already occurs as part of the decision on whether the impacts of a
proposed action are acceptable, and therefore whether it should be approved. It is noted that this
decision is not explicitly provided for in the text of the legislation.
76
77
Confidential submission.
Submission 72: Lyndon Devantier.
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
Climate change
4.127
A number of submissions indicated that there should be mandatory consideration of climate change
adaptation and mitigation measures. This issue is discussed further in Chapter 8 of this report, Climate
Change.
Biodiversity protection measures
4.128
When deciding whether or not to approve an action that will have a significant impact on a listed
threatened species or ecological community, the decision-maker must not act inconsistently with a
recovery plan or threat abatement plan. 78 The decision-maker must also have regard to any approved
conservation advice for the species or community when deciding whether to approve the action. 79
4.129
Submissions suggested that greater consideration of biodiversity protection measures needed to be
taken when making decisions under the approvals and assessment provisions of the EPBC Act. It is
further suggested that biodiversity protection mechanisms do not adequately fetter the Minister’s
discretion in deciding whether or not to approve an action. Decision-making would likely be improved
by better integration of listed key threatening processes, threat abatement plans, recovery plans and
registered critical habitat. However, it should be recognised that the purpose of biodiversity protection
mechanisms is not just to guide decision-making, but also to co- ordinate recovery actions and funding.
Social and economic matters
4.130
When making an approval decision, the decision-maker must consider economic and social matters. 80
4.131
Submissions varied strongly on the extent to which these matters should be considered, with some
concerned that decision-making did not adequately consider the adverse social and economic costs of a
project, whereas others believed that the economic benefits, such as jobs created, often trumped
environmental considerations. There was a concern that the Environment Department, or environment
legislation, may not be able to consider social and economic matters adequately. Furthermore, it was
argued that economic and social factors should not be relevant when determining if an action is likely
to have an adverse impact on a matter of NES.
4.132
There appears to be some confusion surrounding the consideration of social and economic matters and
the weight they are given in decision-making. Policy guidance, or perhaps criteria in the legislation on
what these matters include and how they should be weighted may be required.
4.133
The social and economic matters which may be taken into account when making an approval decision
are very broad. The Minister is not restricted to considering the social and economic impacts of the
action in isolation and can weigh the benefits and disadvantages of the particular project against
broader social and economic considerations. The relevant social and economic matters will depend on
the circumstances of the particular action.
4.134
The EPBC Act does not prescribe the relative weight which should be attached to social and economic
matters and it is therefore within the Minister’s discretion to weigh these matters as the Minister sees
appropriate. Positive and negative, as well as long-term and short-term social and economic matters
can be taken into account.
Public comments
4.135
Submissions also contended that there is a need to improve the capacity for public comment and a
greater consideration of information received in public comments. This is discussed below at 4.18 of
this chapter.
Use of environmental management plans
4.136
78
79
80
Environmental management plans are often stipulated as a condition of approval for a project. These
plans establish strategies and management actions which are designed to avoid and minimise the
impacts of a project on matters of NES. Management plans often provide for the monitoring and
auditing of environmental impacts.
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.139(1)(b).
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.139(2).
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.136(1)(b).
4.137
As a matter of principle, EIA is meant to ensure that the environmental consequences of a project are
investigated and taken into account before a project approval decision is made. If a threshold decision
is taken that no unacceptable impacts are likely, most EIA regimes allow for the approval of
subsequent management plans setting out the precise mechanisms for achieving that outcome. The
resolution of details around management strategies and the development of management plans can
contribute substantially to a timely and efficient decision-making process.
4.138
It has been argued however that, in some cases under the EPBC Act, there has been insufficient
information about the relevant environmental impacts required to make a decision at the time an
approval was given.81 In other words, the investigation of significant environmental issues was
inappropriately left until after the approval was given, with the environmental management plan
applied as a condition of project approval to discover, rather than to mitigate, adverse impacts.
4.139
This issue was tested in the recent case about the Gunns Pulp Mill. 82 It was argued that:
the Minister was seeking, by the imposition of conditions, to obtain knowledge of the impact of the discharge of
effluent and that, without this knowledge, it was not possible for him to impose the conditions in the first
place.83
4.140
In this case the argument was rejected even though Tracey J considered there was scientific uncertainty
about likely environmental impacts. He held that, despite the lack of scientific certainty, there was
sufficient information to enable the Minister to conclude that the likely impact would be acceptable
subject to the conditions (including the need for an environmental management plan) the Minister
ultimately adopted.84
4.141
It is, of course, extremely important to have sufficient information to make an approval decision at the
time that decision is made. Conditions attached to an approval may be varied if the action turns out to
have a significant impact on a relevant protected matter that was not identified in the assessment 85 but,
should that situation occur as a result of a flawed assessment and approval process, that would be a
very unsatisfactory outcome. The objectives should be to ensure all primary issues are resolved in the
approval, with only secondary issues left to detailed management planning.
Assessments – risk-based assessment and self-assessment
Key points raised in public submissions
4.142
A range of industry submitters and the Invasive Species Council suggested that the EPBC Act should
move to a risk-based method of environmental assessment —where the extent of investigation or
assessment effort is proportionate to the risk of large adverse environmental impacts. 86
4.143
Another possibility that was proposed is limiting Commonwealth involvement to high risk projects,
while State and Territory governments assess low risk projects. Although the term ‘risk ’ (a product of
likelihood and consequence) was used in the initial proposal, the term ‘consequence’ is considered
more appropriate, as many of these situations will be low probability-high consequence scenarios.
4.144
A concern with risk-based approaches to assessment is that the information needed to determine the
level of risk is often gathered throughout the assessment process. As such an accurate up-front
determination of risk, and subsequent allocation of assessment method, may be hard to achieve in
practice.
4.145
A further option that was suggested as a possible means for reducing regulatory burden was ‘selfassessment’ of projects, whereby proponents assess their own actions against established guidelines.
The income tax framework was provided as an example of a comparable self-assessment model.
Strong oversight of these assessments would be required to ensure adequate assessment is undertaken
–indeed the level of oversight required might need to be such that the overall effect would not reduce
the Departmental workload, but may merely shift the priorities to monitoring and auditing of
completed self-assessments.
81
Submission 055: Conservation Council (ACT Region).
Lawyers for Forests v Minister for the Environment [2009] FCA 330.
83
Lawyers for Forests v Minister for the Environment [2009] FCA 330, para [22] (per Tracey J).
84
Lawyers for Forests v Minister for the Environment [2009] FCA 330, para [26] (per Tracey J).
85
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.143(1)(b).
86
Submission 164: Minerals Council of Australia; and Submission 166: Invasive Species Council.
82
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
Are assessments producing the right outcomes?
Current provisions of the Act
4.146
At the completion of the assessment phase, the Minister must decide whether or not to approve the
proposed action. The options available for an approval decision include to:

approve the proposed action;

approve the action subject to conditions (necessary or convenient for protecting, mitigating or
repairing damage to relevant protected matters); or

not approve the action.
4.147
Section 131A of the EPBC Act provides that before the Minister decides whether or not to approve the
taking of an action and what conditions (if any) should be attached to an approval, the Minister may
publish the proposed decision and conditions, if any, on the DEWHA website and invite public
comment on the proposed decision and any conditions. The timeframe for public comment under this
section is 10 business days.
4.148
Section 134 sets out the types of approval conditions that the Minister may attach to an approval
decision. It stipulates that the conditions must be necessary or convenient for the protection,
mitigation, or repair of matters of NES.
4.149
A core part of the EIA process under the EPBC Act is the reduction of adverse impacts on matters of
NES through requiring mitigation and conditions. Conditions may be placed on projects when making
an approval decision, for example the creation of wildlife corridors or monitoring programs, which the
proponent must complete. A form of conditions are environmental offsets, which propose to ameliorate
the impact an action will cause by creation of additional environmental benefits. Failure to comply
with conditions attached to a project will amount to a breach of the EPBC Act and penalties will apply.
Key points raised in public submissions
Mitigation measures
4.150
Submissions indicated that the regulatory approval process should seek to prevent damage to
ecosystems, rather than placing undue reliance on offsets. As such, the decision-maker should require
modification to the design of developments to reduce impacts instead of offsetting biodiversity losses.
4.151
Some concerns were raised with the effectiveness of current mitigation practices. It was suggested that
prior to the approval of projects, the mitigation measures need to be proven to be effective. It was also
suggested that mitigation measures undertaken should be audited to see if they have been successful in
reducing impacts on protected matters.
Conditions of approval
4.152
Submissions raised some concerns about the imposition of conditions on approved projects. Several
submissions suggested that there needs to be incorporation of scientific measures to ensure that
conditions are going to have environmental benefits. Furthermore, conditions must be able to be
monitored and enforced.
4.153
It was submitted that there should be compulsory public consultation regarding proposed conditions,
although other submissions expressed caution over the delays involved in this further public
consultation. Industry bodies argued that increasing the flexibility of conditions would ensure better
outcomes; however, industry groups have also called for greater certainty in the EIA process and this is
antithetical to flexible conditions. It is important to note an increasing focus from the Department on
outcome-based conditions, which may be monitored more easily.
Senate inquiry into the operation of the EPBC Act
Offsets
4.154
There was a considerable amount of public comment on the role of offsets under the EPBC Act. The
Senate Committee’s report also commented on offsets, suggesting that:
4.155

there was ‘a degree of disquiet amongst submitters about offsets. The committee heard evidence in
favour of the use of offsets as well as concern that offsets were inadequate and/or being used
inappropriately’87;

that the status of the Department’s offset policy was unclear; and

that offsets should only be used as a last resort and not to get otherwise unacceptable projects over
the line.
The Senate Committee recommended:
that government policy regarding the use of ‘offsets’ for habitat conservation state that the use of offsets:
4.156

is a last resort;

must deliver a net environmental gain; and

should not be accepted as a mitigating mechanism in instances where other policies or legislation
(such as state vegetation protection laws) are already protecting the habitat proposed for use as an
offset.88
The Government is currently finalising its draft offsets policy. The independent review will engage
with the Senate Committee’s recommendation once the policy has been finalised.
4.17.3 Discussion of key points
Approval conditions
4.157
In the Minister’s media release about approval of the McArthur River Mine, it was stated that
communication of ‘the outcomes of environmental monitoring and other reports with the local
community’ could not have been required as a condition of approval.
4.158
Section 134 may be read as confining the Minister’s statutory power to impose conditions to the
achievement of better environmental outcomes. A possible interpretation is that when read with the
object of the Act ‘to promote a co-operative approach to the protection and management of the
environment involving governments, the community, landholders and Indigenous peoples’, this power
extends to requiring disclosure of monitoring reports. This view may be confirmed by s.136(1) which
requires the Minister to have regard to ‘social matters’ when deciding what condition to impose, which
might include requiring the release of key environmental information either to a section of the
community with a particular interest in a project or to the public at large.
4.159
Given the Minister’s purported inability to require communication of the outcomes of monitoring, the
Act should be amended to give the Minister explicit power to require the publication of any
information which a proponent has provided to the Minister.
Public Participation in EIA
Key points raised in public submissions
Awareness of the Act
4.160
A theme which came through in many submissions was that generally, the level of awareness of the
EPBC Act in the community was low. This was not limited to members of the public, but was also true
of the private sector, industry bodies and State and Local Government agencies. The lack of awareness
of the Act was seen as diminishing the effectiveness of the legislation. It extended not only to the
purpose and objects of the EPBC Act, but also to the processes themselves and to the public’s right to
participate in these processes.
4.161
It was suggested that the key to resolving this issue was one of communication. DEWHA was seen as
the most appropriate source to disseminate information and to undertake ongoing education and
awareness programs suited to the different stakeholder groups. In this regard, information relating to
penalties for breaches of the Act was considered an important topic that should be covered.
87
88
Senate Committee Report, para [5.57].
Senate Committee Report, Recommendation 9.
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
4.162
Several submitters made reference to the now defunct EPBC unit (a joint project run by WWF, the
Humane Society International and the Commonwealth Government) in terms of its usefulness in
community education and awareness-raising activities, as well as enlisting public participation which
was a core objective of the unit. The EPBC unit was commended as an appropriate, and successfully
proven vehicle for increasing awareness of the Act 89 and a call was made for its reinstatement. 90
4.163
In terms of developers, while large-scale proponents were generally aware of the Act, the submissions
indicated that there was still some uncertainty as to those projects that needed to be referred under the
EPBC Act. With smaller-scale operators, the lack of awareness of their responsibilities under the Act
was viewed as of more serious concern.
4.164
This lack of awareness was compounded by an absence of knowledge at the Local Government level
which is a first point of contact for many developers and concerned individuals. It was thought that
there should be some closer interaction between Local, State and Federal governments, and in
supporting Local governments in their role in the operation of environmental legislation.
4.165
The Local Government and Shires Associations of NSW summed up the position:
Lack of awareness of councils’ responsibilities under the Act, including in relation to their own activities
continues to be a major barrier to the effective implementation of the legislation. The Australian Government
will need to invest in building the capacity of councils to understand and implement the Act. This needs to occur
beyond the environmental project staff, to include planners, senior management and councillors.
Awareness raising activities must clearly outline local government’s requirements under the Act and detail how
the legislation operates in relation to the approvals processes under the NSW Environmental Planning and
Assessment Act 1979. Councils’ duties in advising applicants on major projects, and the assessment process
where the applications trigger responsibilities under the EPBC Act, need to be clarified.91
4.166
The lack of knowledge about the Act was seen as a contributor to the low referral rate and to the
occurrence of some major legislative breaches, especially relating to illegal land clearance. This is a
topic that was dealt with specifically by the Senate Inquiry into the operation of the EPBC Act and is
discussed in more detail later in this chapter.
Referrals, assessments and approvals
4.167
Many submitters raised issues relating specifically to the EIA process, including:

the value of and capacity of the public to influence decision-making;

the referral notification process;

timeframes for public comment;

the information and quality of documents publicly available;

the extension of the public participation processes.
Value of participation and capacity to influence decision-making
4.168
Generally, submitters were concerned about the value of their participation in the EIA process and
ability to influence decision-making. Some felt that the public consultation process was limited in its
transparency and independence, and needed to be amended to allow for better community
participation.
4.169
The submissions revealed a lack of clarity about the different EIA processes, as well as some
confusion as to how they operated in practice. This view was summed up by the Central West
Environment Council:
Once a submission to referral has been lodged by a member of the public, there is no clear process for response
from the EPBC unit or the proponent of the referred proposal. There is no clear process for the public to receive
the final determination or how the determination was arrived at. 92
4.170
89
One aspect of the EIA process raised by several submitters was the level of ownership in the process
felt by those members of the public who had made comment. They were disappointed in the feedback
that was given to them initially after lodging a submission, in terms of the pro forma letter that was
Submission 181: WWF.
Submission 217: Peel Harvey Catchment Council.
91
Submission 077: Local Government and Shires Association of New South Wales, p.1.
92
Submission 029: Central West Environment Council, p.5.
90
sent out,93 the lack of information about the contribution they had made in the decision-making process
and the absence of personal notification of approval decisions. 94
4.171
Another feature of the submissions received was concern about responding to proponents directly.
Despite the systems prescribed under the Act to ensure that public comments are passed on to the
Minister by proponents, this process was considered inappropriate and did not inspire confidence. 95
There was a lack of trust that the public comments, or even a balanced summary of them, would be
forwarded on to the Department. If provided, it was felt that there was potential for only a filtered
version to be passed on to the Minister.
4.172
As was expressed by the Conservation Council (ACT Region) in its submission:
The public contribution is no less valuable than that of the proponent and it should be equally considered by the
Minister. The Minister should consider the full and detailed range of public comments as delivered by those
who wrote them rather than a summarised version prepared by someone with a vested interest in the outcome.
Whilst the Minister does receive a copy of the comments from the proponent this is not the same as receiving
them directly and it does shift the balance to proponents, giving them an extra opportunity to convince the
Minister that is not available to the public.96
4.173
In this regard, it was felt that all public comments should be made directly to the Minister. The
Department should prepare a separate document containing a summary and analysis of the public
submissions received for the Minister, which could also be referred to in the Secretary’s
recommendation report. This was viewed as a simple mechanism that would enhance the transparency
and independence of the public consultation process and go some way to alleviate submitters’ concerns
that public comments were not taken into account in the decision-making process.
4.174
The River, Lakes and Coorong Action Group noted:
It [public consultation] is also the only point where comment can be made on the merit of the action i.e. if it is a
reasonable thing to do to the environment. After the 10 day period, the public has no chance to call the action
into question, even if further studies or even other referrals, lead to a change in circumstances. The referred
action, if allowed, stands immutable thereafter. The only path is action through the courts, which has significant
risks.97
Notification of referrals
4.175
There was a widely held view among submitters that notification of referrals on DEWHA’s website is
inadequate and diminished the potential for public engagement. It was felt that this was particularly
relevant given the timeframes available for public comment. Some submitters indicated that they
became aware of referrals by continually checking the website, or came across them by chance. There
was a suggestion that there should be an obligation on the proponent lodging the referral (or on
DEWHA) to notify the public of an impending referral/notification of referral (at the date of
lodgement)98 to provide some certainty amongst the public and to allow them some time to organise
themselves in terms of preparing their comments.
4.176
In addition, notification on DEWHA’s website was regarded as a very limited form of publication and
was perceived as actively discouraging public participation. Several submitters suggested that
notification should occur in national, state and locally circulated newspapers as, often, communities
affected by proposals had limited access to, or were not regular users of, the internet.
4.177
Even those submitters who were computer literate expressed difficulty in locating information on
DEWHA’s website. These complaints were not limited to notifications, but also related to the
information that was available on the website as well as the organisation of that information generally.
Some submitters (proponents) also made reference to the limitation in size of documents that could be
lodged electronically with DEWHA.
4.178
Mr Jamie Pittock, Dr Debra Saunders and Ms Karen Stagoll submitted that:
Public submissions on referrals and assessments need to be encouraged and eased by a more intelligent search
engine and an alerts system, where public users could sign up to receive email alerts notifying them of referrals
and assessments relevant to their area of interest. This would provide an avenue for both internal and public
assessment and review of what matters of NES are triggering the Act and how many proposals have been
altered, stopped or approved for each matter of NES.
93
Submission 019: Mr Brendan Casey.
Submission 029: Central West Environment Council.
95
Submission 055: Conservation Council (ACT Region).
96
Submission 055: Conservation Council (ACT Region), p.24
97
Submission 180: River, Lakes and Coorong Action Group, p.2.
98
Submission 029: Central West Environment Council.
94
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
For those members of the public who are not on such a notification list, each referral should be clearly
identifiable online according to the matters of NES that may be impacted upon so that people with relevant
expertise or information are readily able to search for and provide comment on proposals without wading
through a pile of PDF files to find the relevant information (if available at all). 99
4.179
River, Lakes and Coorong Action Group suggested that there ought to be a pre-referral consultation
process with the local community in relation to high impact proposals (such as weirs) before any
referral process commenced. 100
Time periods for public comment
4.180
The submitters who addressed this point generally comprised individuals and environmental nongovernment organisations (NGOs) who had made submissions in the past. They were of the view that
the 10-day timeframe for public comment was far too short. The views expressed were that this
timeframe actively discouraged public participation, and that it was inadequate in terms of achieving
effective public consultation on proposed actions.
4.181
In relation to assessment timeframes, the generally held view among these submitters was that
amendment to the EPBC Act to extend the timeframes was essential. Suggestions ranged from 20
business days to three months (with a moratorium over the Christmas/New year period). With respect
to large, complex or controversial projects, it was suggested that the Minister should have the power to
extend the time period for public comment to an appropriate duration commensurate with the nature of
the project under consideration and the potential for public interest.
4.182
The view of the individual and environmental NGOs who commented on this issue was expressed
succinctly by Eastern Hills and Murray Plains Catchment Group in their submission:
While the proponent has the luxury of as much time and expertise they can muster in preparing their submission
public interest or private individuals must gather their resources under extreme time pressure, with whatever
assistance they can get. This makes it very difficult to adequately address the often complex issues to be dealt
with. Matters may be overlooked or not clearly perceived, which undermines the integrity and validity of the
process itself. This is difficult to justify since the Minister can ‘stop the clock ’ to address any issue deemed
necessary. Hence both the proponent and the body assessing the matters have a distinctly better position in
relation to the timeframes of the process than any other party who may have legitimate views and input into the
process. The continual rediscovery of the value of local knowledge and experience should reinforce the
importance of allowing these to be adequately involved in these processes. 101
4.183
The differences between the two processes in terms of the time proponents had to prepare their
material, in contrast with and the timeframes for public comment was regarded as undermining greatly
the integrity and validity of the public consultation process and was considered to be a major failing of
the Act.
4.184
The argument was that with additional time, a higher calibre input could be put forward which would
increase the utility of the public comment submitted.102 This would be of benefit to the Minister,
ultimately, in that it would enable the presentation of the full range of issues which needed to be
considered before a decision was made.
4.185
Industry and proponents provided their views at the face-to-face consultations. Their views tended to
support the certainty that the existing timeframes gave developers in terms of project planning.
Information publicly available and quality of documentation
4.186
In relation to the publication of referral material, s.74(3A) provides that the Minister may refuse to
cause to be published as much of the information included in a referral as the Minister is satisfied is
commercial- in-confidence. Some submitters regarded the commercial-in-confidence provisions as
being ‘over-used’ resulting in a lack of information going out to those most affected by
developments,103 again impacting on the effectiveness of the public participation process.
4.187
It was noted that there was no requirement for public comments to be published and, in practice, they
are not made available publicly. It was suggested that a list of submitters, and their comments, should
be available on DEWHA’s website. It was also thought that the summary and analysis document
provided to the Minister should be published, or at least made available to those who had made
submissions. One submitter suggested that submissions on referrals should be treated like those to the
99
Submission 101: Mr Jamie Pittock, Dr Debra Saunders and Ms Karen Stagoll, p.7.
Submission 180: Rivers, Lakes and Coorong Action Group.
101
Submission 058: Eastern Hills and Murray Plains Catchment Group, p.5.
102
Submission 167: Friends of the Earth (Adelaide).
103
Submission 131: Garner Beach Habitat Action Group.
100
Senate Inquiries, that is, placed on the public record as items of reference for the future.104 These
mechanisms were considered as increasing the transparency of the public engagement process.
4.188
Another issue raised in the submissions was the quality of the documents that were published. This
was of particular concern in relation to the PER and EIS assessment methods. Submitters complained
of the publication of substandard or incomplete draft PERs or EISs. They expressed concern that as
this was the only document on which the public had an opportunity to make comment, it impacted on
the validity of the public consultation process (the final PER or EIS is not subject to publication or
invitation for comment under the current provisions of the EPBC Act).
4.189
Some submitters related their experience of having wasted valuable resources on commenting on what
they regarded in terms of quality as a basic first draft, and considered that there should be
predetermined qualitative standards for PERs and EISs that proponents should be required to meet
from the outset and before the public were required to comment on the draft PER/EIS. Submitters
believed they should also have access to further draft documentation and be given a reasonable time to
comment on these subsequent drafts.105 The presentation of poor quality documents was viewed as part
of a strategy of attrition by proponents to wear down those who were opposed to proposed
developments.106 This strategy was also perceived as devaluing generally public input in terms of its
worth in the decision-making process.
Expansion of public consultation processes
4.190
Most submitters expressed the view that while they were encouraged by the public comment processes
contained in the EPBC Act, there were some very obvious limitations in the prescribed processes and
much scope for improving and strengthening public consultation under the Act.
4.191
While many of the comments made by submitters suggesting how the public could engage more
effectively in the EIA processes have already been explained in this chapter, for convenience the
following provides a summary of the main suggestions, that:

the referral notification process on DEWHA’s website be improved;

the EPBC Act be amended to make it compulsory for all documents prepared during the referral
period to be open for public scrutiny with a less rigorous use of the commercial-in-confidence
provisions of the Act;

the minimum time periods for public consultation be extended (and exclude holiday), with
flexibility to further extend timeframes depending on the nature of the proposed action and the
possible impacts;

more stringent or rigorous guidelines be introduced in terms of the quality of documents produced
by proponents, restrictions on the requirement of the public to comment on documents that did not
meet those standards and sanctions for those who deliberately breach those standards and
guidelines;

documents produced during the assessment phase be published in addition to the referral
documents;

the public be provided with an opportunity to participate in, or be consulted during the preparation
of final PERs or EISs;

final PERs or EISs be published with an invitation for public comment; and

the public be provided with an opportunity to comment on approval decisions and any conditions
attached thereto, similar to the process permitted for proponents.
Senate inquiry into the operation of the EPBC Act
4.192
The Senate Committee’s report dealt, at length, with the issue of engaging stakeholders.
4.193
Relevant to this chapter was the issue of whether all projects that needed to be referred under the
EPBC Act were being referred. The Committee heard that some proponents were uncertain about
actions which were required to be referred under the Act.
104
105
106
Submission 180: River, Lakes and Coorong Action Group.
Confidential Submission.
Submission 165: Stradbroke Island Management Organisation.
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
4.194
Agriculture was cited as a particular industry where there was significant confusion, especially in
relation to routine activities undertaken on farms that may impact on matters of NES, and the
exemption of certain actions under ss.43A and 43B of the EPBC Act relating to continuing use. The
Committee noted that confusion was especially obvious relating to the expansion or intensification of
farming activities.107
4.195
In its conclusions, the Committee noted the value of the Department’s officer out-posted to the
agricultural sector, as well as the value of Departmental field officers. The committee also:
accepts the concerns expressed through both ANAO audits regarding the adequacy of referrals in the area of
agriculture and land clearing. The committee hopes that the increase in resources already received by the
department; the department’s plan to implement a communications strategy; and the additional funding
recommended in Chapter three of this report, will collectively ensure improvements in this area. 108
4.196
The Senate Committee’s report also included reference to the timeframes provided for under the Act
for public participation in the EIA process. The Committee noted submitters’ suggestions for longer
timeframes in the range of 28 to 90 business days.
4.197
Other issues raised included concern about the availability of data relating to the assessment process
adopted in respect of a referral. Despite there being an obligation to publish this information in the
Act,109 the Committee agreed that there did appear to be limited information accessible regarding the
assessment approach through the Department’s online database. 110
4.198
In their additional comments, the Australian Greens expressed particular concern about the restrictions
on public participation, including the length of public consultation periods and the lack of a legislative
timeline for a response from the Minister. It was recommended that public consultation periods be
increased.111
Discussion of key points
Awareness of the Act
4.199
The scope for public consultation in key decision-making processes under the EPBC Act is regarded as
an integral part of its operation and administration. Having said this, however, it is important to note
that the cornerstone of public engagement depends on an awareness of the EPBC Act and peoples’
rights and responsibilities under it. The submissions themselves highlight the interdependence between
awareness and participation; therefore, the low level of awareness of the current environmental
legislation is a matter of serious concern.
4.200
This is a crucial issue that needs to be addressed and, as has come out of the submissions received, the
agency with the most obvious responsibility for the task of increasing the level of awareness of the
EPBC Act is DEWHA. Of course, there are likely to be individuals and entities willing and able to
assist, and such assistance would be welcomed. However, the driving, and guiding force, behind any
awareness raising programs or activities should come from within the Department.
4.201
Importantly, one of the questions posed in the Discussion Paper for the review published in October
2008, was whether the public understands its responsibilities under the Act to refer proposed actions to
the Minister. As noted earlier, this question was also posed in the Senate Inquiry’s first report.
4.202
The submissions received were similar in nature to those made to the Senate Committee. The general
view expressed was that, especially in the areas of agriculture and land clearance, proposed actions
were not being referred. The anecdotal information is supported by the statistical evidence which
reveals that the referral rate has not improved over the last few years. As noted in Chapter 5 of this
report, Prior Authorisation and Continuing use Exemptions, a partial explanation for the low number
of referrals from the agriculture sector may be the application of the prior authorisation and continuing
use exemptions in ss.43A and 43B of the Act to this particular sector. But it appears likely that failure
to comply with the Act is also a factor.
107
Senate Committee Report.
Senate Committee Report, para [6.15].
109
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.91.
110
Senate Committee Report, para [6.28].
111
Senate Committee Report, Additional comments from the Australian Greens.
108
Value of and capacity to influence decision-making
4.203
The purpose of engaging the public in the regulatory processes under the EPBC Act is to involve
people in decision-making on significant issues that impact on their communities and to make
decisions more open and transparent.
4.204
To give effect to this purpose, greater support for the public comment regime needs to be provided
insofar as it relates to the EIA processes under the Act. Whether it is necessary to amend the current
objects of the Act to recognise specifically the importance of this aspect of public involvement, or
whether administrative changes may be sufficient is an issue that needs further consideration.
4.205
Some of the solutions proposed by submitters are simple but effective in terms of increasing the
perception of independence and transparency about the processes, such as including in the assessment
process those members of the public who have made comment about a specific referral. Other
suggestions relating to the publication of referral submissions also have merit.
4.206
It is important to note the depth of concern expressed about whether the views put forward in public
submissions are presented to the Minister fully – given that these views are presented to the Minister
via the proponents who are viewed as having a vested interest in the outcome. Whether these
procedural requirements remain in the Act is a matter that requires further deliberation. However,
advice received from DEWHA is that notwithstanding the concerns of submitters, it is the experience
of the Department that proponents do deal fairly and impartially with the public submissions received.
4.207
One aspect which has caused some concern is the absence of a requirement to produce reasons for
administrative decisions made under the Act (except pursuant to a formal request pursuant to either the
Administrative Decisions (Judicial Review) Act 1977 (Cth) or the Administrative Appeals Tribunal Act
1975 (Cth)). While there is otherwise no legal obligation to provide reasons for these decisions,
consideration should be given to making it a requirement to publish reasons for decisions in the
interests of accountability and transparency.
Timeframes for public comment
4.208
The discrepancy between the lead time a proponent has to prepare referral documents and the tight
timeframes available for public comment (by individuals and environmental NGOs) has been noted.
This is of concern, particularly when one considers that some referral documents are extensive and
may be the product of full-time resources (often for some significant time), in contrast to the very
limited time and usually part-time resources available to interested individuals and NGOs who may
wish to comment on a referred action.
4.209
On one hand, a proponent has a reasonable expectation that the EIA process will be undertaken within
a reasonable period. On the other, of course, is the need to ensure that appropriate decision-making is
undertaken under the Act.
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Public engagement is part of the EIA process and, therefore, an appropriate balance needs to be struck
to integrate effective public consultation within the EIA processes prescribed under the Act. There may
be benefit in increasing the time periods for public comment. There would also be costs. The balance
between longer periods for comment and timely decisions needs to be struck. Proponents require
certainty in terms of scheduling the EIA process into proposed development time lines. The Act
currently contains prescribed timelines for public consultation and decision-making. The time
proponents have, for example, to prepare a PER or EIS, or respond to comments is not prescribed. It
has been suggested that maybe time constraints should be introduced for these too.
4.211
The strict statutory timeframes in the Act have been viewed as an important component balancing the
opportunity for public comment with the need for efficient decision-making.
4.212
Having said this, however, the majority of referrals are dealt with without any difficulty on the part of
either proponent or the public. It is often the larger proposals that are likely to draw community
opposition that are cause for concern.
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It is important to note that there are various provisions in the EPBC Act which enable the Minister to
suspend timeframes for various reasons within the Minister’s discretion (for example, upon a request
for further information, or to enable the Minister further time to make an approval decision). However,
the Act does not contain any similar provisions relating to the period for public comment, except in
relation to the assessment on preliminary documentation for which there is no specified timeframe
apart from that which the Department deems to be a reasonable period.
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
Information publicly available and quality of documentation
4.214
The relevant sections of the EPBC Act that specify the categories of documents in the EIA process that
are required to be published, the exemptions from publication and the comments made in terms of
these provisions limiting the openness and transparency of the EIA processes were identified earlier in
this chapter.
Commercial-in-confidence exemption
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Regarding the exemption for commercial-in-confidence information, it is relevant to note that this is
not limited to proponents’ documents but also extends to documents prepared by the Department for
approval,112 as well as referral and assessment documents.
4.216
While guidelines set out in the Act enable a determination of whether or not information is
commercial- in-confidence to be made, it is unclear how decisions to exempt publication on this basis
are made within DEWHA, or how often these provisions are used. The anecdotal information
contained in the submissions seems to suggest isolated use of this exemption. The question does arise,
however, at least with respect to approvals, whether it is in the interests of open and transparent
decision-making, made with the direct involvement of the public in that process, that publication
should prevail over any claim to commercial-in- confidence.
Independent reports
4.217
There is also a case for other documents to be made public. The independent reports commissioned by
the Department are one example because of their importance in the decision-making process. At the
moment these reports are only sometimes made publicly available by the Department and placed on its
website – for example, in relation to the Gunns Pulp Mill and the Traveston Dam. In other cases they
are not – for example in relation to the Christmas Island phosphate mine. Because of the significance
of these reports, an option may be to require the Minister to make these reports available to the project
proponent and to the public at large.
4.218
This requirement should relate both to independent reports commissioned pre-approval as part of the
assessment process and those commissioned post-approval (for example, as part of the preparation of
an environmental management plan, such as those prepared by the Independent Expert group in
relation to the Gunns Environmental Impact Management Plan).
4.219
These matters could all be addressed in a new statutory provision relating specifically to these
independent reports. This provision could also empower the Minister to commission such reports and it
could require the Department to make these reports available concurrently to the project proponent and
the public at large.
Environmental management plans
4.220
Environmental management plans – specifically referred to in s.134(3)(d) of the Act – are now
commonplace. They are a crucial part of the approval process. Because of the significance of these
plans, there could be a statutory requirement that the government make the final plans publicly
available (just as with the notice of approval in s.133). At the moment this is not the case. So, for
example, the Environmental Impact Management Plan for the Gunns Mill is publicly available only
because the company has published it on its website. The public availability of these documents should
not be dependent on whether particular proponents choose to make them accessible.
Quality of documents
4.221
In terms of the quality of proponent documents made available for public comment, there appears to be
no empirical evidence either for or against this claim. However, without going into the factual basis for
this view, there is clearly a need to ensure broad confidence in the EIA process generally, including the
quality of the information the public is invited to comment on.
Expansion of the public participation processes
4.222
112
As noted earlier, the submissions made numerous suggestions for improving the public engagement
process with respect to the EIA process, many of which have merit.
Environmental Protection and Biodiversity Conservation Act 1999 (Cth) s.133(4).
4.223
Some changes to the public consultation processes may be necessary to enable full and effective public
engagement at key stages of the decision-making process. For example, because of the significance of
environmental management plans, there is a strong argument that they should be the subject of public
consultation, which would see a draft plan released for public comment.
4.224
Clearly, though, there is a need to maintain a balance between public consultation and efficient
decision-making. The objectives and purpose of consultation should be made clear and should include
the principle of transparency in decision-making. The right balance and potential changes to
consultation processes are matters that will require further consideration.
Cumulative impacts
Current provisions of the Act
4.225
To understand to what extent the EPBC Act considers cumulative impacts, the EIA process must be
broken down into its two component decision-making stages – the controlled action decision and the
approval decision.
4.226
When making a decision on whether an action is a controlled action under the EPBC Act, the relevant
test is whether the action has a significant impact on a matter of NES.113 Submissions suggested that
this test fails to consider impacts from actions that were sub-significant, but had a larger cumulative
impact. This raises problems for decision-makers under the EPBC Act, as cumulative impacts may be
both significant and insignificant, depending on the scope of assessment.
4.227
When the EPBC Act was passed, it was clearly expressed in the Explanatory Memorandum to the
EPBC Act that cumulative impacts were not to be considered under the test of significance:
An action carried out by an individual which is not likely to have a significant impact on a [protected matter]
will not require approval, even if the overall impact of a large number of individuals independently carrying out
actions of the same kind may have a significant impact on the [protected matter]. The cumulative impacts of
independent actions by different persons, all of which are below the significant impact threshold, are primarily
to be addressed through State planning and land management legislation, and recovery plans.114
4.228
Because of the structure of the EPBC Act, the controlled action decision determines whether further
assessment and approvals are required. Sub-significant but cumulative impacts, according to the text of
the legislation, should not be considered when making a controlled action decision.
4.229
Since the Act’s passage through Parliament, the question of what constitutes a significant impact has
been tested. When determining the significance of an impact, the consideration of the ‘context’ of the
action is required.115 It is clear that the context may include the likelihood of many similar actions
occurring in an area. In this way, some considerations of cumulative impacts have started to creep into
the Act’s administration.
4.230
The cumulative impacts of an action that is determined a controlled action may be considered when
making an approvals decision. The question at this stage is no longer does an action have a significant
impact, but relates to a range of other considerations focused around ‘should the impact be allowed’. A
decision-maker may consider the cumulative nature of the action being assessed to determine whether
it is acceptable to approve the action, and what conditions may be appropriate.
Indirect impacts
4.231
The courts have also determined that, when making a controlled action decision, there is a requirement
to consider indirect impacts likely to flow from the action. Indirect impacts have the capacity to cause
cumulative impacts, but not all indirect impacts will necessarily be cumulative, as the primary action
may cause secondary actions that are not cumulative in nature. In reality, secondary actions often
accumulate with other like secondary impacts.
4.232
The requirement to consider indirect impacts arose from the Nathan Dams Case116 and was codified in
the 2006 Amendments which inserted the definition of impact, 117 which allows consideration of some
indirect cumulative impacts, but not all cumulative impacts in general.
113
Environmental Protection and Biodiversity Conservation Act 1999 (Cth) Part 3.
Explanatory Memorandum, Environmental Protection and Biodiversity Conservation Bill 1999 (Cth), paras [51], [61] and [79].
115
Booth v Bosworth (2001) 114 FCR, para [39] (per Branson J).
116
Minister for the Environment and Heritage v Queensland Conservation Council Inc (2004) 134 LGER A 272.
117
Environmental Protection and Biodiversity Conservation Act 1999 (Cth) s.527E.
114
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
4.233
As noted, judicial expansion of the application of the ‘significant impact’ test has occurred through the
requirement to consider ‘context’ and ‘indirect impacts’. This expansion must ultimately be limited by
the text of the Act and the wording of the Explanatory Memorandum and should still retain an
appropriate division of roles and responsibilities between the Commonwealth and State governments.
Key points raised in public submissions
4.234
A prevailing theme arising from public submissions was a concern that the EPBC Act does not
consider cumulative impacts, or does not deal with them well. Public submissions argue that modern
anthropogenic environmental impacts are occurring with greater frequency, intensity and over longer
timeframes and distances than previously occurred. These impacts are too persistent, widespread or
concentrated to disperse into the environment before combining with the impacts of other projects.
These ‘cumulative impacts’, are often described as a process of ‘death by 1,000 cuts’, or the ‘tyranny
of small decisions’.118
Split referrals
4.235
A concern in the public submissions that was also raised in the Senate Inquiry’s first report was that
proponents were breaking larger actions into smaller referrals. If the actions referred were subsignificant then they would not require approval, although the numerous sub-significant parts may
have a large cumulative impact. Some submissions noted the Minister’s capacity to reject referrals
believed to be part of a larger action under s.74A; however, they believed this was not effective in
practice.
4.236
The National Parks Australia Council suggested amendments including removing the discretionary
element of s.74A and compelling the Minister to refuse to accept the referral if there are reasonable
grounds for believing that it is part of a larger action. 119 Alternatively, the National Parks Australia
Council suggested the legislation could prohibit a proponent from undertaking any subsequent
undisclosed actions that could have been reasonably contemplated at the time of the referral, or
requiring the Minister to assess any subsequent referrals as if they were part of the first. 120
Senate inquiry into the operation of the EPBC Act
4.237
The Senate Committee first report suggested that:
there are other ways of attempting to tackle cumulative environmental impacts, including by direct regulation.
For example, many states have remanent vegetation protection laws, designed to address the pressures caused
by land clearing. There is also the option of using the ‘key threatening process’ provisions under the current
Act.121
4.238
These uses of the biodiversity protection measures of the EPBC Act to address cumulative impacts is
addressed in detail in Chapter 13, Biodiversity Conservation, Recovery Planning and Threats
Management.
Discussion of key points
4.239
Cumulative impacts are an issue for all project-by-project assessment regimes. It is well recognised
that traditional EIA does not deal well with cumulative impacts in a statutory sense.
4.240
The Commonwealth has a role in addressing cumulative impacts because this represents best-practice
impact assessment in line with the role of the Commonwealth as a leader and standard setter. The
Commonwealth also has a role in considering cumulative impacts because these may have long-term
detrimental effects on matters of NES.
What are cumulative impacts?
4.241
118
While many of the submissions gave examples of the cumulative impacts of numerous actions, they
did not help clarify the meaning of cumulative impacts. In turning to the literature there is little
Submission 092: Friends of Grasslands.
Submission 161: National Parks Australia Council.
120
Submission 161: National Parks Australia Council.
121
Senate Committee Report, para [3.53].
119
consensus when defining cumulative impacts, and so ‘a bewildering array of terms’ has arisen.122 A
workable definition for the purpose of this Interim Report is that:
cumulative impacts are effects which combine from different projects and which persist to the long-term
detriment of the environment. Cumulative impacts refer to progressive environmental degradation over time,
arising from a range of activities throughout an area or region, each activity considered in isolation being
possibly not a significant contributor.123
4.242
Examples of types of cumulative impacts are outlined in the table below.
Issue Type
Main Characteristics
Examples
Time Crowding
Frequent and repetitive impacts on a single Wastes sequentially discharged into
environmental medium
lakes, rivers or watersheds
Space Crowding
High density of impacts in a single
environmental medium
Habitat fragmentation in forests,
estuaries
Compounding Effects Synergistic effects due to multiple sources Downstream effects of several
on a single environmental medium
projects in a single watershed
Time Lags
Long delays in experiencing impacts
Carcinogenic effects
Space Lags
Impacts resulting some distance from their Gaseous emissions into the
sources
atmosphere
Triggers and
Thresholds
Impacts to biological systems that
fundamentally change system behaviour
Effects in changes in forest age on
fauna
Indirect
Secondary and tertiary impacts resulting
from a primary activity
Roads to resources which open up
wilderness areas
Sources of Cumulative Environmental Change124
4.243
Ecosystems react to effects cumulatively; as such, if the EPBC Act is to assess the impacts upon an
ecosystem adequately, it must contemplate cumulative impacts. It is worth noting that ‘ecosystems’
generally are not protected matters, with the possible exception of Ramsar wetlands. Ecosystems are
generally stabilised by dynamic self-compensating properties; these same properties, if overstressed,
can lead to a dramatic collapse or ecosystem shifts.
4.244
A small perturbation in one place may have large, distant, long-delayed effects. More recent ecological
conceptions of impact focus on homeostasis and ‘thresholds’, the limits to the carrying capacity of an
ecosystem. When impacts exceed the threshold, the dynamic equilibrium breaks down and the system
enters a damaged and less pristine homeostatic state. The crucial point is that cumulative impacts may
be linear, where each incremental addition is equal to the previous increment, or non-linear. Non-linear
impacts may appear non-problematic until a threshold is crossed, and the ecosystem collapses – a
process termed ecosystems ‘surprise’ or ‘brittleness’.125
Managing split referrals
4.245
Determining whether or not an action is part of a larger referral is difficult in practice and easier to
determine in retrospect than it is at the time the decision must be made. It is often a subjective decision
and it is hard to draw the line between related and unrelated projects. The test is one upon which
reasonable minds could differ strongly; as such it would be problematic as a mandatory consideration
under the Act. Tests such as whether something is in the contemplation of a proponent are also often
difficult to prove. Moreover, many circumstances exist where a ‘split’ in a project is warranted, for
example, phasing development of a large urban area in multiple ownership.
4.246
A more appropriate test should relate to the relationship between the actions, including in a physical
and temporal sense, as well as whether protection of matters of NES can be achieved best through
consideration of any larger action compared to a smaller component or staged action.
Methods for dealing with cumulative impacts
Harry Spaling and Barry Smit ‘Cumulative Environmental Change: Conceptual Frameworks, Evaluation Approaches, and Institutional
Perspectives’ (1993) 17(5) Environmental Management pp.588-589.
123
Alan Gilpin, Environmental Impact Assessment (EI A) : Cutting Edge for the Twenty-First Century (1995), p.31.
124
Adapted from Husain Sadar, Environmental Impact Assessment (1994).
125
William Rees ‘Cumulative Environmental Assessment and Global Change’ (1995) 15(4) EIA Review, p.302.
122
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
4.247
In theory there are two methods of dealing with cumulative impacts in a regulatory regime, 126 either
broadening the scope of traditional EIA so that cumulative impacts are taken into account, or
undertaking landscape or bioregional scale assessments. The potential to broaden the scope of EIA
under the EPBC is discussed in this Chapter, whereas the use of landscape approaches to address
cumulative impacts is considered in Chapter 10, Strategic Assessments and Bioregional Planning.
4.248
One of the suite of methods to deal with cumulative impacts is cumulative impact assessment, also
know in certain jurisdictions as cumulative effects assessment. Cumulative impact assessment is a subfield of traditional EIA, and as such is predicated on project-by-project assessment. Cumulative impact
assessment examines the environmental impact of a project in combination with past, existing and
future projects in the same system. 127 This broadens the scope of small decisions, lowering the chance
of incremental harm and giving a truer description of an action’s environmental significance.
4.249
In 1994, a report commissioned into EIA in all Australian jurisdictions had one key policy
recommendation: that there should be ‘Cumulative Impact Assessment for prescribed proponentdriven projects under Commonwealth EIA legislation as soon as possible and to the extent feasible’. 128
4.250
Best-practice cumulative impact assessment has three steps – scoping, cumulative effects evaluation,
and mitigation.129 Scoping requires identification of all valued ecosystem components upon which the
project will impact, for example endangered species, wetlands or world heritage sites. Cumulative
impact assessment involves broad scoping, identifying affected ecosystem components beyond the site
of the activity, and impacts from a wide range of existing and future actions, including impacts from
unrelated third parties. The decision-maker must determine what past, present and future human
activities have or will impact upon these receptors and then predict the impacts of the proposed activity
in combination with the effects of the external actions. This determines the cumulative significance of
the activity on the effected ecosystems components. 130 Finally, cumulative impact assessment requires
consideration of the best ways to mitigate, condition or offset any of these cumulative impacts. 131 The
quality of this type of process is largely dependent on the capacity to envision and plan for different
feasible scenarios.
4.251
Scenario planning is well developed in business and corporate arenas, but less well developed for
environmental applications. Essentially, it requires regulatory agencies, developers and other
stakeholders and land managers to co-operate at a landscape scale to identify social objectives (for
environmental, social and economic outcomes) and then to explore management options under a range
of alternative, potential ‘futures’. 132 Managers seek planning options that deliver minimally acceptable
outcomes for all social objectives, irrespective of the drivers and pressures that arise in future. 133 This
approach manages risk by satisfying acceptable outcomes under severe uncertainty surrounding
ecosystems, threatening process and future social change.
Moving from a traditional EIA regime to consider cumulative impacts
4.252
Traditional EIA regimes generally had a limited scope of assessment. EIA was constrained by
analytical and administrative shortcomings that resulted in cumulative impacts being ignored by
decision-makers. As such, early EIA only assessed ‘single perturbations, simple cause-effect
relationships, first order impacts, immediate effects, a specific environmental attribute, and an
individual site’,134 and therefore the role of EIA was diminished in managing cumulative impacts.
However, this review considers that EIA is a tool that could evolve to meet new challenges. The
This interim report recognises the importance of a ‘regulatory mix’ to deal most effectively with problems such as cumulative impacts, as
noted in Neil Gunningham ‘Beyond Compliance: Management of Environmental Risk ’ in Ben Boer, Robert Fowler and Neil Gunningham
(eds), Environmental Outlook – Law and Policy (1994), p.254. It therefore suggests that there may be valid methods of dealing with
cumulative impacts which occur outside and concurrently with the EPBC Act – such as economic regulation and program funding.
127
The size of the system will vary depending on the nature of the impact: for example, the system for the accumulation of water-pollutants
may be a watershed, but for greenhouse gas emissions will be the entire atmosphere.
128
John D Court, Colin J Wright and Alasdair C Gutherie, Assessment of Cumulative Impacts and Strategic Assessment in Environmental
Impact Assessment (1994), para [8.3].
129
Brian W Szuster and Mark Flaherty ‘Cumulative Environmental Effects of Low Salinity Shrimp Farming in Thailand ’ (2002) 20(3)
Impact Assessment and Project Appraisal p.190.
130
William Ross ‘Cumulative effects assessment: learning from Canadian Case Studies’ (1998) 16(4)Impact Assessment and Project
Appraisal, p.267.
131
For a more detailed practitioner’s guide on how to undertake cumulative impact assessment see the methodologies set out in Larry Canter
‘Cumulative Effects Assessment’ in Judith Petts (ed) Environmental Impact Assessment (1999), p.405.
132
Kiker G.A. et al. ‘QND. A scenario-based gaming system for modelling environmental processes and management decisions’ pp.151–185
in Benoit Morel and Igor Linkov (eds.) Environmental Security and Environmental Management: The Role of Risk Assessment (2006);
Bennett, E.M., Carpenter, S. R., Peterson, G. D., Cumming, G. S., Zurek, M. and Pingali, P. ‘Why global scenarios need ecology’
Frontiers in Ecology and the Environment 1 (2003) pp.322-329.
133
Mark Burgman, Risks and decisions for conservation and environmental management (2005).
134
Harry Spaling and Barry Smit ‘Cumulative Environmental Change: Conceptual Frameworks, Evaluation Approaches, and Institutional
Perspectives’ (1993) 17(5) Environmental Management, p.590.
126
question arises whether it is appropriate to broaden EPBC Act assessment to consider cumulative
impacts and, if so, what would be the most effective and efficient way to do this.
4.253
Questions have been raised whether the EPBC Act should move from a traditional EIA regime to one
that incorporates cumulative impacts. 135 Cumulative impact assessment is advocated as a matured EIA
process, which does not radically alter EIA. Elements of this maturation process can already be seen in
administration of the Act. Cumulative impact assessment is described as ‘more comprehensive, more
effective – and is therefore an exciting step forward in the evolution of environmental assessment’. 136
The more strident supporters of cumulative impact assessment claim that it forms part of best-practice
EIA because it promotes sustainable development. 137
4.254
In Australia it has been suggested that:
to achieve the nationally agreed goal of Ecologically Sustainable Development … we will need to
fundamentally change the way we make governmental decisions in Australia. Strategic Environmental
Assessment … incorporating Cumulative Impact Assessment … will be among the principal institutional tools
for achieving this goal and changing the way our decisions are made.138
4.255
Suggested amendments to allow for cumulative impact assessment under the EPBC Act included
amendment of the legislation by either changing the definition of impact or changing the methods of
assessment, updating the EPBC Act Policy Statements, or insertion of cumulative impacts as a
mandatory consideration in approvals, like social and economic impacts. An alternative may be greater
reliance on regional or landscape-scale decision-making. This is dealt with in Chapter 10 of this report,
Strategic Assessments and Bioregional Planning.
4.256
In their additional comments to the Senate Inquiry report, the Australian Greens support a move
toward cumulative impact assessment, recommending that the Australian Government:
amend the Act to require assessments of environmental harm take into account cumulative and indirect impacts
[and] publish administrative guidelines outlining how the government will take into account cumulative impacts
in referral, assessment and approval processes. 139
4.257
This issue is not addressed in the majority report.
Case studies - International implementation of cumulative impact
assessment
4.258
The EPBC Act is structurally similar to EIA regimes in other national jurisdictions, although it has less
developed cumulative impact assessment provisions. 140 In certain jurisdictions EIA systems have been
modified to consider cumulative impacts, although the methods and requirements of cumulative impact
assessment vary between jurisdictions. 141 These comparative regimes also provide alternative
legislative models for how to engage with cumulative impact assessment, although as with
comparative law institutional differences must also be taken into account.
The United States and Canada
4.259
In the United States the National Environmental Policy Act 1969 (US) (NEPA)142 is the Federal
legislative basis for cumulative impact assessment and the progenitor model for EIA worldwide. While
there were no express provisions in the original NEPA allowing for cumulative impact assessment, 143
Congress had considered that:
Considering the ‘purpose of EIA is to… inform decision-makers and, usually, the general public, about the predicted outcomes
(environmental, social and economic) of a proposal ’, Gerry Bates, Environmental Law in Australia, (6th Ed, 2006), p.314.
136
Harry Spaling and Barry Smit ‘Cumulative Environmental Change: Conceptual Frameworks, Evaluation Approaches, and Institutional
Perspectives’ (1993) 17(5) Environmental Management p. 596 citing Bronson.
137
See e.g.: Chris Cocklin, Sharon Parker and John Hay ‘Notes on Cumulative Environmental Change I: Concepts and Issues’ (1992) 35(1)
Journal of Environmental Management 31, p.46, claim that ‘cumulative effects analysis presents a framework for analysis consistent with
the concept of sustainable management’; See also Jake Piper ‘Barriers to implementation of cumulative effects assessment’ (2001) 3(4)
Journal of Environmental Assessment Policy and Management, p.465.
138
John D Court, Colin J Wright and Alasdair C Gutherie, Assessment of Cumulative Impacts and Strategic Assessment in Environmental
Impact Assessment (1994), p.i.
139
Senate Committee Report, Additional comments from the Australian Greens, p.103.
140
Similar not merely due to the fact they are EIA regimes but also similarities in provisions such as the ubiquity of the test of ‘significance’,
as noted above.
141
The trend towards adding cumulative impact assessment provisions into EIA regimes has resulted in a ‘global family of laws’ as
described in Chris McGrath ‘Minister Appeals the Nathan Dam Case’ (2004) 21 Environmental and Planning Law Journal p.90.
142
National Environmental Policy Act, 42 uSC §§ 4321-4345 (1969).
143
Although commentators had attempted to find them, including: JC Truett ‘U.S. Experience in Cumulative Effects Assessment’ in
Canadian Environmental Research Council (eds) (1987) Cumulative Effects Assessment: A Context for Further Research and
Development, p.1.
135
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
environmental problems are only dealt with when they reach crisis proportions … Important decisions
concerning the use and the shape of man’s future environment continue to be made in small but steady
increments which perpetuate rather than avoid the recognized mistakes of previous decades.144
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The Council for Environmental Quality (CEQ ) – a body created by Congress to oversee the
functioning of the NEPA – submitted binding145 guidelines stating that cumulative impact assessment
is required under NEPA analysis. 146
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Furthermore, cumulative impacts were comprehensively defined in s1508.7 as: 147
the impact on the environment which results from the incremental impact of the action when added to other
past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or
person undertakes such other actions. Cumulative impacts can result from individually minor but collectively
significant actions taking place over a period of time.
4.262
Despite these amendments, commentators suggest that the NEPA is ‘nonecosystems’ legislation and
that it still permits the cumulative ‘death by 1,000 cuts’ of individual land use decisions. 148 However,
the comprehensive definition of cumulative impacts is widely used by practitioners, and commentators
claim that the NEPA’s cumulative impact provisions are among world’s ‘best-practice’.149
4.263
The Canadian experience of EIA differs in implementation to the united States, with initial nonbinding guidelines supporting cumulative impact assessment until 1992. This lag time allowed
development of appropriate frameworks and methodologies to deal with issues raised by cumulative
impact assessment. The first binding cumulative impact assessment requirement was drafted in the
Canadian Environmental Assessment Act 1992 (Canada), requiring all EIA to consider: 150
the environmental effects of the project, including the environmental effects of malfunctions or accidents that
may occur in connection with the project and any cumulative environmental effects that are likely to result from
the project in combination with other projects or activities that have been or will be carried out.
4.264
There remain, however, issues as to whether this provision permits or mandates effective cumulative
impact assessment under the Environmental Assessment Act.151
4.265
Despite the strongly worded sections of the Canadian and united States EIA regimes, they only apply
to federal agencies. In contrast, the EPBC Act has a significantly broader application, applying to
actions undertaken by Commonwealth agencies and actions taken by private individuals.
New Zealand
4.266
The New Zealand EIA regime is enacted through the Resource Management Act 1991 (NZ) (RMA)152.
In the late 1980s New Zealand environmental laws were restructured. The policy behind these
restructures was said to be recognition that: 153
the interrelationships between the various elements of the biosphere are complex and should not be considered
in isolation. Integrated environmental management should reflect this interdependence so that environmental
policy-making, regulation and decision-making does not occur in isolation without regard to related issues,
flow-on consequences, and the cumulative effects of actions and activities.
4.267
144
In achieving these goals of integrated management the RMA placed ‘sustainability’ at the normative
core of the legislation,154 and ensured cumulative impacts would be measured through the meaning of
the term ‘effect’:155
Senator Robert Jackson, reporting to the Senate Interior and Insular Affairs Committee, Senate Report No. 296, 91st Congress, 1st
Session (1969), p.5.
145
Fritiofson v Alexander, 772 F 2d 1225 (5th 1985).
146
The CEQ guidelines were a codification of earlier cases (such as Kleppe v Sierra Club 427 uS 390(1976)) created by courts using a ‘
broad interpretation of the Act’s remedial purpose’: Terence Thatcher ‘Implementing NEPA: understanding Interdependence in the
Natural Environment – Some Thoughts on Cumulative Impact Assessment under the NEPA’ (1990) 20 Environmental Law, p.615.
147
The regulations of the Council on Environmental Quality implementing NEPA, 40 C.F.R., s1508.7. The requirements occur under
s1508.27(b)(7), whereby federal agencies must consider: ‘whether the action is related to other actions with individually insignificant but
cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment.’
148
Peter Lavinge ‘Greening the u.S. Constitution’ (2003) 17(6) Conservation Biology, p.1486; similar views on the failure of the NEPA’s
cumulative impact assessment provisions have been expressed in: James Auslander ‘Reversing the Flow – The Interconnectivity of
Environmental Law in Addressing External Threats to Protected Lands and Waters’ (1) 30 Harvard Environmental Law Review, p.481.
149
See e.g. William Rodgers ‘The Past, Present and Future of the National Environmental Policy Act’ (1990) 20 Environmental Law p. 487,
claiming that the NEPA has been mimicked by other EIA regimes because of its ‘consideration of cumulative and second-level effects’.
150
Canadian Environmental Assessment Act, SC 1992, c 37, s16(a).
151
See for example: Kate Lindsay and Clark Svrcek and Daniel Smith ‘Evaluation of Cumulative Effects Assessment in Friends of the West
Country Association v. Canada and the Land Use Planning Alternative’ (2002) 4(2) Journal of Environmental Assessment Policy and
Management, p.151, which claims that s16(1) makes cumulative impact assessment mandatory, but the decision-maker has discretion to
determine which related activities it considers when exercising cumulative impact assessment, effectively making it a weak requirement.
152
Resource Management Act 1991 (NZ).
153
David Grinlinton ‘Contemporary Environmental Law in New Zealand ’ in Klaus Bosselmann and David Grinlinton (eds), Environmental
Law for a Sustainable Society (2002) p.22.
In this Act, unless the context otherwise requires, the term effect includes ...
a.
any cumulative effect which arises over time or in combination with other effects — regardless of the
scale intensity, duration, or frequency of the effect.
4.268
This is perhaps the most expansive wording of a cumulative impacts section in any common law
country, and applies to a range of actions in New Zealand.
4.269
The final exemplary point about the New Zealand system is the hierarchy of planning, with national
policies feeding into regional plans, which guide local planning instruments. 156 These plans then aid
decisions regarding cumulative impacts, combining national policies and landscape approaches with
site-specific cumulative impact assessment.
Evaluation of case studies
4.270
154
The implementation of project-specific cumulative impacts assessment in other jurisdictions has not
been particularly successful in practice. Issues associated with this assessment include that cumulative
impact assessment increases uncertainty and expense in decision-making. Cumulative impact
assessment also has unfair consequences for third parties, whose capacity to undertake development is
limited by existing impacts in the landscape.
Resource Management Act 1991 (NZ) s.5.
Resource Management Act 1991 (NZ) s.3.
156
Jennifer Dixon and Burrell E Montz ‘From Concept to Practice: Implementing Cumulative Impact Assessment in New Zealand ’ (1995)
19(3) Environmental Management, p.445.
155