It’s the Commonwealth’s primary environmental protection tool, the key to protecting threatened habitats, assessing how major developments will affect the environment and ensuring Australia complies with its international commitments to protect World Heritage sites, RAMSAR wetlands and migratory species.

But the Environmental Protection and Biodiversity Conservation Act, put in place by the Howard Government in 2000, isn’t working.

Yesterday the Senate’s Environment Committee released the first of two reports on the Act, with another, on Regional Forest Agreements, scheduled for later in the year. Another internal Government review, required under the act within ten years of its commencement in 2000, is currently underway, headed by Allan Hawke.

The EPBC requires that anything likely to have an impact on matters of national environmental significance and anything significantly affecting the environment on Commonwealth land be approved by the Minister for the Environment. It’s the Act under which the Gunns pulp mill was conditionally approved, under which an orange-bellied parrot stopped the Bald Hills wind farm and under which the Port Phillip Bay dredging was considered not significant enough to warrant consideration.

It has been the subject of ongoing criticism in relation to both its effectiveness in addressing fundamental issues like land clearing, protection of habitats and greenhouse emissions and the lack of resourcing which has prevented the Commonwealth Environment Department from properly implementing and enforcing it.

The EPBC has the impressive record of being the subject of two critical Australian National Audit Office reports about its effectiveness in the first seven years of its operation, including a report in 2006-07 that found there was minimal enforcement of the Act.

The Committee found that the worst problems are:

  • There is no provision under the act to address land clearing, which continues to inflict massive damage on native vegetation and its carbon storage potential.
  • Climate change and greenhouse emissions are not included as “triggers” for the Act.
  • The Act relies on self-referral by advocates of major projects. Just seven out of more than 600 projects assessed under the Act have been refused since the Act commenced.
  • Until recently there has been no funding for enforcement of any kind, meaning no one has ever checked whether the conditions imposed by the Commonwealth as part of conditional approval of projects were actually met by developers. The Act therefore favours people who avoid the process altogether, or ignore conditions placed on projects. A small Departmental audit had found that over 40% of projects had not fully complied with conditions laid down for approval.
  • It allows the Commonwealth to avoid responsibility for actions through vast discretion for the Minister to avoid decisions, or refer handling of projects to the States.
  • The process for adding species and habitats as endangered is flawed and takes far too long due to resource constraints.

These weaknesses don’t just mean Australia’s biodiversity is threatened — as the report notes, “there is significant ecosystem degradation taking place across Australia… numerous species are in decline, with some of them facing extinction.” It also means that businesses and farmers who do the right thing and fully comply with the Act have to compete with those who ignore its requirements with virtual impunity. The process of assessing actions under the act is also uncertain and poorly-communicated.

In essence the Act doesn’t do much and the Department of the Environment hasn’t been funded to enforce what it does do.

There’s also the recalcitrance of the Department of Defence, which wants to be exempted from parts of the Act and has a record of upsetting communities around its facilities with its high-handed approach to issues such as storage of munitions.

“A lot of Defence land is very well-managed and havens for biodiversity,” said Green Senator Rachel Siewert, who participated in the inquiry, “at least until they bomb it to bits. But they are terrible neighbours and appalling at consulting with local communities, and very quick to play the national security card.”

The Committee made a number of suggestions for strengthening the Act and improving the transparency of its processes. Rare for a Senate committee report, neither the Coalition nor the Greens made dissenting reports, instead opting for “Additional Comments”. South Australian Liberal Simon Birmingham opposes the idea of providing a “greenhouse trigger” because no project could be linked to specific environmental impacts and so would lead to a simple arbitrary emissions threshold. However, he left the Coalition open to a supporting land-clearing trigger to be added to the Act if it reduced the current level of confusion farmers faced. Birmingham’s main priority is to see the current act working properly before it is expanded to address further issues.

For Siewert, however, the broader issue is whether an Act that has so manifestly failed can be fixed or whether an entirely new approach is needed. In her view, the committee didn’t go far enough in identifying the problems of the Act. She wants the Act patched up but believes a “paradigm shift” is needed for the longer term that provides greater transparency and certainty and can address key issues such as climate change and slow the rate of biodiversity loss.

The history so far of the EPBC has been of a regulatory framework that confuses stakeholders, fails to achieve its goals and does not punish those who ignore it. It needs a major overhaul before Australia’s biodiversity can receive serious protection.