National Review of Environmental Regulation - Interim Report A report outlining current and proposed reform activities for environmental ...
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National Review of Environmental Regulation
Interim Report
A report outlining current and proposed reform activities for environmental regulation nationally
and presenting opportunities for further consideration
Published: March 2015Contents
Contents ............................................................................................................................................... 2
Executive Summary .............................................................................................................................. 3
1. Introduction ..................................................................................................................................... 4
2. Context and drivers for the Review.................................................................................................. 4
3. Summary of current and proposed reforms .................................................................................... 5
Risk-based regulation and proportionate interventions.................................................................. 6
Harmonisation and removal of duplication ..................................................................................... 9
Strategic and landscape scale approaches..................................................................................... 12
Market based instruments and other innovative approaches....................................................... 14
4. Summary of Reforms Themes ........................................................................................................ 15
Biodiversity (native vegetation reform, biodiversity offsetting, and intersection of biodiversity
conservation with land use planning) ............................................................................................ 15
Chemicals ....................................................................................................................................... 20
Integrated waste management and product stewardship............................................................. 20
5. Reform opportunities that warrant further investigation ............................................................. 22
Australian Biodiversity Conservation Strategy Review .................................................................. 22
Strategic Assessments .................................................................................................................... 23
One-Stop-Shop Model for Environmental Approvals .................................................................... 23
Common Approach to Biodiversity Offsetting ............................................................................... 23
Nationally Consistent Approach to Threatened Species ................................................................ 23
Improved environmental information and data sharing................................................................ 23
Ongoing thematic investigations.................................................................................................... 24
6. Conclusion ...................................................................................................................................... 25
2|PageExecutive Summary
In April 2014 Environment Ministers agreed to build on existing reform efforts and identify unworkable,
contradictory or incompatible regulation and seek opportunities to harmonise and simplify regulations.
Seven thematic areas have been identified for assessment of potential reform opportunities encompassing:
threatened species listing processes; opportunities for better practice regulation; biodiversity regulation
(including offsets); chemicals; integrated waste management; product stewardship; heritage listing, and
simplification of environmental aspects of land use planning, including on Commonwealth lands.
The interim report has been prepared by the Commonwealth Department of the Environment in
consultation with jurisdictions and represents a synthesis of work completed or underway across
jurisdictions at a particular point in time. Recent elections in Victoria and Queensland have resulted in a
change in government and these jurisdictions, like others, will be evaluating opportunities for national
collaboration.
A stocktake of current reforms shows consistent trends across jurisdictions towards the adoption of better
practice approaches to regulation. Examples include adoption of risk-based regulation focussed on
proportionate interventions, policy harmonisation between jurisdictions, removal of regulatory duplication,
and implementation of one-stop shop approaches.
Opportunities exist to expand the use of strategic and landscape scale approaches to better manage the
intersection of biodiversity conservation and land-use planning regulations. Greater use of market based
instruments, conservation covenants, and engagement with regional communities could enhance delivery
of environmental services and leverage more private investment to protect biodiversity at both the
individual species level and a bioregional, landscape scale.
There is agreement about the need to develop a nationally consistent assessment approach to listing of
threatened species, based on consistent adoption and application of the International Union for
Conservation of Nature categories and criteria, as relevant to the Australian context. Implementation of
this reform will facilitate alignment of threatened species listing processes nationally.
Exploration of biodiversity conservation regulation, including threatened species assessment and listing
processes, also highlighted inefficiencies related to information management and storage. Current
limitations on our capacity to share and access environmental information are impeding our ability to
accurately and cost effectively monitor trends in biodiversity, which in turn is diminishing our capacity to
develop evidence-based policies.
The stocktake of existing reform activity shows significant work is underway in relation to the chemicals,
waste and product stewardship themes, with reporting to Ministers on various matters scheduled to occur
in 2015. Examination of these themes under this review, following completion and reporting around
current reform activities, will enable appropriate consideration of outstanding activities or identification of
new opportunities.
Following further discussions between senior officials, potential reform opportunities identified under the
National Review of Environmental Regulation may be considered by Environment Ministers in future.
3|Page1. Introduction
In April 2014, Environment Ministers agreed to the National Review of Environmental Regulation as an
important next step in environmental regulation reform, building on existing regulation reform approaches
currently underway across jurisdictions. Ministers supported the Review’s focus on identifying unworkable,
contradictory or incompatible regulation and seeking opportunities to harmonise and simplify regulations.
Several thematic areas for investigation of potential reform opportunities have been identified,
encompassing: threatened species listing processes; opportunities for better practice regulation;
biodiversity regulation (including offsets); chemicals; integrated waste management; product stewardship;
heritage listing; and simplification of environmental aspects of land use planning, including on
Commonwealth lands.
This interim report provides a snapshot of the substantial environmental regulatory reform effort being
undertaken by jurisdictions and identifies opportunities for further reforms to improve environmental
outcomes that might benefit from inter-jurisdictional collaboration.
Section 2 provides the context for the National Review of Environmental Regulation, section 3 summarises
reform activities by the strategic approaches being pursued, and section 4 details discussion of reform
activities by subject matter theme. Further reforms that might benefit from inter-jurisdictional collaboration
are discussed in section 5.
2. Context and drivers for the Review
Australian governments have had a focus on regulatory reform over a number of decades. 1 The Council of
Australian Governments first endorsed national principles and guidelines for standard setting and
regulatory action in April 1995 in response to industry criticism that Australia’s regulatory system was
unnecessarily complex, inconsistent, and imposed unnecessary costs for business. 2 The regulatory approach
proposed in these documents almost 20 years ago promoted the need for good policy design that first
questioned the need for regulatory intervention, and that if regulation was needed, it should impose the
least cost to implement and not impact on competition.
Nevertheless, research continues to highlight the need for governments to be vigilant in regard to
regulatory efficiency. The 2014 Productivity Commission report into Public Infrastructure highlighted the
important role governments have in creating a positive environment for investment, and recommended
that public stocktakes of regulation be undertaken every 10 years or so, and that these stocktakes
encompass regulations in all jurisdictions. 3 The report also noted that ‘business can find it difficult to
distinguish the jurisdictional source of regulatory problems, [and] often it is the accumulation of regulation
that is the main problem’. The economic benefit to the national economy from ensuring regulatory systems
are efficient and effective is substantial. 4
1
Productivity Commission, 2011, Identifying and Evaluating Regulation Reforms, Research Report, Canberra
2
Principles and Guidelines for National Standard Setting and Regulatory Action by Ministerial Councils and Standard-
Setting Bodies, Council of Australian Governments, April 1995.
3
Productivity Commission 2014, Public Infrastructure, Inquiry Report No. 71, Canberra.
4
Productivity Commission 2012, Impacts of COAG Reforms: Business Regulation and VET, Research Report, Canberra;
Productivity Commission modelling of the 17 competition reforms agreed under the COAG Agreement to Deliver a
Seamless National Economy found that GDP could increase by around 0.4 per cent (over $6 billion) a year, including
reduced costs to business of around $4 billion a year.
4|PageRecent examples of such programmes include the New South Wales Government’s red tape reduction
target and ‘one on, two off’ policy, the broad red tape reduction program that has been operating in
Victoria, the Queensland Government’s Greentape Reduction initiatives under the Environmental Protection
(Greentape Reduction) and Other Legislation Amendment Act 2012, the South Australian Government’s Red
Tape Reduction Programme 2006-2012 and more recent establishment of a dedicated Simpler Regulation
Unit within the Department of Premier and Cabinet, the Western Australian Government’s Reducing the
Burden review of the Red Tape Reduction Group and the Australian Government’s Cutting Red Tape
programme. The Australian Government has committed to reducing the total cost of unnecessary or
inefficient regulation by a net $1 billion a year. In the year to October 2014 opportunities identified for
national environmental regulation reform, once implemented, will contribute more than $500 million in
burden reduction towards this annual target. Such deregulation agendas improve the consistency, efficiency
and efficacy of environmental regulation throughout Australia.
New South Wales, Western Australia, Tasmania, South Australia and the Australian Government have
established regulator performance evaluation frameworks, which impose new or update existing
requirements to undertake regulation impact statements for new policy proposals. In Victoria, all regulators
are expected to perform in accordance with a specific Ministerial Statement of Expectations, to improve
clarity and accountability. In South Australia, all new or amended regulatory proposals require a regulatory
impact statement (RIS). South Australia has identified reducing regulatory burden as one of its top ten
economic priorities.
While noting the importance of environmental regulation, submissions to various Parliamentary and
Productivity Commission enquiries identified the need for:
- Clear and simple environmental regulation.
- Streamlined and better defined Commonwealth and State/Territory roles and responsibilities.
- Transparency in the purpose of environmental standards and certainty in the requirements to comply.
- Proportionality in environmental regulations should be commensurate with the risks of environmental
harm.
Australian governments and non-government organisations are adopting a range of new approaches to
managing our environment. This Review is an opportunity for Australia to build on these experiences and
identify further opportunities for reform that will maintain or improve environmental standards.
3. Summary of current and proposed reforms
Reform activities by governments can be categorised into one or a number of strategic approaches.
Types of reform activities include implementing greater flexibility in operational approvals to deal with
unintended negative consequences of regulation, developing guidelines to clarify regulation, improving
review processes, consolidating legislation, improving information requirements, and establishing regulator
performance frameworks to enable ongoing monitoring that better practice regulation principles are being
applied.
5|PageJurisdictional reform activities across four strategic approaches are outlined in this section. The four
strategic approaches include:
- Risk-based regulation and proportionate interventions
- Harmonisation and removing duplication
- Strategic and landscape scale approaches
- Market based instruments and other innovative approaches.
Detailed discussion of reform activities in terms of subject matter themes (e.g. biodiversity, chemicals,
and waste) is provided in section 4.
Risk-based regulation and proportionate interventions
Risk-based regulation is designed to be implemented according to the level of risk associated with particular
actions. For example, an activity or action that has been identified or assessed as a low risk of occurrence
and low risk of environmental impact may not be required to be reported on or monitored, thus ensuring
that low risk/impact activities are regulated with efficiency and allowing industry and regulators to
concentrate on activities of higher risk of occurrence and impact.
The Australian Government Department of the Environment (the Department) is developing a policy
framework to ensure conditions for environmental approvals under the Environmental Protection and
Biodiversity Conservation Act 1999 (EPBC Act) are guided by an outcomes and risk-based approach. This will
result in conditions on approved projects being tailored, fit-for-purpose and proportionate to the level of
environmental impact likely to result from the approved project. Such conditions provide business with
more incentive to develop efficient solutions.
The Department also uses risk-based prioritisation tools to help focus regulatory resources towards
achieving the greatest environmental benefit. In 2014, with the assistance of CSIRO, the Department
implemented the National Environmental Significance Threat and Risk Assessment (NESTRA) tool. NESTRA
ranks projects approved under the EPBC Act on the basis of relative risk of environmental impacts and the
likelihood that approval conditions will be breached. Those rankings inform the type, scale and frequency of
compliance monitoring responses. Investigations into serious non-compliance with national environmental
law are also informed by a risk-based case-prioritisation model based on the practice used by the Australian
Crime Commission. These are two examples of the way the Australian Government is targeting resources to
achieve higher-value compliance and enforcement outcomes, increasing scrutiny of projects that pose a
high risk to Australia’s environment and heritage and rewarding individuals and businesses who comply
with Australia’s environmental laws.
The Australian Capital Territory (ACT) Government has completed an environmental regulatory reform
program in reviewing its primary Environmental Act in 2014. The 2014 review of the Environment Protection
Act 1997 makes the legislation contemporary by aligning major provisions of the Act, creating a regulatory
framework commensurate to those of other Australian jurisdictions, and improving the efficiency and
effectiveness of the regulatory and enforcement mechanisms. As a result of the review, the ACT Legislative
Assembly passed the Environment Protection Amendment Bill 2014 in October 2014.
By making the legislation contemporary, the ACT is delivering its regulatory framework by focussing on and
addressing current and emerging issues in protecting the ACT’s natural and built environment. Cognisant of
the nature of the ACT’s environment, including limited heavy industry, the ACT has been able to utilise a
more proactive approach to managing potential and actual environmental impacts.
6|PageThe ACT also adopts a risk-based assessment method for authorised activities under the Act to improve the
efficiency of the process by incorporating appropriate review intervals. The adoption of risk-based
assessment for authorised activities has lifted unnecessary regulatory process from industry, businesses and
the regulator.
The New South Wales (NSW) Government has a number of major environmental regulatory reforms
currently underway. Many of these seek to introduce risk or outcomes-based regulation and more
proportionate interventions that reduce unnecessary compliance burden, improve flexibility and adaptive
responses, and increase stakeholder certainty and participation. Examples of reforms include: a
comprehensive review of biodiversity legislation; the new Biodiversity Offsets Policy for Major Projects;
coastal management reforms; marine estate management reforms; and the introduction of risk-based
licensing for industrial activities. In NSW, this work is reinforced through implementing the Quality
Regulatory Services Initiative (QRSI) which introduces five reforms agencies must comply with to make it
easier for business and individuals to engage with NSW regulators and reduce the regulatory burden on
compliant businesses and individuals. QRSI reforms require agencies to enable electronic transactions,
provide clarity on processing timeframes and provide transparent appeal mechanisms to reduce
administrative burdens. The reforms also require agencies to promote a risk based approach to compliance
and enforcement and have a greater focus on regulatory outcomes to avoid unnecessary requirements
being imposed.
The NSW Environment Protection Authority (EPA) review of its environment protection licensing framework
led to the development and introduction of a risk-based licensing system for all premises that hold
environmental protection licences under the Protection of the Environment Operations Act 1997. Risk-based
licensing will commence on 1 July 2015 and aims to ensure that all environment protection licensees
receive an appropriate level of regulation based on the environmental risk of the activity. This will allow the
EPA to better target regulatory efforts towards high risk and poor performing licensees. The regulatory
framework also provides incentives for licensees to improve environmental performance and compliance as
risk ratings are tied to licence fees.
The NSW EPA also conducted an extensive review of the waste regulatory framework and as a result, a
remade Protection of the Environment Operations (Waste) Regulation 2014 commenced on
1 November 2014 after extensive public consultation. The new regulation will modernise the NSW waste
industry, establish a level playing field for legitimate businesses and prevent unlawful activities across
the sector.
As part of the Queensland Government’s overarching commitment to reducing red tape for business and
industry, the environment portfolio is implementing a comprehensive regulatory reform programme, the
Greentape Reduction Project. The risk-based approach is a fundamental principle of this Project. Reforms
are progressively being implemented for environmental licensing processes, heritage protection, waste
management, contaminated land, offsets, and nature conservation permitting.
These reforms include: deregulating the lowest risk activities; introducing standard conditions that can
apply ‘off the shelf’ for eligible activities; development of outcomes focussed model conditions for mining
and petroleum activities, and composting and sewage treatment plants; removing public notification of
environmental authorities for low-risk mining activities; regulation of only higher risk wastes with the
potential to cause environmental harm; and streamlining processes for low risk or sustainable activities
posing minimal threat to protected plants.
7|PageSouth Australia has undertaken considerable reform aimed at reducing regulatory burden. For example,
leading practice regulatory impact assessment has been introduced and a whole of government red tape
reduction program ran from 2006 – 2012. This was followed by the establishment of the Simpler Regulation
Unit in the Department of the Premier and Cabinet to facilitate achievement of the State Government’s
economic priority to make South Australia the best place to do business. The Simpler Regulation Unit works
with the business community to remove unnecessary regulatory burden and to create a system of
regulation that supports innovation, new investment and jobs. The Unit works in partnership with relevant
line agencies to implement reforms and all government regulatory activities which impose significant costs
or delays on business are in scope.
As part of this process South Australia is moving towards a standard risk-based approach to environmental
assessment in all its environmental impact assessments. Already in place, the Petroleum and Geothermal
Energy Act 2000 incorporates a number of elements which apply risk-based approaches to regulation.
This includes approving environmental objectives and assessment criteria for an activity to achieve and a
risk-based assessment framework to determine the level of significance of a project. The compliance
approach is based on an operator compliance standard.
The South Australian EPA is reviewing the Water Quality (Environment Protection) Policy under the
Environment Protection Act 1993. The review will result in a more flexible policy that is risk-based and
regulates based on potential or actual environmental harm. The outcome will be more flexible in the
management of environments with a focus on continual improvement.
Tasmania is taking a comprehensive approach to its planning reform agenda and reviewing all elements of
the planning system to ensure that planning decisions are appropriate, consistent and efficiently made
through a single state wide planning system. The planning scheme will use standards which are appropriate
and proportionate to the circumstances and community expectations. In a separate reform process,
a Regulation Reduction Coordinator has been appointed to lead the red and green tape reduction
programme which includes an annual regulation audit. The target is a 20 per cent reduction in red and
green tape. The regulatory audit process will ensure that regulatory interventions are appropriate and
proportionate to the degree of environmental risk to be managed. The Tasmanian EPA has reviewed its
compliance policy and introduced a more systematic approach to risk-based regulation. It has also
established an annual review cycle for guidance documentation to improve materials provided to
development proponents.
In Victoria a risk-based approach to regulation has been applied to a number of reforms. For example,
administration of coastal consents has been reviewed and streamlined to focus regulatory effort on those
activities with higher risks. As a result, coastal businesses, communities and managers are able to carry out
most lower risk activities and works on the coast without applying for individual consent, and regulatory
burden for medium risk activities has also been reduced.
The formal introduction of a risk-based approach in Victoria’s native vegetation permitted clearing
regulations has also streamlined the assessment process for the majority of clearing applications falling into
the low risk pathway. The Victorian Government has announced a further review of the native vegetation
permitted clearing regulations to ensure that the regulations sensibly protect sensitive native vegetation.
The review and amendment of the environmental regulatory framework for commercial timber harvesting
on Public Land, under the Victorian Sustainable Forests (Timber) Act 2004, is another example, which has
resulted in a flexible and tailored approach to matters of non-compliance that is proportionate to the
environmental impact and culpability of the offender.
8|PageWestern Australia’s Environmental Protection Authority has introduced a risk-based approach to
environmental impact assessment based on the concept of environmental significance; minimising
duplication in approval processes by deferring the consideration of factors to other decision-making
processes where these deliver the same outcome; and application of outcome-based conditions through
the approval process.
A program is being implemented to improve the consistency, quality and effectiveness of
Western Australia’s industry regulation through the Re-Engineering for Industry Regulation and the
Environment (REFIRE) process. REFIRE reform products include templates for licences, work approvals,
decision documents and administrative process improvements.
Harmonisation and removal of duplication
Many existing regulatory reform processes have a focus on harmonisation and streamlining to remove
duplication. This is occurring both within and between jurisdictions.
One-stop shop approaches
The Australian Government has committed to a one-stop shop policy for environmental approvals to reduce
duplication between Commonwealth and State and Territory environmental legislation. This model is
intended to provide equivalent environmental protection through a simpler, streamlined process.
This type of process, aimed at achieving at least equivalent environmental outcomes with less regulation,
may be a model for a broad range of environmental measures in the future.
Threatened species assessment and listing
The 2013 Senate Standing Committee on Environment and Communications report Effectiveness of
threatened species and ecological communities’ protection in Australia recommended that the
Commonwealth, State and Territory governments prioritise work to reduce duplication and inconsistency
between the EPBC Act list and State and Territory lists of threatened species. It also recommended that
governments work to establish uniform and integrated processes for the future listing of threatened species
and communities. The 2009 Report of the Independent Review of the EPBC Act included similar
recommendations.
Differences between jurisdictions’ species listing legislative frameworks have resulted in the development
of nine separate threatened species lists that do not align in relation to the taxa that can be listed, the
capacity to list critical habitat, and the threat categories used. Different assessment methodologies are also
adopted in each jurisdiction, including the range at which the species listing assessments occur
(national versus regional), and the standard of evidence required in the assessment of conservation status.
These differences have contributed to substantial variation in the species (both number and diversity) that
are listed in each jurisdiction. The total number of species listed under all State and Territory lists is difficult
to quantify, however, it is estimated to be in the order of 5,000. The number of species listed as threatened
under the Environment Protection and Biodiversity Conservation Act 1999 is 1,749. This disparity creates
significant uncertainty about the overall scale of the problem and diminishes the ability to target limited
resources effectively and efficiently to species and habitats of greatest concern.
9|PageThis Review has considered and evaluated options to reform species assessment and listing processes,
taking into account the administrative costs of implementing reforms and the environmental and regulatory
burden reduction benefits. This initial evaluation indicates that while there is likely to be little regulatory
burden reduction from reforming threatened species assessment and listing processes, there could be
demonstrable benefits for the management of threatened species and ability to prioritise the allocation of
resources to recovery actions for priority species and ecological communities.
There is agreement among all jurisdictions on the need to develop a common assessment methodology to
underpin the listing of threatened species, based on consistent application and adoption of the
International Union for Conservation of Nature Red List categories and criteria, as relevant to the Australian
context. Implementation of this reform will facilitate alignment of threatened species lists over time
through harmonisation of assessment approaches and regulatory arrangements. Mutual accreditation of
assessment and listing processes is anticipated to be an outcome of this reform and could be achieved
through a range of mechanisms including, for example, bilateral agreements.
The ACT Legislative Assembly recently passed the Nature Conservation Act 2014. The Act builds upon the
strong framework provided by the previous Nature Conservation Act 1980. New provisions for threatened
species align threatened species listing more closely with the IUCN categories for threatened species.
Criteria for listing of threatened species will be included in a statutory instrument. Over time, this will allow
for harmonisation of the ACT list with those of the Commonwealth.
Other examples of regulatory harmonisation
The ACT is an active participant in the National Framework for Compliance and Enforcement Systems for
Water Resource Management. This National Framework harmonises water licensing, trading and
compliance processes across jurisdictions, and reduces costs to business and regulators. Another ACT
initiative relevant to regulatory harmonisation is the Nature Conservation Act 2014, which explicitly allows
for the adoption or incorporation of plans and strategies from other jurisdictions, for example recovery
plans, as meeting requirements for action plans for threatened species in the ACT. This reduces
unnecessary duplication.
The Northern Territory Government has committed to reducing red and green tape through a balanced
approach that is sensitive to environmental issues and also promotes economic and social developments.
Initiatives that will lead regulatory reform include a red tape abolition squad with a role to challenge all
forms of legislative, regulatory and administrative red tape. The squad will be working closely with
business, industry, government agencies and non-government organisations. A red tape reduction business
advocate and hotline service provides a contact point and support service for anyone experiencing
difficulties in obtaining decisions, licences, approvals or information from the Northern Territory
Government.
The Northern Territory Government has also commenced a review of key legislation to ensure it is
contemporary and adequate to deal with the challenges of delivering sustainable development. The review
is broadly aimed at examining the effectiveness of existing regulation and identifying improvements to the
regulatory framework. The review is being conducted with a view to: improve environmental outcomes;
reduce green tape; remove duplication; and address gaps in the existing framework.
10 | P a g eIn Queensland a significant area of reform relates to offsets policy where five separate policies have been
replaced with a single environmental offsets framework. The new framework is outcome-based and aligns
offsets across all three levels of government. The new policy allows financial settlement, land-based offsets,
and offsets delivered as actions in a Direct Benefit Management Plan or a combination of these
approaches. The offsets reform provides greater opportunity for landholders to receive income in return
for voluntarily agreeing to manage their land, or part of their land, as an offset.
Harmonisation and removal of duplication is the dominant reform approach being applied by
South Australia. Consideration is being given to removing the threatened species schedules from the
National Parks and Wildlife Act 1972 so they can be amended more frequently, thus ensuring that they
reflect the current conservation status of the species listed. The intent will be to provide better alignment
with other jurisdictions, as well as IUCN, which will deliver streamlining for businesses when considering
impacts to threatened species under bilateral or cross border assessment processes.
In Victoria reform initiatives have also led to improvements in operational practice and streamlining of
administration. For example, the Victorian EPA Business Services Reform process has streamlined
administration through the ability for industry to lodge and view more information via an online portal,
and improved internal workflows and information management.
The completed 2013-14 components of the EPA Audit Reform and EPA Approvals Reform are other
examples of where improvements to administrative efficiency and greater stakeholder certainty are
reducing regulatory burden.
In May 2012, the NSW Government announced a remake of the four Integrated Forestry Operations
Approvals (IFOAs), which integrate the regulatory regimes for environmental planning and assessment,
protection of the environment and threatened species conservation, into a single new IFOA for coastal
NSW. The objectives of the coastal IFOA’s remake are to reduce the costs of implementation and
compliance and to improve the clarity and enforceability of IFOA conditions. The NSW Government has
committed to delivering these objectives with no net change to wood supply and maintenance of
environmental values.
South Australia has been running a number of regulatory improvement projects as part of the
Change@SouthAustralia program coordinated through the Office for the Public Sector. The projects are
aimed at improving productivity, citizen engagement and public benefits for South Australians within
accelerated timeframes (90 days). More than twenty projects have so far been completed and included a
project to reduce red tape for South Australia’s Tuna Industry. This project has significantly reduced the
regulatory burden for South Australia’s Bluefin tuna industry by speeding up the time it takes to gain
approvals for a tuna license each year and to reduce the cost to tuna farmers by aligning regulatory
requirements with the annual fishing and farming cycle.
Western Australia has addressed duplication and harmonisation through the removal of unnecessary and
duplicative appeals and streamline assessment processes in the Environmental Protection Act 1986; the
revision of the Environmental Protection Authority’s administrative procedures in 2010 and 2012 to
streamline and improve the environmental impact assessment process and reduce the number of levels of
assessment from four to two; and, the introduction of the streamlined assessment on proponent
information level of assessment.
11 | P a g eStrategic and landscape scale approaches
In Australia a landscape scale approach to biodiversity conservation was first proposed in the 1999 National
Strategy for the Conservation of Australia’s Biological Diversity. It is reiterated in the current
Australian Biodiversity Conservation Strategy: 2010-2030.
Landscape scale approaches to biodiversity conservation can be an effective scale at which to address
threats to biodiversity values and to restore/rehabilitate ecological processes. According to Pressey (1996),
the fundamental aim of a landscape approach is to provide connections and corridors between patches of
remnant vegetation and to manage the ‘unreserved matrix’ and thus the need for mechanisms that provide
for biodiversity conservation on private and public land. 5 Landscape scale biodiversity programs are an
important element of a comprehensive approach to biodiversity management and complement
management strategies that focus at the species or genetic level.
Cumulative impacts from development proposals can also be considered at the landscape scale. 6 The
increased use of landscape-scale planning and assessment mechanisms, particularly bioregional planning
and strategic assessment, was identified as an opportunity in the Independent review of the Environment
Protection and Biodiversity Conservation Act 1999.
As part of the Australian Government’s One-Stop Shop, the Australian Government and the States and
Territories have committed to the greater use of strategic assessments. Recent examples of successful
strategic assessments include:
• the Melbourne Urban Growth Boundary, which will achieve an estimated saving to business of
$542 million (over 20 years) and protection of over 15,000 hectares of new grassland reserves.
• the Western Sydney Growth Areas, which will achieve an estimated saving to business and government
of $1.63 billion and the conservation of priority woodlands on the Cumberland Plain.
• the Molongolo Valley Urban Development in the ACT, which will achieve estimated savings to business
and government of $253 million.
Opportunities also exist to undertake more strategic assessments in partnership with industry, for example
the strategic assessments currently being undertaken with BHP Billiton and Hammersley Iron Ore Pty Ltd in
the Pilbara region, Western Australia.
The NSW Government uses landscape scale assessment tools such as biodiversity certification and strategic
assessments where appropriate to reduce regulatory burden, improve environmental outcomes and
improve stakeholder certainty. For example, NSW is currently working with the Commonwealth on the
Upper Hunter Strategic Assessment to improve the planning of new or expanded coal mines which have the
potential to impact on biodiversity.
5
Pressey B, 1996, Bioregional planning for the conservation of biodiversity – putting theory into practice – past and
present, in Breckwoldt R (Ed) Approaches to Bioregional Planning, Part 1, Conference proceedings, 30 October – 1
November 1995, Melbourne
6
Pope and Moore, 2013, Planning and assessment for biodiversity conservation at a landscape-scale: an evaluation of
current approaches and opportunities in Australia, NERP Landscapes and Policy Hub
12 | P a g eThe NSW Government is also conducting a two-stage coastal management reform process. Stage one
focused on regulatory relief to landowners and councils dealing with erosion impacts and is now largely
complete. Stage two of the reforms is now underway and has a strategic focus that addresses three key
areas: establishing a simpler and more integrated legal and policy framework for coastal management;
improving support for councils to assist local decision making; and identifying sustainable funding and
financing options for coastal management. The coastal reforms are being developed in the context of the
Government’s local government reforms and strategic approach to land use planning, to ensure an
integrated approach to coastal management.
A number of reforms have been proposed to the Northern Territory Environmental Assessment Act 1982 to
create a robust, contemporary environmental impact assessment framework. The proposed reforms
include adoption of strategic environmental assessments to provide for improved landscape scale analysis
of potential environmental impacts. It is proposed that businesses save time and resources by being able to
use the results of strategic assessments rather than completing individual project assessments. Strategic
assessments will also provide certainty to businesses and other stakeholders as to the appropriate types of
development within the strategic assessment area.
Queensland’s planning framework is currently undergoing a significant reform process which will generate
substantial savings through reducing duplication and regulatory burden. Amendments to the Queensland
Sustainable Planning Act 2009 have already contributed to these savings.
In South Australia landscape scale approaches are likely to be maintained and possibly modified under
current land planning reforms. An Expert Panel on Planning Reform has been established to review the
state’s planning system, its intersections with other relevant legislation and to propose options for system
reform. The final report will outline a range of recommended changes to the state planning system so that it
can better meet South Australia’s current and future land use and development challenges.
The Tasmanian Government’s planning reform agenda is also directed to providing a strategic approach to
decision making in Tasmania to ensure that decisions are consistent and appropriate and are delivered
through a simpler, cheaper, faster and fairer planning system. The development of new state policies will
provide a strategic framework for the state wide planning scheme and inform regional land use strategies
and the spatial application of zones.
The Western Australian Swan and Canning Rivers Management Act 2006 is being amended to amalgamate
the roles and functions of the Swan River Trust with the Department of Parks and Wildlife and allow the
management of the Swan Canning Riverpark to be integrated with the conservation, protection, and
promotion of national parks, marine parks, and reserves already managed by Parks and Wildlife.
The Western Australian and the Australian Governments are progressing a strategic assessment of
development within the Perth and Peel Regions, which are projected to increase to 3.5 million people
by 2050. The strategic assessment provides an opportunity to undertake whole-of-government planning to
integrate environmental, social and economic goals across the landscape.
13 | P a g eMarket based instruments and other innovative approaches
Market based instruments are tools that use market-like approaches to influence the behaviour of business
to promote better environmental outcomes. These instruments utilise the economic principles of markets
and can be an efficient way to mobilise investment in sustainable production and biodiversity conservation
or drive behavioural change to achieve environmental outcomes. Biobanking, also referred to as
conservation, species or habitat banking, is a market based instrument that uses a formal market to
facilitate the trade of biodiversity conservation. While this trade could include the sale and purchase of
biodiversity conservation for the purposes of regulatory offsetting, it could also include the sale and
purchase of biodiversity conservation for other non-regulatory purposes such as philanthropy.
The ACT Government has introduced a number of market based schemes to promote renewable energy and
cost-effective energy saving activities, such as the Electricity Feed-in (Large-scale Renewable Energy
Generation) Act 2011 and the Energy Efficiency (Cost of Living) Improvement Act 2012. These market based
mechanisms are leading Australian initiatives.
The NSW Government has in place several innovative approaches to the management of pollution.
These include the load-based licensing scheme which provides a financial incentive and price signal to go
beyond compliance with licence conditions and use the best available actions to reduce pollution.
This scheme is currently under review to improve its effectiveness, efficiency and ease of use by licensees.
A second example is the Hunter River Salinity Trading Scheme, a World-leading cap and trade credit
scheme, that reduces salinity in the Hunter River. The scheme is also currently under review to improve its
effectiveness, efficiency and ease of use.
The NSW Government is using market based instruments in its biobanking scheme and as part of the new
Biodiversity Offsets Policy for Major Projects. This policy aims to improve environmental outcomes, reduce
regulatory burden, and improve flexibility and industry participation. The Biodiversity Offsets Fund,
currently being developed, will complement the offsets policy and further facilitate market based options.
Following a successful pilot project conducted in 2013, the Queensland Government has implemented a
voluntary market-based mechanism for nutrient management which offers an alternative investment
option for regulated point source operators to manage their water emission requirements, while delivering
water quality improvements. The pilot project used alternative nutrient reduction actions to manage
additional nitrogen discharges from a sewage treatment plant as a result of local population growth.
The company invested almost $1 million to repair 500 metres of eroded riparian corridors located close to
the plant. The nitrogen savings will allow the plant to continue operating safely at its current capacity in
the short-term—without undertaking expensive upgrades, which were estimated to cost $8 million.
In Tasmania, investors and development proponents invest in nature conservation through covenants, land
management agreements, environmental offsets, species recovery or management programs and
conservation research.
Victoria has made use of market based approaches to biodiversity regulations since the introduction of
native vegetation clearing controls in 1989. Key features of the offset market in Victoria include scientific
metrics for measuring the condition and extent of native vegetation and pre-defined rules for calculating
offset requirements.
14 | P a g eReverse auctions are another innovative approach to biodiversity conservation that has been trialled for
environmental purposes in Australia. Reverse auctions involve sellers competing to supply goods or services
for sale to a single buyer enabling buyers to locate the most competitive sellers.
For reverse auctions where the goal is to purchase environmental goods or services, bids are specified in
terms of cost per environmental outcome achieved and are then ranked from lowest to highest, allowing
the administrators of the auction to determine which bids are most competitive. 7 Benefits associated with
reverse auctions include: cost reductions; encouragement of business efficiencies; and establishing a level
playing field to enable participation of small suppliers. In markets with multiple sellers and a single buyer,
reverse auctions are considered a mechanism to efficiently allocate a limited budget. According to the
World Resources Institute the nature of reverse auctions makes them cost-effective as they allow auction
administrators to identify and purchase the lowest cost environmental outcomes. The key concern
associated with reverse auctions is the threat of collusion by tendering organisations/individuals.
The Australian Government has initiated the Reef Trust Wet Tropics Tender as part of its $40 million
Reef Trust investment. The Reef Trust Tender – Wet Tropics is a $5 million Programme that provides
incentives to sugar cane farmers to improve their nitrogen use and efficiency and farm sustainability.
A market-based competitive tender (or reverse auction) will be used to allocate funding through a
procurement process. Tenders received from farmers will be assessed competitively and ranked in order of
an Environmental Benefits Index. Those that offer the greatest value for money, the most cost-effective,
will be prioritised for funding. The acquisition of $3.1 billion in water entitlements for the Murray-Darling
Basin is another example of a reverse auction implemented by the Australian Government.
4. Summary of Reform Themes
This section provides information on existing reform processes under thematic areas identified for specific
focus during this Review: biodiversity, chemicals, and waste.
Biodiversity (native vegetation reform, biodiversity offsetting, and intersection of
biodiversity conservation with land use planning)
Despite significant regulatory capacity to impose conditions on developments to minimise harm and
conserve biodiversity, for example through the protection of threatened species and ecological
communities and limits on land clearing, successive State of the Environment Reports have identified
declining national biodiversity. Biodiversity continues to decline despite the considerable investment
nationally in biodiversity conservation policies and programmes.
Over the past five years a number of reviews and audits of Commonwealth environmental policy and
regulation have been implemented with many identifying opportunities for reform and/or streamlining.
Reviews undertaken by Parliamentary Committees, the Australian National Audit Office, the Productivity
Commission, and independent statutory reviews and internal departmental investigations have harnessed
information, expertise and opinion from all sectors to cover the breadth of the environment agenda.
7
Greenhalgh, S. Guiling, J, Selman, M, and St John, J. 2007, WRI Policy Note – Environmental Markets: Reverse
Auctions No. 3, Paying For Environmental Performance: Using Reverse Auctions to Allocate Funding for Conservation,
http://www.wri.org/sites/default/files/pdf/pep_reverseauction.pdf - accessed 13 Nov 2014
15 | P a g eKey reviews include:
• House of Representatives Standing Committee on the Environment Inquiry into Australia’s
biodiversity in a changing climate (2013)
• Senate Environment and Communications References Committee Inquiry into the effectiveness of
threatened species and ecological communities’ protection in Australia (2013)
• Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (2009)
• Senate Inquiry into the history, appropriateness and effectiveness of the use of environmental
offsets in federal environmental approvals in Australia (2014)
• Senate Standing Committee on Environment, Communications and the Arts Inquiry into the
operation of the Environment Protection and Biodiversity Conservation Act 1999 (2009)
• Productivity Commission Inquiry Report Major Project Development Assessment Processes (2013).
Many of these reviews have considered biodiversity issues and made recommendations to guide future
biodiversity policy and regulation. Biodiversity issues covered by recommendations include landscape scale
approaches to biodiversity conservation and management, threatened species and ecological community
listing (see section 3 above), environmental assessments and approvals, strategic assessment approaches,
environmental offsets, monitoring and evaluation and information management.
Many jurisdictions identified reform activities under the theme of biodiversity, with a particular focus on
terrestrial biodiversity, native vegetation management, and biodiversity offsetting.
The One-Stop Shop reform to environmental assessment and approvals under the EPBC Act has progressed
environmental regulatory reform, however there remains considerable scope for further biodiversity
regulation reform across jurisdictions. This is particularly evident in areas such as landscape scale
approaches, environmental offsets and information management where multiple reviews reach consistent
conclusions about the need for reform or streamlining.
In 2015 the Australian Government will, in collaboration with States and Territories, review
Australia’s Biodiversity Conservation Strategy. This review presents a vehicle through which future reform
opportunities may be identified and prioritised. Alternative policy instruments through which to implement
Australia’s obligations and commitments will be considered as part of the review.
The ACT Nature Conservation Act 2014, referred to in section 3, provides a strategic focus on species and
ecosystem management through a range of statutory provisions, including giving statutory effect to the
Nature Conservation Strategy which must incorporate landscape scale approaches to biodiversity
conservation and explicitly consider landscape connectivity.
In December 2014, the New South Wales Government received the Independent Biodiversity Legislation
Review Panel’s final report on the outcomes of its comprehensive review of biodiversity legislation,
encompassing the Native Vegetation Act 2003, Threatened Species Conservation Act 1995 and other Acts
and regulations that protect native animals and plants in NSW. The Panel’s report contains
43 recommendations for establishing a simpler, streamlined and more effective legislative framework that
will facilitate the conservation of biodiversity, support sustainable development and reduce red tape.
If accepted, the panel’s recommendations are likely to result in major reforms to the laws and their
associated regulations.
16 | P a g eBiosecurity SA, in partnership with regional Natural Resources Management Boards and the Department of
Environment, Water and Natural Resources, is leading a review of declared plants under the Natural
Resources Management Act 2004. As a result, all declared plant policies will incorporate current best
practice weed management and a risk management approach.
The outcomes will be increased effectiveness of weed management by NRM Boards, maximised benefits
from investment in weed control by landowners and state agencies, and improved consistency in plant
declarations at State and regional levels.
As discussed in section 3 above, Tasmania is implementing a comprehensive planning reform agenda which
will result in streamlined processes for amending planning schemes, a review of major project approval
processes, effective targeting of effort in accordance with risk to the environment, and better guidance for
proponents on assessment expectations.
The Western Australian Government has committed to the replacement of the outdated
Wildlife Conservation Act 1950 with new biodiversity conservation legislation Including increased penalties;
clearer standardised assessments, verification, and decision making, including timelines; a focus on
encouragement for positive conservation actions; enhanced special protection for whales, dugongs and
dolphins.
Native vegetation reforms
Over the past 20 years or so, regulatory regimes have evolved in each State and Territory with an emphasis
on continuous improvement. Regulatory approaches adopted in some jurisdictions have progressively
strengthened the legislation controlling the clearing of native vegetation on private and public land.
Reform of native vegetation regulations has been an area of reform for a number of jurisdictions.
The Northern Territory has reduced approval time for land clearing applications. Since 2013 applications
are processed within 8-14 weeks of lodgement, as opposed to the up to six months previously. This was
achieved by ensuring matters outside the requirements of the relevant legislation were no longer
considered during internal assessment processes.
South Australia is conducting a ‘Review of Native Vegetation Regulations’. The current regulations are
expiring which provides an opportunity to give broader consideration to how the regulations can be
adjusted and improved in the future. South Australia’s longer term reform process has commenced with
the aim of streamlining environmental regulations and providing clarity for businesses.
As previously mentioned, the Victorian Government has announced a further review of Victoria’s native
vegetation permitted clearing regulations to ensure that the regulations sensibly protect sensitive native
vegetation.
The Western Australian Government amended the Environmental Protection (Clearing of Native
Vegetation) Regulations in 2013 to provide for greater flexibility for landholders through extensions to the
exemption time frame for maintaining previously cleared areas from ten years to twenty years and
increasing the area of prescribed limited clearing from one to five hectares each year.
This has reduced costs for small businesses and helped to address the Government’s election commitment
to remove regulatory barriers that inhibit progress for farmers. The Western Australian Government is
pursuing amendments to the clearing provisions of the Environmental Protection Act 1986 to provide
appropriate flexibility for dealing with trivial clearing without compromising environmental outcomes.
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