Regulator failing to monitor environmental laws

The Environment Department is failing to properly administer Australia's national environment protection laws, an audit has found. Picture: Sitthixay Ditthavong
The Environment Department is failing to properly administer Australia's national environment protection laws, an audit has found. Picture: Sitthixay Ditthavong

Australia's environmental protection regulators are failing to properly monitor the conditions they set when allowing development to proceed in areas of national significance, a scathing audit has found.

Almost eight in 10 decisions they made also were either error-riddled or failed to protect vulnerable ecosystems as promised.

Days out from the release of the interim findings of a once-in-decade review of the Environment Protection and Biodiversity Conservation Act 1999, the Australian National Audit Office has found the Department of Agriculture, Water and the Environment is failing to administer the laws efficiently or effectively.

More than 6000 referrals have been made under since the Act came into effect in 2000. Of those, around 1000 projects have been approved with conditions.

However the department had glaring deficiencies in its compliance monitoring and enforcement arrangements, Auditor-General Grant Hehir said.

Its absence of reporting, monitoring and evaluation left the department and others with no way of knowing how areas of national environmental significance were being protected by its actions.

The department did not even have a map of all of the offsets it had approved - a key feature of the legislation.

Plans to create an offset mapping system were abandoned due to "changes in resourcing priorities".

In July 2019, the department stopped loading offset locations into its databases altogether.

"The department is unable to separate the effect of its regulation from other factors, such as local, state and territory government activities, other government programs, and factors such as introduced species and extreme weather events," Mr Hehir said.

"Without this information, the department is unable to provide assurance that its administration of referrals, assessments and approvals is efficient, effective or contributing to the objectives of the EPBC Act."

Mr Hehir also uncovered a high error rate in the decisions being made by the department, exposing them to the risk of having decisions overturned in court.

A sample of 43 approvals obtained by the audit office issued over a four-year period found 79 per cent had at least one condition that was either non-compliant with the department's guidelines or contained clerical or administrative errors.

Some approvals were missing a required clause that the department be notified when work on the site was starting.

Others changed some standard conditions but not others, while others contained poorly written conditions with spelling and grammatical errors.

"Poorly written or non-compliant conditions may impact the ability of the condition to be monitored or protect matters of national environmental significance," the audit office said.

This is not a hypothetical situation. In May 2017, the department gave the green light to a development in Cairns, even though it would have a substantial impact on the EPBC-listed Spectacled Flying-fox due to disturbance during construction and the removal of roost trees.

The department had placed conditions on the construction, restricting the amount of vegetation that could be cleared, the inclusion of "rest days" - without actually saying what that entailed - and requiring the developers to make sure there was "no significant increase" in the abandonment of juvenile flying-foxes.

The department received multiple complaints about these conditions being breached. Wildlife carers found 426 abandoned juvenile and 334 dead flying-foxes. The CSIRO also told the department the number of deaths was significantly higher than previous years.

However internal memos showed the department was unable to take compliance action because it could not determine whether a "significant increase" in the abandonment had occurred, because of the way the conditions were written. The department ultimately concluded there was no evidence that the deaths and abandonment could be linked to the development.

Between 2015 and 2020, the Federal Court found five assessment and approval decisions made by the department contained legal errors. In another case, the minister was required to settle with the claimant and change the conditions of approval.

The audit office examined each of those cases and found if the department had followed its own procedural guidance, the errors would not have been made.

"The legal errors were therefore caused by the department's non-compliance with its procedural guidance," the audit office said.

The audit comes ahead of an interim review of the environmental laws being released next week, being led by Professor Graeme Samuel.

The laws have drawn the criticism of business groups and environmentalists alike, with some describing the system as fundamentally broken.

Prime Minister Scott Morrison has already signalled he wants to slash approval times under the Act by bringing in a one-touch system to green-light major projects.

The audit found decision-makers on average missed their statutory approval timeframe by a whopping 116 days.

The audit office found the manual used by the department erroneously stated there was no time limit for processing requests to reconsider a referral decision under the Act, when in fact the minister had to do so within 20 business days.

This story Regulator failing to monitor environmental laws first appeared on The Canberra Times.


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