Legislation, policy and international obligations

Environmental management in Australia is guided by policy and legislation administered at local, state and territory, and national levels, ranging from broad programs to sector-specific regulation (e.g. mining, commercial fishing, offshore oil and gas industries, urban development). Legislation often reflects commitments made under international conventions (e.g. Convention Concerning the Protection of the World Cultural and Natural Heritage, United Nations (UN) Convention on the Law of the Sea), as well as more specific regulations tailored for Australia’s unique environment.

Assessment Legislation, policy and international obligations
2021
2021 Assessment graphic showing that management is partially effective, meaning that management measures have limited impact on maintaining or improving the state of the environment. The situation is stable.

Australia is signatory to many international agreements, which are reflected in legislation and programs. Implementation of our obligations can be effective, although in some areas the rate of progress is inadequate. A recent review of the Environment Protection and Biodiversity Conservation Act 1999 found that the Act and its implementation were insufficient to protect our environmental values. The legal framework in Australia for Indigenous rights and heritage is regarded as inadequate to fulfil our obligations to care for Country.
Assessments of management effectiveness range from partially effective to effective
Assessments of trend range from deteriorating to improving
Related to United Nations Sustainable Development Goal targets 2.3, 6.4, 6.5, 8.4, 8.9, 11.4, 11.6, 12.2, 12.4, 13.1, 14.2, 14.5, 14.b, 15.1, 15.7

Legend
How was this assessment made

International obligations and treaties

Australia is a signatory to many international agreements and conventions related to environmental protection and conservation. These international agreements impose obligations on Australia, which drive actions to deal with the specific matters of concern of the agreement. Our obligations and actions are often reflected in national, and state and territory legislation or in government programs.

International environmental and heritage agreements that Australia has committed to are:

  • Conservation and protection
    • Intergovernmental Science–Policy Platform on Biodiversity and Ecosystem Services 2012
    • Convention on Biological Diversity and the Nagoya Protocol 2010
    • Forum on Forests 2000
    • Montreal Process for the Conservation and Sustainable Management of Temperate and Boreal Forests 1994
    • Convention to Combat Desertification 1994
    • Convention on Biological Diversity 1993
    • Convention on the Conservation of Antarctic Marine Living Resources 1980
    • Convention on the Conservation of Migratory Species of Wild Animals 1979
    • Convention Concerning the Protection of the World Cultural and Natural Heritage 1972
    • Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat 1971
    • International Council on Monuments and Sites 1965
    • Antarctic Treaty System 1959
    • International Plant Protection Convention 1951
    • International Union for Conservation of Nature 1948 (nonbinding)
  • Development and industry
    • 2030 Agenda for Sustainable Development
    • Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing 2016
    • International Tropical Timber Agreement 2006
    • International Treaty on Plant Genetic Resources for Food and Agriculture 2001
    • Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal 1992
    • Extractive Industries Transparency Initiative 2003
    • Convention on the Law of the Sea Agreement on Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 2001
    • Convention on International Trade in Endangered Species of Wild Fauna and Flora 1963
    • International Convention for the Regulation of Whaling 1946
  • Climate change
    • Paris Agreement under the United Nations Framework Convention on Climate Change 2016
    • Kyoto Protocol to the United Nations Framework Convention on Climate Change 1997
    • United Nations Framework Convention on Climate Change 1992
  • Rights and management
    • Declaration on the Rights of Indigenous Peoples 2007 (see Indigenous governance, rights and access)
    • Sendai Framework for Disaster Risk Reduction 2015–2030
    • World Trade Organization Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) 1995
    • International Seabed Authority 1994
    • Convention on the Law of the Sea 1982
  • Pollution and contamination
    • Minamata Convention on Mercury 2013
    • International Civil Aviation Organization Assembly Resolution 2010
    • Stockholm Convention on Persistent Organic Pollutants 2001
    • Australian and New Zealand Guidelines for Fresh and Marine Water Quality 2000
    • Montreal Protocol on Substances that Deplete the Ozone Layer 1987
    • International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978
    • Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972.

Climate change

The Australian Government has recently committed to net zero greenhouse gas emissions by 2050, and committed to a 26–28% reduction on 2005 levels of emissions by 2030 under the 2015 Paris Agreement. This represents Australia’s ‘nationally determined contribution’ (NDC) to global greenhouse gas emissions reductions. An earlier 2010 United Nations Framework Convention on Climate Change (UNFCCC) agreement (Cancun) commits Australia to a 5% decrease in emissions on 2000 levels by 2020.

NDCs vary from country to country, depending on their circumstances. It is currently not known whether Australia will achieve its target annual value in 2030.

Current and projected levels of success of national, and state and territory emissions abatement programs suggest that Australia’s national 2020 target (5% reduction below 2000 levels) has been achieved, although this will not be formally assessed and reported to the UNFCCC until April 2022. Emissions for the year to December 2020 were 20.1% below the 2005 baseline, following a dip in emissions due to the reduction in human activity during the COVID-19 pandemic lockdowns. This means that a further reduction of 6–8% on 2020 levels is required by 2030 to reach the target of 26–28% below 2005 levels. This will require a slightly faster annual rate of emissions reduction than that achieved between 2013 and 2019 (before the pandemic). A substantially increased rate of emissions reduction overall will be required to achieve net zero emissions by 2050 or earlier.

Sustainable development

The UN Sustainable Development Goals (SDGs) are a key component of a major international agreement that came into force in 2015 (the 2030 Agenda for Sustainable Development) and have become more important in the past 5 years, creating a more holistic view of how we manage our environment. There has been a substantial increase in reporting by government, industry and not-for-profit agencies against the SDGs. The Australian Government has committed to the SDGs (HLPF 2018):

Australia has long recognised the role of sustainable development in ensuring the wellbeing of the country and its people. Government legislation, regulation and policy already drives us towards many of the environmental, social and economic outcomes enshrined in the SDGs. As approaches and circumstances evolve, the SDGs provide a framework through which governments, businesses, organisations and individuals can conceive of a problem or objective and devise collective action through partnership to drive progress.

The 17 SDGs are not legally binding, but all national governments are expected to take ownership of, and establish national frameworks for, achieving them. The Australian Government has the primary responsibility for follow-up and review of the progress made in implementing the goals. In 2018, it produced Australia’s first voluntary national review on implementation of the SDGs, and has established a national reporting platform to provide a single point of access for Australian Government data on the SDG indicators (DFAT 2021).

In this report, we have attempted to communicate how the state of environment assessments align with SDG targets. This will help stakeholders to understand links between the state, pressures and management of Australia’s environment and internationally accepted SDGs.

Environmental protection

The Convention on Biological Diversity is a broad agreement covering the sustainable use and conservation of biodiversity, which obliges all parties to develop and implement national biodiversity strategies and action plans, and report on national implementation of the convention. Australia submitted its 6th National Report to the Convention on Biological Diversity (2014–20) in March 2020 (DAWE 2020h). The report detailed measures, activities and investments contributing to Australia’s national targets and the global 2020 Aichi targets (see Protected areas). Good progress was reported across targets related to increased engagement with Indigenous people in the management of land and sea Country, increased transboundary control of terrestrial feral animals, better alignment of national and subnational measures for addressing key threats to Australia’s biodiversity, and protection in the terrestrial and marine National Reserve System. However, this protection is mainly partial, in International Union for Conservation of Nature (IUCN) categories III to VI, and may not meet ecological or social goals. In addition, progress against most other measures was, at best, limited.

The Australian Government has entered into several regional international agreements associated with the Convention on the Conservation of Migratory Species of Wild Animals (often referred to as the Bonn Convention), including bilateral migratory bird agreements with China (CAMBA), Japan (JAMBA) and the Republic of Korea (ROKAMBA); the Agreement on the Conservation of Albatrosses and Petrels; and the East Asian – Australasian Flyway Partnership (see Migratory species). CAMBA, JAMBA and ROKAMBA provide an important mechanism for pursuing conservation outcomes for migratory birds. The Australian Government’s Wildlife Conservation Plan for Migratory Shorebirds identifies research and management actions to protect migratory shorebirds in Australia. All 35 species covered by the plan are listed migratory species under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

As a member of the 14-nation High-Level Panel for a Sustainable Ocean Economy, the Australian Prime Minister has committed to sustainably managing 100% of the ocean area under national jurisdiction, guided by a sustainable ocean plan, by 2025. This sustainable plan is to ‘be in line with the 2030 Agenda for Sustainable Development, build on integrated ocean management and ecosystem knowledge, address pressures from all land and sea-based sources, and take account of the predicted impacts of climate change’ (HLPSOC 2020).

Australia has been an active voice for World Heritage conservation during its terms as a member of the World Heritage Committee (2007–11 and 2017–21), during which Australia led the development of the Convention’s Strategic Action Plan. Australia’s 2 key nongovernment heritage organisations – the Australian Committee of the International Union for Conservation of Nature, and the Australia International Council on Monuments and Sites (ICOMOS) – are active at the international level. In relation to cultural heritage, there are 2 important international instruments – to both of which Australia is not yet a signatory: the United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Protection of the Underwater Cultural Heritage 2001 and the Convention for the Safeguarding of the Intangible Cultural Heritage 2003. There are also various international declarations, charters and guidance documents related to heritage that form important guidance for cultural heritage practice (e.g. the Sendai Framework for Disaster Risk Reduction 2015–2030, UNESCO’s Recommendation on the Historic Urban Landscape 2011 (UNESCO 2011), and the ICOMOS Nara Document on Authenticity 1994 and Xi’an Declaration on the Conservation of the Setting of Heritage Structures, Sites and Areas 2005). Their formal endorsement by the Australian and state and territory governments would be a useful action towards establishing national standards for cultural heritage practice in Australia.

Australia plays a key role in the management of Antarctica and the Southern Ocean through the international Antarctic Treaty system established in 1959. The treaty, originally signed by 12 countries whose scientists were in Antarctica at the time, is now supported by 54 nations that conduct substantial scientific research activity in the region. Seven nations, including Australia, have territorial claims over Antarctica and administer these areas through the provisions of the treaty and its suite of international agreements. These establish Antarctica as a natural reserve devoted to peace and science, and environmental protection. In 1981, the Convention on the Conservation of Antarctic Marine Living Resources was added. All of Antarctica has a high level of environmental protection; however, certain terrestrial and marine areas of outstanding environmental, scientific, historic, aesthetic or wilderness value are specially protected areas, with even higher levels of protection. The recent challenges of climate change, increasing human activities and the competing geopolitical interests of treaty member nations may need new regulatory instruments to ensure the continued protection of Antarctica (Hemmings 2017).

National, state and territory legislation and policy

Australia’s federal system of government places the vast majority of land and coastal sea management responsibilities with our 8 states and territories. These management responsibilities include the implementation of most forms of environmental protections such as protected areas, heritage, managing vegetation clearance and threatened species management. The states also govern separate legislation that establishes and controls local government.

The Australian Government has legislation and policies relating to overarching Australian environment concerns and sectors. Australia’s territorial sea (from 3 out to 12 nautical miles) and the much larger 200 nautical mile exclusive economic zone and extended continental shelf (in some areas well beyond 200 nautical miles) are governed by the Australian Government. The main environment legislation in Australia is the EPBC Act, although other legislation covers specific resources and sectors (e.g. Water Act 2007; see Water resources).

Environment Protection and Biodiversity Conservation Act 1999

The EPBC Act is Australia’s primary national environmental legislation. It has several functions, including:

  • providing for the protection of Australia’s environment, including identification and management of the listing of heritage places, World Heritage, threatened species and communities
  • protecting matters of national environmental significance, which are
    • nationally threatened species and ecological communities
    • migratory species
    • World Heritage properties
    • national heritage places
    • wetlands of international importance (often called ‘Ramsar’ wetlands after the international treaty under which such wetlands are listed)
    • Commonwealth marine areas
    • the Great Barrier Reef Marine Park
    • nuclear actions (including uranium mining)
    • a water resource, in relation to coal-seam gas development and large coalmining development
  • giving effect to Australia’s international environmental obligations (see International obligations and treaties).

Review of the EPBC Act

The EPBC Act has undergone considerable scrutiny in the past 5 years:

  • A 10-year statutory independent review commenced in 2019, and the final report was delivered in October 2020 (Samuel 2020).
  • An independent review of interactions between the EPBC Act and the agriculture sector was delivered in 2018 (Craik 2018).
  • The Australian National Audit Office audit found that the government’s administration of referrals, assessments and approvals of controlled actions under the EPBC Act is not effective, with an absence of effective monitoring, reporting and evaluation arrangements that limits the ability of the department to measure its contribution to the objectives of the EPBC Act (ANAO 2020).
  • Several inquiries were conducted by Parliament into aspects of environmental regulation under the EPBC Act, including an inquiry into Australia’s faunal extinction crisis, the effect of red tape on environmental assessment and approvals, the construction of the Perth Freight Link with significant environmental breaches, and the destruction of Indigenous heritage sites at Juukan Gorge (see Indigenous heritage).

The 2020 Samuel Review concluded that the Australian Government is not able to effectively protect significant and important environmental matters. Key findings of the review include the following:

  • Good outcomes for the environment cannot be achieved under the current laws.
  • Significant efforts are made to assess and list threatened species; however, once listed, not enough is done to deliver improved outcomes for them.
  • Cumulative impacts on the environment are not systematically considered. Decisions are made on a project-by-project basis, and only when impacts exceed a certain size; this results in net environmental decline.
  • The EPBC Act does not facilitate the restoration of the environment, and needs to shift from permitting gradual decline to halting decline and restoring the environment.
  • Key threats are not effectively addressed. There is very limited use of comprehensive plans to adaptively manage the environment on a landscape or regional scale.
  • Addressing the challenge of adapting to climate change is an implied, rather than a central, consideration.
  • The EPBC Act is not fulfilling its objectives as they relate to the roles of Indigenous Australians in protecting and conserving biodiversity, and promoting the respectful inclusion of their knowledge, and does not meet the aspirations of Traditional Owners for managing their land. Indigenous knowledge and views are diluted in the formal provision of advice to decision-makers. This reflects an overall culture of tokenism and symbolism, rather than one of genuine inclusion of Indigenous Australians.

The review made 38 recommendations, including accreditation of state and territory environmental approvals processes; improvements to Indigenous heritage protection laws; actions to support environmental restoration; and integrated data, monitoring and evaluation systems. A major recommendation of the review is the establishment of legally enforceable national environmental standards, which would set clear requirements for those who interact with the EPBC Act and clear bounds for decision-makers (see National framework for environmental standards).

In response, the government has committed to a staged program of reforms. It released a pathway for reforming national environmental law in June 2021.

EPBC Act administration

In 2020, the Australian National Audit Office completed an assessment of the effectiveness of the administration and governance of EPBC Act referrals, assessments and approval of controlled actions. The assessment found many shortcomings.

Before 1 July 2019, 6,253 proposed actions had been referred to the Minister for the Environment: 5,088 of these actions were approved (including 1,034 approved with conditions), and 21 actions were not approved. The report found that the current regulatory approach was not proportionate to environmental risk; the administration of referrals, assessments and approvals under the Act was not effective; and governance arrangements were not sound (ANAO 2020). Regulation is not supported by appropriate systems and processes, and there are no arrangements in place to measure or improve efficiency. The assessment also found that, for the approvals examined, 79% contained conditions that did not comply with procedural guidance, or contained clerical or administrative errors.

It also found that the government is not well positioned to evaluate its contribution to the objectives of the EPBC Act. Based on these findings, recommendations were made to strengthen governance arrangements and support the effective administration of referrals, assessments and approvals. All the recommendations were agreed to by the government, including internal and external performance measures on the effectiveness and efficiency of its regulation of referrals, assessments and approvals.

EPBC Act and state and territory jurisdictions

Each state and territory is responsible for the management of the living and nonliving resources found in that jurisdiction, but how these responsibilities are given effect varies markedly between the jurisdictions. The EPBC Act also has effect where resource management becomes a matter of national environmental significance. The Samuel Review noted that there is duplication between the EPBC Act and state and territory regulatory processes, and recommended that the EPBC Act should enable the Australian Government to recognise and accredit the regulatory processes and environmental policies, plans and programs of other parties, including states and territories.

The EPBC Act currently allows for the accreditation of state and territory laws and management systems for development assessments and approvals. Bilateral agreements between the Australian Government and the states and territories contain provisions to support information sharing and commitments to cooperate in monitoring compliance with conditions of approval, including through establishing complementary arrangements. To date, however, no complementary arrangements have been established.