Environment

This week's damning ANAO report Referrals, Assessments and Approvals of Controlled Actions under the Environment Protection and Biodiversity Conservation Act 1999 comments

Despite being subject to multiple reviews, audits and parliamentary inquiries since the commencement of the Act, the Department of Agriculture, Water and the Environment’s administration of referrals, assessments and approvals of controlled actions under the EPBC Act is not effective. 

Governance arrangements to support the administration of referrals, assessments and approvals of controlled actions are not sound. The department has not established a risk-based approach to its regulation, implemented effective oversight arrangements, or established appropriate performance measures. 

Referrals and assessments are not administered effectively or efficiently. Regulation is not supported by appropriate systems and processes, including an appropriate quality assurance framework. The department has not implemented arrangements to measure or improve its efficiency. 

The department is unable to demonstrate that conditions of approval are appropriate. The implementation of conditions is not assessed with rigour. The absence of effective monitoring, reporting and evaluation arrangements limit the department’s ability to measure its contribution to the objectives of the EPBC Act.

It gets worse

Arrangements for collecting and managing information on compliance with the EPBC Act are not appropriate. The department does not have an appropriate strategy to manage its compliance intelligence, limiting its access to the regulatory information necessary for complete and accurate compliance risk assessments. Key limitations include poor linkages between sources of regulatory information and a lack of formal relationships to receive external information. 

The regulatory approach to referrals, assessments and approvals has not been informed by an assessment of compliance risk. Strategic compliance risk assessments do not inform regulatory plans. In one instance, the department’s activities to promote voluntary compliance were aligned with an identified risk of inadvertent non-compliance in the New South Wales agriculture sector. The approach to individual referrals, assessments and approvals is not tailored to compliance risk. 

While the department has established sound oversight structures, they have not been effectively implemented. Procedures for oversight of referrals, assessments and approvals by governance committees are not consistently implemented. Conflicts of interest are not managed. 

The department has not established appropriate performance measures relating to the effectiveness or efficiency of its administration of referrals, assessments and approvals. All relevant performance measures in the department’s corporate plan were removed in 2019–20, and no internal performance measures relating to effectiveness or efficiency have been established. The department’s reporting under the regulator performance framework in 2017–18 was largely reliable. 

Referrals and assessments 

Systems and processes for referrals and assessments do not fully support the achievement of requirements under the EPBC Act. Procedural guidance does not fully represent the requirements of the EPBC Act and lacks appropriate arrangements for review and update. Information systems do not meet business needs and contain inaccurate data. Staff training is not supported by arrangements to ensure completion of mandatory requirements. There is no framework to prioritise work. 

Referrals and assessments are not undertaken in full accordance with procedural guidance. Decisions have been overturned in court due to non-compliance with the EPBC Act and key documentation for decisions is not consistently stored on file. There is no quality assurance framework to assure the department that procedural guidance is implemented. 

Proxy efficiency indicators developed by the ANAO indicate the efficiency of referrals and assessments has not improved over recent years. The department has no arrangements to measure its efficiency and the implementation of proposed efficiency improvement measures has not been appropriately tracked. Most referral, assessment method and approval decisions are not made within statutory timeframes. 

Conditions of approval 

Departmental documentation does not demonstrate that conditions of approval are aligned with risk to the environment. Of the approvals examined, 79 per cent contained conditions that were non-compliant with procedural guidance or contained clerical or administrative errors, reducing the department’s ability to monitor the condition or achieve the intended environmental outcome. 

The department has not established appropriate arrangements to monitor the implementation of pre-commencement conditions of approval. The department’s systems for monitoring commencement of actions are inaccurate. The absence of procedural guidance for reviewing documents submitted as part of pre-commencement conditions leaves the department poorly positioned to prevent adverse environmental outcomes. 

Appropriate monitoring, evaluation and reporting arrangements have not been established. Performance measurement and evaluation activities do not assess the contribution of referrals, assessments and approvals to the objectives of the EPBC Act.