Fake News

Telling China’s Story: The Chinese Communist Party’s Campaign to Shape Global Narratives, a joint white paper by Renee Diresta, Carly Miller, Vaness Molter, John Pomfret and Glenn Tiffert for the Stanford Internet Observatory and the Hoover Institution is of interest to scholars of fake news.

The paper examines China’s covert and overt capabilities in the context of modern information operations.

It comments

 Much of the attention to state-sponsored influence practices in recent years has focused on social media activity, particularly as social network companies have announced takedowns of accounts linked to state-backed operations. However, state-sponsored operations are broader than social media. Countries including Russia, China and Iran have demonstrated the ability to operate a full-spectrum capability set that spans both traditional and social media ecosystems. 

While some of the technologies leveraged towards today’s information campaigns are new, the strategies are well-established. In the case of China, the Chinese Communist Party (CCP) relies on an extensive influence apparatus that spans a range of print and broadcast media, with varying degrees of attributability, to advance both its domestic monopoly on power and its claims to global leadership. This apparatus draws on nearly a century of experience running information operations. 

Our white paper explores the impact of technological innovations on these established strategies and tactics, asking the question: what is the scope and nature of China’s overt and covert capabilities, and how do they complement one another? We evaluate China’s capabilities through three timely case studies:

1) Hong Kong's 2019-2020 protests; 

2) Taiwan’s January 2020 election; and 

3) the COVID-19 pandemic.

To understand how China’s abilities compare to those of other powers, we contrast China’s activities with Russia’s. 

Key takeaways: 

China’s overt propaganda apparatus is robust, and managing both inward and outward-facing messaging remains a top priority for the CCP. This apparatus rests on the two pillars of the Central Propaganda Department (CPD) and the United Front, which coordinates with state organs and manages influence groups outside the party. Under Xi Jinping, their work has taken on a new urgency; in 2018, the CCP tightened party control of the media by shifting direct oversight of print publications, film, press, and key broadcast properties to the CPD. Similarly, Xi Jinping has energized the United Front Work Department’s operations, reportedly adding 40,000 officials to its roster and elevating it to the top tier of party organs. 

China’s overt messaging efforts span both broadcast and social media. Domestically, since the mid-2000s, the CCP has been replacing editors and publishers at many of the more popular media outlets to reassert control over domestic information. Internationally, overt infrastructure includes (but is not limited to) regionalized and language-specific traditional media channels, media presence on social media, and prominent-figure influencer accounts with millions of followers on Western social media platforms. 

In addition to its extensive overt capabilities, China has less-attributable or unattributable communication options that it can draw on to influence opinions. These include content farms, ‘astroturf’ commenter brigades, and fabricated accounts and personas on social media channels. Perhaps the most famous of China’s more covert domestic influence capabilities is the digital commenter brigade known as Wumao, or “50 Cent Party.” Additionally, for the first time in August 2019, clusters of fake accounts and content were concretely attributed to the CCP by several tech companies including Facebook, Twitter and YouTube.

In the whitepaper, we present three case studies that illustrate how China uses these full-spectrum capabilities:

China has attempted to influence global perception of the 2019–2020 Hong Kong protests through tightly aligned state media networks and fake account activity on Western social media platforms. Both overt state media outlets and fake personas aimed to shape the global perception of the protesters and project that the CCP’s control over Hong Kong was not in jeopardy.

To promote preferred narratives on the 2020 Taiwanese election, China deployed influence capabilities across both traditional media and social media, aligning messaging between Chinese state media and Beijing-friendly Taiwanese media. In addition, unattributable content farms active on Facebook and the LINE messaging app, as well as dubious YouTube channels, created and amplified misinformation, including rumors about incumbent presidential candidate Tsai Ing-wen. Fake Twitter accounts further amplified CCP talking points on divisive topics.

China’s influence strategy on COVID-19 has involved a full spectrum of overt and covert tactics, which has included domestic censorship, English-language state media messaging bolstered by Facebook ads, and the use of fake accounts to influence conversations on Western social media platforms. English-language state media Facebook Pages and Twitter accounts, as well as Chinese diplomats and embassies, took part in an overt messaging effort to amplify the CCP’s preferred narratives on COVID-19. Covert state-sponsored activity leveraging fake Twitter accounts paralleled these efforts, praising the CCP’s pandemic response and criticizing the responses of other actors, such as the United States, Hong Kong and Taiwan. 

We additionally examined these capabilities in context, particularly given U.S. media comparisons between “the Russia playbook” and China’s activities. While China and Russia overlap in capabilities, there are important differences in their goals, strategy, and tactical execution. They have different core operational objectives: China is focused on a strategic mission of establishing the country as a leader in the international order and maintaining positive global opinion. Russia, meanwhile, seeks to create a positive perception in regions it prioritizes for strategic relationships, but it more aggressively works to erode the international perception and domestic social cohesion of its rivals. Both countries have amassed prominent overt Facebook Pages and YouTube channels targeting regionalized audiences, though the use of those pages diverges in service to their differing objectives. Additionally, both actors have run fake Facebook pages and Twitter persona accounts. However, the execution of this covert strategy varies significantly: Russia’s covert operations include sophisticated personas informed by ethnographic research, and development of relationships with influencers (enabling them to reach their audience and amplify their content). China’s own efforts to leverage fake personas have resulted in unsophisticated accounts, far less engagement, and no clear influencer amplification.

Work

The UK Data and the Future of Work report by Hettie O’Brien and Mathew Lawrence offers the following Policy Recommendations

Waged labour is defined by sharp asymmetries of power between workers and employers. This imbalance – which reflects and reproduces stark background inequalities of power and resources in our society – structures the nature and purpose of work, hardwires relations of domination and exploitation into the labour market, and enables the upwards extraction and concentration of surplus value from labour to capital. Work in the platform economy – defined on unequal terms, with minimal scope for collective bargaining, and without the hard-won protections of the employment relationship – sharply intensifies these processes.

The effects of Covid-19 have both exposed and amplified long-standing inequalities in work. Its impacts have been unevenly felt, with working class and ethnic minority people hardest hit economically and in health terms – the virus may not discriminate, but how we organise our society does, both structurally and systematically. What’s more, as much of the economy has gone into economic hibernation, emerging fitfully to an uncertain future, the platform giants have thrived. Absent change, Covid-19 is likely to lead to a dramatic upwards shift in ownership and control within the economy, consolidating among the tech monopolies and other major corporations. This consolidation of power will inevitably have important and further disequalising consequences for the organisation of work and the distribution of wealth.

Yet the crisis has also reminded us what forms of work are truly essential: the work of producing and sustaining life, that is too often undervalued and ignored, deliberately made invisible and insecure. A new common sense is rapidly emerging, one that insists we can and must build back better, not just by reinflating the old economy, with its insecurities and structural inequalities, but by building a new economy that is reparative, sustainable, and just by design. This would meet a systems crisis with an agenda for systemic change. In place of the economics of enclosure and extraction, a 21st century commons founded on stewardship; in place of concentrated economic power, a new ecosystem of democratic ownership, governance and control to reimagine how we create and distribute wealth; against austerity, an ambitious mission-oriented investing state, new models of public ownership and a reimagined household economy that challenges sharp hierarchies and injustices.

We are in a moment of rupture, our future undetermined. The need for a new settlement is clear; on what foundations, in whose interest it will be built, remains to be decided, the subject of politics and struggle in all its dimensions. There is no guarantee the crisis will not be resolved on terms that deepen inequality and further hollow out the capacity of democratic action to decide and order our collective futures. If this is to be a generative moment, transformation must centre a politics of work that actively extends democracy, secures dignity for everyone, and ensures we share in the wealth we create in common.

Securing a future of good work for all requires overcoming the inequalities that structure work. Work reimagined should bring to life an “alternative vision of wealth and experiment in ways in which human labour can be employed for the production of solidarities, mutual pleasures, and beauty,” shaped by “accountable procedures, open to participation and responsive to needs.” The extension of social control over economic institutions can ensure people have “broadly equal access to the necessary means to participate meaningfully in decisions” affecting their lives, with workplaces reorganised as spaces to pursue “people’s development and exercise of their creative and productive capacities in cooperation with others.” And it means centring and supporting new forms of labour and value, rooted in solidarity, care and creation. As Alyssa Battistoni writes, work should be “oriented toward sustaining and improving human life as well as the lives of other species who share our world.”

Three foundational steps are required to secure this alternative future of work.

First, to overcome the power imbalance that structures work and leaves too many insecure, we need a new deal at work that guarantees vital protections and security for all workers. This should include both stronger and properly enforced employment rights for all and unions with a strengthened ability to negotiate better terms and conditions for workers. The decriminalisation of work for migrants, as outlined by the Joint Council for the Welfare of Immigrants, should be a crucial part of this agenda, ensuring that employment rights are respected regardless of citizenship.

Second, to address the background inequalities of resource that structure the asymmetrical terms on which work is organised, we need to guarantee a minimum income for all through a comprehensive social security system and an ambitious universal basic services agenda, ensuring people can live freely and well outside of the market, with the power and security to exit from bad forms of work.

Third, to reshape the company from a space of private control to a social institution in which workers and society have a genuine stake and a say, we need to reallocate and democratise coordination rights within the firm.

Finally, we need to adopt specific measures that reimagine the use of platform technologies to better support the capacity of workers to organise, bargain, and creatively experiment, rather than erode their rights and undermine collective power. First, by ensuring the collection and use of data at work and the development and application of digital technologies within the workplace is determined by collective bargaining agreement. Second, by establishing sectoral ‘data trusts’ to provide workers and trade unions with the information needed to bargain and organise more effectively. And finally, by developing democratic and universal digital infrastructures, including the scaling of co-operative and worker-owned platforms, that enhance the ability of workers to organise for better terms, conditions and pay. 

Guaranteed rights, universal security, democratised workplaces 

1. Securing worker rights: an emergency response 

As part of a package of emergency Covid-19 recovery legislation, a comprehensive new set of labour rights should be introduced. This should include specific measures to guarantee rights and securities to platform workers as well as steps to rebalance power at work more broadly to ensure we emerge from the crisis with a fairer, more secure, and equitable world of work. As the TUC and the Institute of Employment Rights  among others have argued for, this should include:

• The creation of a new ‘worker’ definition to cover all existing employees and workers, including agency workers, dependent contractors, and people on zero-hours contracts, helping end bogus self-employment and raising the floor for all, regardless of status. All workers should benefit from a guaranteed, strong set of rights from day one. These should include statutory redundancy pay, family-friendly rights including maternity, paternity and adoption leave, holiday pay, protection from unfair dismissal, a clear setting out of their pay and conditions including hours, the payment for breaks during shifts, and union rights. 

• As the TUC set out in their response to the Taylor Review, there should be a statutory presumption that all individuals qualify as employees unless the employer can demonstrate in an employment tribunal that they are genuinely self-employed. 

• An end to zero-hours contracts, replaced with contracts that provide a minimum number of guaranteed hours and have a premium rate for overtime. 

• A new duty to provide harassment-free workplaces and the inclusion of socio-economic status in protected characteristics. 

• Stronger and more equitable family-friendly rights, including two month paternity leave on full pay and three months leave to be shared flexibly between parents or carers, for when the child is slightly older; the right to request flexible working to enable people to better balance work and family life; and stronger protections against unfair dismissal for all workers; statutory bereavement leave; 

• Tribunal fees should be abolished so that all workers can enforce their rights and help rebalance power at work. Agencies enforcing worker rights should be properly resourced and support all workers, including undocumented workers. 

• The successful sectoral licensing approach of the Gangmasters Labour Abuse Authority (GLAA) should be extended to types of occupation that suffer from high levels of exploitation and insecurity, including key sections of the platform economy. 

• Employers should be required to devise and implement, with the input of the workforce, plans to eradicate pay gaps based on gender, race, and/or disability, with fines for those who have not eradicated such pay inequalities. Alongside new rights, action is needed to reform the legal framework which governs trade union rights, which as the Institute for Employment Relations have found, “are the most restrictive in the Western World. This is indisputable in relation to the right to trade union autonomy, right to strike, and the right to bargain collectively.” As a result, collective bargaining coverage in the UK has collapsed, covering just 14.7% of workers in the private sector and only 26% of workers overall. To address this, a new framework to expand collective bargaining at both a sectoral and enterprise should be introduced that will improve working conditions and pay, reduce wage inequality, support good employers, improve productivity, and strengthen workplace democracy. Strengthening collective bargaining – at both a sectoral and enterprise level – is vital in a changing world of work. It will enable both workers and companies to adapt to new forms of work. It would ensure the collective voice of workers shapes the design of company strategies, particularly those that relate to the deployment of new technologies and ensure the gains of new technologies are fairly shared among capital and labour. 

• Giving trade unions right of entry to organise, recruit and represent their members in the workplace – and across multisite organisations – to accelerate the recent uptick in union membership. This should include a ‘digital right of access’ to enable unions to communicate with workers electronically, including organising platform workers. Union representatives should have the right to facility time (paid time off) for union work, including organising, recruiting, and representing members. 

• The threshold for union recognition in a workplace should be lowered to 10% union membership and evidence of majority support through signatures or a card check. 

• Prohibit union-busting and repeal the 2016 Trade Union Act, which makes collective bargaining more difficult. 

• Re-establish sectoral collective bargaining with bargaining to cover pay and conditions, working time and holidays, dispute settlement, job security, health and safety, gender equality, workplace equalities relating to ethnicity, class and other protected characteristics, pensions, and training and development. A new Sectoral Employment Commission (SEC), which can identify categories of work and initiate negotiations between the two sides of industry over the baseline terms and conditions of the sector for all workers and employers within the industry, should be created. Sector negotiating bodies should include an equal number of employers and trade union representatives. Sectoral bargaining should be rolled out in key sectors of the everyday economy to begin, including care, hospitality, retail, manufacturing, agriculture, telecommunications, and transport and logistics. Where sectors are primarily overseen by devolved administrations, sectoral bargaining should be organised on the same scale. Sectoral bargaining mechanisms in these sectors should also cover work organised through platforms. 

• As part of a renewal of collective bargaining, Acas’ duty to promote collective bargaining should be restored and public procurement rules should favour contracts that use negotiated terms and conditions. 

• Sectoral bargaining should also be mandated to negotiate reductions in working time without loss of pay, ensuring the benefits of increases in productivity are fairly shared. 

• Alongside sectoral bargaining, a revival of enterprise level bargaining is needed, focusing on how day to day practices are organised at work as well as specific contractual terms and conditions, which it is important workers have a collective ability to influence, over and above the high base-line of terms, conditions and equitable wage growth established by sectoral bargaining. 

• Existing information and consultation rights should be expanded and consolidated into a new system of elected work councils which would have binding rights on workplace matters, including health and safety, negotiating economic and managerial change, working time and breaks. 

2. Guaranteeing economic security: providing a minimum income for all

The UK’s social security system is weak by international and historical comparison: “total out-of-work payments received by UK employees are on average around 34% of their previous in-work income – the third lowest among 35 OECD advanced economies. And at 15% of average earnings, the main adult unemployment payment is worth less than at any time since the 1948 creation of the welfare state.” In the midst of the deepest recession in 300 years, it is inadequate as a safety net and cannot provide the countervailing security that empowers people to only accept good, well-paid forms of work.

To address this, we therefore support calls for a temporary and generous minimum income guarantee that would, as Alfie Stirling and Sarah Arnold argue, put in place a “comprehensive, sufficient, non-conditional, non-means tested at the point of access, minimum income floor to catch everyone who is currently missed out by the job retention scheme and the self-employed income support scheme.” As set out by NEF this should build on the current social security system, based on the following pillars:

• Value: Every working age adult who is not covered by either the job retention scheme or the self-employed income support scheme will be entitled to a weekly payment worth £221 per week. 

• Administration: All working age adults would be entitled Existing claimants would experience an automatic top-up to their current benefits; new claimants will receive payment through the advance payment system for UC. 

• Entitlement: All working age adults who are eligible should be able to apply. 

• Cost: modelling from NEF suggests that an emergency minimum income guarantee scheme over three months would cost around £20 billion, funded by government borrowing.

The proposed design is a temporary, debt-funded response to the economic emergency, but a permanent minimum income guarantee programme – funded out of general taxation – would be a powerful alternative to the UK’s current and inadequate social security system, one that would reduce poverty and inequality and improve economic security, striking at a key power imbalance that shapes the UK’s labour market.

Alongside this, though beyond the scope of this paper, we support the extension of the universal basic services agenda that would progressively decommodify the building blocks of modern life, from broadband to transport, housing to food. This will require making and winning the case for a more progressive tax system and a new arrangement of ownership and control of foundational goods and services.

3. Democratising the firm: reallocating coordination rights

Work is shaped by how economic economic coordination rights are allocated and to whom, determining who has the authority to manage and decide. Today, economic co-ordination is primarily organised through the capitalist firm with co-ordination rights allocated on the basis of ownership of capital and where the purpose of activity is to maximise shareholder wealth. This is a sharply hierarchical, concentrated approach, with capital monopolising decision-making power. Economic coordination rights in the corporation are assigned exclusively to capital through shareholding; labour and other non-property holding stakeholders are excluded from the government of the company. Meanwhile the ability of workers to co-ordinate through trade unions and collective bargaining is limited and subject to legal and political pressure. In other words, property-holders are free to associate, combine, and coordinate; workers’ freedom to do the same is sharply circumscribed. That organised capital is granted extensive co-ordination rights relative to organised labour underpins the sharp asymmetries of power at work that structures the terms and conditions of employment and underpins wider inequalities of wealth and authority in the economy.

This is by design. Capitalism, as the labour law scholar Sanjukta Paul argues, is a mechanism for narrowly concentrating economic co-ordination among the owners and agents of capital. The alternative must challenge this concentration of power and control by reallocating and democratising economic coordination rights, both at the firm and economy-wide level. The platform economy exacerbates these trends. Platforms erode the traditional employment relationship, shifting insecurity and risk onto the worker and eroding the protections and rights of the employment relationship. At the same time, even as platform companies coordinate entire markets, setting the terms, conditions and prices of work, the ability of platform workers to organise is heavily restricted. ‘Big Tech’ - and other large companies - are legally privileged to co-ordinate on a vast scale, while the ability of workers to coordinate, both within firms and across sectors, is limited and narrow. This is not because of the technologies but rather the assemblage of laws and regulations that concentrate economic co-ordination rights overwhelmingly with the platform companies. As Paul argues,

… [O]wners/investors do not just benefit from combining the economic power of their capital. In markets where there is a price premium to be realized from coordination, they also benefit from combining the power of others’ labor. They coordinate the prices of services others perform, through the mechanism of the firm (and thereby realize any premium), while the service-providers themselves, if they are not employees, are barred by anti trust law from benefiting from the economic power of their own combination.

A central task in transforming work is therefore reallocating economic co-ordination rights within the firm and beyond, institutionalising alternative forms of economic association and control, scaling a more pluralistic landscape of genuinely inclusive, democratic and purposeful enterprise. This requires an act of unmasking. Too often the existing distribution of rights and powers within the firm is cast as a fixed, natural state, pre-existing politics. Yet the monopolisation of co-ordination rights by capital is not “natural” but constituted by law and politics. The corporation is not a Hayekian institution of ‘spontaneous ordering’, a space of private contract and property whose actions should be insulated entirely from democratic intervention, but rather one undergirded and made possible by public power, its rights and powers publicly granted, legally defined, and re-codable.

If coordination rights that structure all economic activity are publicly granted, allocated and sustained through law and public action, a form of privilege and social franchise, then it is possible to reimagine their allocation, constructing very different types of enterprise, governed by different logics, supporting different forms of work. The goal, then, is to reclaim enterprise as a social and generative institution of the commons: purposeful and democratically governed, where all its stakeholders have stake and a say, with workers having participation rights based on the reallocation and democratisation of coordination.

To that end, the following measures are required to reallocate and democratise economic coordination rights within the company. The following should apply to all enterprises regardless of legal form, size, across corporate groups, including foreign entities with their real seat in the UK:

• To reshape company purpose and end shareholder primacy, Section 172 of the Companies Act 2006 should be amended to make the promotion of the long-term success of a company for the benefit of its key stakeholders, including employees, the primary duty of its directors, not the maximisation of shareholder interest. 

• To democratise corporate governance, 45% of a company board should be elected by the workforce, 45% by the shareholder body, with the remainder representing social and environmental interests. 

• To extend the economic franchise to workers, workers as a collective should be entitled to a minimum of 25% of the total voting rights in their company and have the right to be registered as a member of their company. 

• To give workers a share in the profits they help create, mandatory profit sharing for workers in companies above 50 employees should be introduced, as in France. 

• To democratise capital markets, there should be codetermination in capital and pension funds, with a prohibition on asset managers voting without instruction. 

4. The collection and use of data at work and the development and application of digital technologies within the workplace should be determined by collective bargaining agreement

In addition to negotiating wages and conditions, all collective bargaining agreements (both sectoral or enterprise-based) should be required to negotiate over the collection and use of data during work as well as the adoption and use of technologies that impact the experience of work.

The goal of including the use of digital technologies in collective bargaining agreements is to allow workers to shape the development and application of technologies which intimately pattern how they work as well as shaping the distribution of power between workforce and management. Without this countervailing force, technologies are likely to amplify existing inequalities in pay and conditions and weaken the protections afforded by the employment relationship.

Collective bargaining agreements should include the following:

• The right to have full transparency in Artificial Intelligence (AI) systems and how they intervene to shape working practices through the adoption of an algorithmic “black box”. This would be a device that records information about how AI and data-systems work and record all decisions (and decision-making trees). This data should be easily accessible, understandable, and uncomplicated, enabling workers to quickly understand how technical systems operate and their effects on working conditions. 

• The right for workers to collectively determine how data collecting technologies are introduced, including a final say on the introduction and use of surveillance and monitoring technologies, and ensure workers can co-determine the development and deployment of AI systems. 

• The right to co-design algorithmic systems that form decision-making processes and impact on working conditions, including ensuring algorithmic accountability. 

• The right to access and use data generated by workers to improve working conditions, including protecting “time sovereignty” – the ability to exercise control and balance over one’s own work time – and the use of data to strengthen the hand of the workforce during collective bargaining negotiations. 

• The right to a “human-in-command” approach, whereby workers can determine how legal control and responsibility over machines is exercised, including a right of explanation over machine-based decision-making processes. 

• The “right to disconnect”, based on the French model where a series of sectoral bargaining agreements have ensured workers are not required to send or answer emails outside of work hours, should be included in negotiations. 

• The right to ban certain forms of data collecting or analysis when it infringes on the privacy, rights, or wellbeing of the workforce.

Collective bargaining agreements must extend to those whose work is organised through digital platforms; these workers should also be recognised as employees. There is ample precedent for this. For example, in both Norway and Denmark, Deliveroo workers are covered by collective bargaining agreements.

Legislation to embed sectoral collective bargaining – including over the development and use of technologies and technical systems – should be accompanied by a review of employment law, integrating a new set of principles into the ethical use of AI and machine technologies into legislation. At an international level, the UK should lobby for a new International Labour Organization (ILO) instrument setting out minimum rights and protections for platform workers internationally. This should be ambitious; as a minimum, it should mandate that platform workers in the UK and globally enjoy the rights set out in the ILO Declaration on Fundamental Principles and Rights at Work. One analogy would be the Maritime Labour Convention, a global labour code for seafarers which helps guarantee decent conditions for workers who work across borders.

5. Establish sectoral ‘data trusts’ to provide workers and trade unions with the information needed to bargain and organise more effectively

The asymmetry in information between workers and employers – heightened by inequalities in access to data and the insights it generates – further cements power imbalances at work. To address this, relevant sets of data should be made accessible to workers and trade unions, at both the enterprise and sectoral level. By providing them with a better view of both individual and aggregate earnings, conditions and employment status, the pooling of data can enable workers to better understand their work and conditions and help unions better organise, campaign, enforce existing rights, and collectively bargain. As Worker Info Exchange argues, it can help workers in the platform economy gain employee status recognition or enable trade unions to use information as leverage for collective bargaining to improve pay and conditions.

To that end, sectoral data trusts should be established as part of the sectoral collective bargaining process, with the aim of creating an expanding data commons. One example of such an effort would be to establish data trusts – an autonomous legal body that acts as a custodian and steward of a specific data set, making sure that the data is shared safely and democratically. A Data Trust could help build the policy foundations for a process of data commoning – guaranteeing that collective data is anonymised, decommodified and working towards public interests, rather than serving the shareholders of platform monopolies.

As part of sectoral collective bargaining agreements, companies should be required to provide to the sector data trust a set of agreed datasets, such as wages, conditions, and employment status of the workforce, suitably anonymised with respect to privacy. Trade unions, individual workers, and civil society organisations would be able to request access to the data from the data trust. The trust should provide analytical support to help users analyse the data, generating insights that can help them intervene more effectively in the workplace.

The Open Data Institute has recently set out – based on three pilots – recommended best practice for how trusts could be established, governed, and populated with relevant data; these should inform how sectoral data trusts are established, their governance, and what forms of data are required and the terms of access and use. These principles should be drawn upon in the design and operation of sectoral data trusts.

In addition to the sectoral data trusts, the 2018 EU General Data Protection Regulation, enacted through national legislation in the UK, gives individuals significant powers to demand access to all of their personal data at work, as well as fairness and transparency in how their data is processed. However, to make these rights effective, support should be given to organisations helping individuals and groups enforce their data rights. To this end, a “Democratising Data Fund” should be created to help workers and civil society gain access to and better use data collected at work to improve pay and conditions.

6. Building a democratic and universal digital infrastructure

A new landscape of data trusts that protect privacy while enhancing the ability of workers to coordinate and bargain should be underpinned by a 21st century digital infrastructure that is democratic and universal. Delivering that will require moving beyond the “regulatory state” and market-oriented approaches that have dominated the development of the UK’s digital infrastructure in recent decades – and which have led to the slow roll-out of vital infrastructures like full fibre broadband, a deep digital divide, and sharp imbalances in power that benefit the owners of digital platforms at the expense of labour. Instead, a new set of institutional arrangements based on the democratic ownership and governance of digital, data and knowledge infrastructures is required to lay the foundations for a thriving society and democratic economy.

A democratic 21st century digital infrastructure – developed to meet the needs of people and planet – can open up a more innovative future that better serves workers and society, from the creation of national data funds and collective data banks to intervening around algorithmic systems; from reshaping platform work to socialising “feedback infrastructures”; to exploring how data infrastructure can be remade as sites of participation around both local and national issues. Reshaping the UK’s infrastructure – digital and physical – can drive wider changes in social, economic and ecological relations, changing the purpose of connectivity – challenging exploitative platforms and algorithms and supporting alternative ways to use digital technologies that are pro-labour.

Public policy should therefore seek to reshape how digital infrastructure is deployed and owned, as well as how data is produced and distributed, moving from conditions of private enclosure to a data commons. As Common Wealth have argued in Full Fibre Future and Democratic Digital Infrastructure, organising digital infrastructure – the rollout and maintenance of fibre optic connection and 5G in particular – should be a vital 21st century public infrastructure. To that end, the following is recommended: 

1. A new public infrastructure company should be tasked with rolling out a nationwide full fibre network by 2030 – delivering a digital network faster, cheaper, and more equitably than by private competition, and undercutting the incentive for network providers to support harmful forms of surveillance technologies. 

2. A publicly owned cloud service option should be examined, operating as an alternative to existing providers with an emphasis on data security and the ethical use of information. 

3. The development of a digital industrial strategy – with public investment and organised labour at its heart – to develop democratic technological sovereignty, including: 

• The introduction of documented open standards to ensure interoperability and inhibit the development of IP monopolies. 

• A new open software license regime for technical developments funded by public money. 

• Scaling alternative business models to democratise economic structures, such as platform cooperatives co-owned by workers and users.

Interim EPBC report

The Interim Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) offers a depressing picture of policy and administrative failure.

The Executive Summary from the report states

Protection of Australia’s environment and iconic places

Australia’s natural environment and iconic places are in an overall state of decline and are under increasing threat. The current environmental trajectory is unsustainable.

The overwhelming message received by the Review is that Australians care deeply about our iconic places and unique environment. Protecting and conserving them for the benefit of current and future generations is important for the nation.

The evidence received by the Review is compelling. Australia’s natural environment and iconic places are in an overall state of decline and are under increasing threat. The pressures on the environment are significant—including land-use change, habitat loss and degradation, and feral animal and invasive plant species. The impact of climate change on the environment is building, and will exacerbate pressures, contributing to further decline. Given its current state, the environment is not sufficiently resilient to withstand these threats. The current environmental trajectory is unsustainable.

The EPBC Act is ineffective. It does not enable the Commonwealth to effectively protect environmental matters that are important for the nation. It is not fit to address current or future environmental challenges.

The way the EPBC Act operates means that 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.

In the main, decisions that determine environmental outcomes are made on a project-by-project basis, and only when impacts exceed a certain size. This means that cumulative impacts on the environment are not systematically considered, and the overall result is net environmental decline, rather than protection and conservation.

The EPBC Act does not facilitate the restoration of the environment. Given the state of decline of Australia’s environment, restoration to improve the environment is required to enable future development to be sustainable.

Key threats to the environment are not effectively addressed under the EPBC Act. There is very limited use of comprehensive plans to adaptively manage the environment on a landscape or regional scale. Coordinated national action to address key threats—such as feral animals—are ad hoc, rather than a key national priority. Addressing the challenge of adapting to climate change is an implied, rather than a central consideration.

Fundamental reform of national environmental law is required, and National Environmental Standards should be the foundation The EPBC Act has no comprehensive mechanism to describe the environmental outcomes it is seeking to achieve, or to ensure decisions are made in a way that contributes to them. Ecologically sustainable development (ESD) should be the overall outcome the Act seeks to achieve. ESD means that development to meet today’s needs is undertaken in a way that ensures the environment, natural resources and heritage are maintained for the benefit of future generations.

Legally enforceable National Environmental Standards should be made to set the foundations for effective regulation, to ensure that decisions made under the EPBC Act clearly track towards ESD.

National Environmental Standards should be binding and enforceable regulations. The Commonwealth should make them, through a formal process set out in the EPBC Act. Standards should be developed in consultation with Indigenous, science, environmental and business stakeholders, and the community. Consultation with states and territories is essential. However, the process cannot be one of negotiated agreement with rules set at the lowest bar.

National Environmental Standards should prescribe how decisions made contribute to outcomes for the environment. They should also include the fundamentally important processes for sound and efficient decision-making. Standards should be concise, specific and focused on the requisite outcomes, with compliance focused on attaining the outcome. National Environmental Standards should not be highly prescriptive, where compliance is achieved by ‘ticking the boxes’ to fulfil a process.

As the centrepiece of regulation, National Environmental Standards should set clear rules for decision-making. Current arrangements, buried within hundreds of statutory documents, fail to provide clearly defined and specific rules, and they enable considerable discretion in decision-making. Instead, the law must require the Standards to be applied, unless the decision-maker can demonstrate that the public interest and the national interest is best served otherwise.

National Environmental Standards will clearly demarcate the objectives in managing the environment, and the outcomes sought. This is important to help the community know what they can expect from the EPBC Act. It is also important for business, who seek clear and consistent rules.

Interim Standards are recommended as a first step, to facilitate rapid reform and streamlining. These Interim Standards will need to define clear limits of impacts to protect nationally important environmental matters. Ultimately, Standards should be granular and measurable, and provide clarity as to where and how development can occur so as not to compromise environmental sustainability. A quantum shift will be required in the quality of accessible data and information, to increase the granularity of Standards.

Precise, quantitative Standards, underpinned by quality data and information, will provide for effective environment protection and biodiversity conservation and ensure that development is sustainable in the long-term. They will also support faster and lower-cost assessments and approvals, including the capacity to automate consideration of low-risk proposals.

The EPBC Act should focus on core Commonwealth responsibilities

The focus of the EPBC Act should be the Commonwealth’s core responsibilities. The Act, and the National Environmental Standards that would underpin its operation, should focus on the places, flora and fauna that the Commonwealth is responsible for protecting and conserving in the national interest—including World and National Heritage, Ramsar wetlands, and nationally important species and ecological communities. Under the Act, these nationally important matters are called ‘Matters of National Environmental Significance’ or MNES.

Proposals have been made to remove the Commonwealth’s role on regulating water impacts from coal and coal seam gas, and for nuclear activities. The Review considers the Commonwealth should maintain an ability to intervene where developments may result in the ‘irreversible depletion or contamination’ of cross-border water resources. Similarly, for community confidence, the Commonwealth should retain the capacity to ensure nuclear (radioactive) activities are managed effectively.

The Review does not support the many proposals received to broaden the environmental matters dealt with in the EPBC Act. To do so would result in muddled responsibilities, leading to poor accountability, duplication and inefficiency.

While climate change is a significant and increasing threat to Australia’s environment, successive Commonwealth Governments have elected to adopt specific mechanisms and laws to implement their commitments to reduce greenhouse gas emissions.

The EPBC Act should not duplicate the Commonwealth’s framework for regulating emissions. It should, however, require that development proposals explicitly consider the effectiveness of their actions to avoid or mitigate impacts on nationally protected matters under specified climate change scenarios.

This position is consistent with the foundational intergovernmental agreements. It was agreed that emissions would be dealt with by national-level strategies and programs, rather than the EPBC Act. The Review considers there is merit in mandating proposals required to be assessed and approved under the Act (due to their impacts on nationally protected matters), to transparently disclose the full emissions profile of the development.

Planning at the national and regional (landscape) scale is needed to take action where it matters most and to support adaptive management Regional (landscape) plans should be developed that support the management of threats at the right scale and to set clear rules to facilitate and manage competing land uses. These plans should prioritise investment in protection, conservation and restoration to where it is most needed, such as biodiversity hotspots, and where the environment will most benefit.

Ideally these plans would be developed in conjunction with states and territories. Where this cooperation is not possible, the Commonwealth should develop its own plans to manage threats on a landscape-scale, and cumulative impacts on MNES. The Commonwealth’s regional planning efforts should be focused on those regions of highest pressure on MNES.

Strategic national plans should be developed for ‘big-ticket’, nationally pervasive issues such as the management of feral animals or adaptation of the environment to climate change. These plans should guide the national response and enable action and investment by all parties to be effectively targeted to where it delivers the greatest benefit. National-level plans will support a consistent approach to addressing issues in regional plans or inform activities in areas where there is no regional plan.

More needs to be done to restore the environment

The operation of the EPBC Act needs to shift from permitting gradual decline, to halting decline and restoring the environment, so that development can continue in a sustainable way. Active mechanisms are required to restore areas of degraded or lost habitat to achieve the net gain for the environment that is needed.

The proposed regional plans are key mechanisms that can set the priorities for restoration and adaptation and identify where investment will have the best returns for the environment. The Review has identified opportunities for national leadership outside the EPBC Act that should be considered. Existing markets, including the carbon market can be leveraged to help deliver restoration. There are also opportunities for greater collaboration between governments and the private sector, to invest in both in the environment directly, and in innovation to bring down the costs of environmental restoration activities.

National Environmental Standards and national and regional (landscape) plans will support greater harmonisation with the states and territories The construct of Australia’s federation means that the management of Australia’s environment is a shared responsibility. The Commonwealth and states and territories need to work effectively together, and in partnership with the community, to manage Australia’s environment and iconic places well.

Jurisdictions have agreed their respective roles and responsibilities for protecting the environment, and where possible, they have agreed that they will accommodate each other’s laws and regulatory systems. This is a sound ambition, but more needs to be done to realise it.

The National Environmental Standards and improved planning frameworks aim to support greater cooperation and harmonisation between the Commonwealth, states and territories. Setting clear, legally enforceable rules means that decisions should be made consistently, regardless of who makes them, providing a pathway for the Commonwealth to recognise and accredit the regulatory processes of others. In pursuing greater harmonisation, the Commonwealth should retain the ability to step in to make decisions, where it is in the national interest to do so.

National Environmental Standards and national and regional plans will allow the Commonwealth to step up its focus to achieve nationally important environmental outcomes. They will also support a shift away from the current transactional focus of the EPBC Act, that can be duplicative, costly to business and result in little tangible benefit to the environment.

Indigenous culture and heritage

Indigenous knowledge and views are not fully valued in decision-making

The Review considers that the EPBC Act is not fulfilling its objectives as they relate to the role of Indigenous Australians in protecting and conserving biodiversity and heritage, and promoting the respectful use of their knowledge.

Over the last decade, there has been a significant evolution in the way Indigenous knowledge, innovations and practices are incorporated into environmental management, for example through investment in Indigenous Rangers. The EPBC Act lags well behind leading practice.

Western science is heavily prioritised in the way the EPBC Act operates. 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 operation of the EPBC Act Indigenous Advisory Committee (IAC) exemplifies the culture of tokenism. The Act does not require the IAC to provide decision-makers with advice. The IAC is reliant on the Minister inviting its views. This contrasts to other statutory committees under the Act, which have clearly defined and formal roles at key points in statutory processes.

The Department has issued guidance on best practice Indigenous engagement. This sets out expectations for applicants for EPBC Act approval, but it is not required or enforceable. It is not transparent how the Commonwealth Minister factors in Indigenous matters in decision-making for EPBC Act assessments.

The proposed National Environmental Standards should include a specific standard on best practice Indigenous engagement. The purpose of the Standard is to ensure that Indigenous Australians who speak for and have traditional knowledge of Country have had the proper opportunity to contribute to decisions made under the EPBC Act.

The role of the IAC should be substantially recast. The EPBC Act should establish an Indigenous Knowledge and Engagement Committee, responsible for providing the Commonwealth Minister with advice on a Standard for Indigenous engagement. This should include the development and application of the Standard, and ensuring its effectiveness through monitoring, evaluation and review.

Indigenous Australians seek, and are entitled to expect, stronger national-level protection of their cultural heritage

Places of natural and cultural value that are important to the world or Australia can be recognised and protected by listing them as National Heritage or World Heritage under the EPBC Act. At the national level, Indigenous cultural heritage is protected under numerous other Commonwealth laws, including the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act). The ATSIHP Act can be used by Aboriginal and Torres Strait Islander people to ask the Commonwealth Environment Minister to protect an area or object where it is under threat of injury or desecration and where state or territory law does not provide for effective protection.

Contributions to the Review have highlighted the importance of cultural heritage issues being dealt with early in a development assessment process. However, under the ATSIHP Act, the timing of a potential national intervention is late in the development assessment and approval process.

Indigenous Australians have emphasised to the Review the importance of the Commonwealth’s ongoing role in Indigenous cultural heritage protection. Because the states and territories also play a key role in the legal framework for Indigenous heritage protection, the arrangements of the jurisdictions need to work well together to avoid duplication or regulatory gaps.

The current laws that protect Indigenous cultural heritage in Australia need comprehensive review. This review should explicitly consider the role of the EPBC Act in providing national-level protections. It should also consider how comprehensive national-level protections are given effect, for example how they interact with the development assessment and approval and regional planning processes of the Act.

The EPBC Act does not meet the aspirations of Traditional Owners for managing their land

The EPBC Act provides the legal framework for the joint management of three Commonwealth National Parks—Kakadu, Uluṟu-Kata Tjuṯa and Booderee. Traditional Owners lease their land to the Director of National Parks (DNP), a statutory position established under the Act. For each of these parks, a joint management board is established to work in conjunction with the DNP.

The structure of the DNP means that position is ultimately responsible for decisions made in relation to the management of national parks, and for the effective management of risks such as those relating to occupational health and safety. Given this responsibility, the DNP has made decisions contrary to the recommendations of joint boards or has made a decision when the joint board has been unable to reach a consensus view. The contributions to the Review from Traditional Owners and the Land Councils who support them, indicate that the current settings for joint management fall short of their aspirations for genuine joint decision-making or indeed sole management.

The first step is to reach consensus on the long-term goals for jointly managed parks, and the nature of the relationship between Traditional Owners and the Commonwealth. The policy, institutional and transition arrangements required to successfully achieve these goals should then be co-designed with Traditional Owners.

Reforms should be co-designed with Indigenous Australians

This Review has highlighted significant shortcomings in the way the views, aspirations, culture, values and knowledge of Indigenous Australians are supported by the EPBC Act.

The Australian Government has committed to recognising improved outcomes for Indigenous Australians through enabling co-design and policy implementation with them. This commitment is reflected in COAG’s commitments in the Partnership Agreement on Closing the Gap 2019-2029. The proposed Indigenous Knowledge and Engagement committee should play a key leadership role in the co-design of reforms.

Legislative complexity

The EPBC Act is complex, its construction is archaic, and it does not meet best practice for modern regulation. Complex legislation makes it difficult, time-consuming and expensive for people to understand their legal rights and obligations. This leads to confusion and inconsistent decision-making, creating unnecessary regulatory burdens for business, and restricting access to justice.

The policy areas covered by the EPBC Act are inherently complex. The way the different areas of the Act work together to deliver environmental outcomes is not always clear and many areas operate in a largely siloed way. There is a heavy reliance on detailed prescriptive processes that are convoluted and inflexible, meaning engaging with the Act is time-consuming and costly. This is particularly the case for environmental impact assessment. Convoluted processes are made more complex by key terminology being poorly defined or not defined at all.

In the short-term, legislative amendments to the EPBC Act are required to address known inconsistencies, gaps, and conflicts in the Act. In the longer-term, comprehensive redrafting of the Act (or a new set of related Acts) is required. This should be done following the development of the key reforms proposed by this Review. During re-drafting, consideration should be given to dividing the Act, creating separate pieces of legislation for the key functional areas of the Act, or along thematic lines. This will ensure that legislation is developed in a way that supports the desired approach, rather than inadvertently hindering it.

Efficiency

A key criticism of the EPBC Act is that it duplicates state and territory regulatory frameworks for development assessment and approval. The Review has found that, with a few exceptions, this is largely true.

There is no systematic way to determine the additional environmental benefits resulting from the EPBC Act. There are examples where the Act has led to demonstrably different environmental outcomes than those arising from state and territory processes. While far from perfect, the EPBC Act requirement for ‘like-for-like’ offsets exceeds those in some jurisdictions and results in additional or different conditions placed on projects resulting in better outcomes than would have otherwise been the case.

Frustration rightly arises when Commonwealth regulation does not, or does not tangibly, correspond to better environmental outcomes, given the additional costs to business of dual processes.

Efforts made to harmonise and streamline with the states and territories have not gone far enough

The EPBC Act allows for the accreditation of state and territory laws and management systems for both assessments and approvals.

Under a bilateral assessment agreement, the Commonwealth retains responsibility for approvals, based on environmental impact assessments undertaken by the jurisdictions. For the 5-year period between July 2014 and June 2019, 37% of proposals under the EPBC Act were assessed (or are still being assessed) through either a bilateral assessment (25%) or accredited assessment (12%) arrangements with jurisdictions. The proportion of projects covered by an assessment bilateral agreement is limited, because not all state and territory processes can deliver an adequate assessment of matters that are protected under the EPBC Act.

Approval bilateral agreements have never been implemented. Under this type of agreement, the Commonwealth would devolve its approval decision-making powers to a state or territory decision-maker. Under the current settings, the mechanism to devolve approval decisions is inherently fragile. Particularly important amendments are needed to:

• enable the Commonwealth to complete an assessment and approval if a state or territory is unable to

• ensure agreements can endure minor amendments to state and territory settings, rather than requiring the bilateral agreement to be remade (and consequently be subject to disallowance by the Australian Parliament on each occasion).

These and other necessary amendments have failed to garner support in the Australian Parliament. In 2015 the Parliament did not support these amendments, in response to significant community concerns about the ability of states and territories to uphold the national interest when applying discretion in approval decisions.

Legally enforceable National Environmental Standards provide a clear pathway for greater devolution

The foundational intergovernmental agreements on the environment envisaged that jurisdictions would accommodate their respective responsibilities in each other’s laws and regulatory systems, where possible. This is a sound ambition, and one that governments should continue to pursue.

The National Environmental Standards proposed by the Review would provide a legally binding mechanism to provide confidence to support greater devolution. Accrediting an alternative regulator would be on an ‘opt-in’ basis, and they would need to demonstrate that their system can achieve the National Environmental Standard. This may require states and territories to adapt their regulations to meet National Environmental Standards and to satisfy accreditation requirements.

The proposed devolution model involves 5 key steps:

• National Environmental Standards—to set the benchmark for protecting the environment in the national interest and provide the ability to measure the outcomes of decisions. 

• State or territory or other suitable authority to demonstrate that their systems meet National Environmental Standards—this element includes a formal check to give confidence that arrangements are sound. 

• Formal accreditation by the Commonwealth Minister—this element is intended to provide accountability and legal certainty, and the Commonwealth Minister should seek the advice of the proposed Ecologically Sustainable Development Committee prior to an accreditation decision. 

• A transparent assurance framework—this element provides confidence that parties are implementing the processes and policies as agreed. It should include the mechanisms for the Commonwealth to step in when it is in the national interest to do so. 

• Regular review and adaptive management—this ensures decision-making contributes to the objectives established in the Standards. Pursuing greater devolution does not mean that the Commonwealth ‘gets out of the business’ of environmental protection and biodiversity conservation. Rather, the reform directions proposed would result in a shift with a greater focus on accrediting and providing assurance oversight of the activities of other regulators, and in ensuring national interest environmental outcomes are being achieved.

Commonwealth-led assessments and approvals should be further streamlined

The Commonwealth should retain its capability to assess and approve projects. Commonwealth assessments and approvals will be required where: 

• accredited arrangements are not in place or cannot be used at the request of a jurisdiction 

• when the Commonwealth exercises its ability to step in on national interest grounds

• when the activity occurs on Commonwealth land, or

• when the activity is undertaken by a Commonwealth agency outside a state's jurisdiction.

The Review has identified opportunities to streamline environmental impact assessments and approvals conducted by the Commonwealth. The most significant gains will be realised by fundamental changes to the way the EPBC Act works. Reform proposals including the development of National Environmental Standards and regional plans, and improvements in the data, information and regulatory systems discussed further in this report are central to improving the quality and efficiency of Commonwealth-led processes.

Streamlining the assessment pathways available under the EPBC Act will reduce the complexity of and efficiencies in the current process. The first step in all assessment pathways is known as ‘referral’, where the decision-maker determines whether a proposal requires more detailed assessment. For proposals where the need for detailed assessment and the relevant environmental matters are obvious, the referral creates an additional, pointless step in the process.

For other proposals, the lack of clarity on the requirements of the EPBC Act means that proponents refer proposals for legal certainty. More than half of all referrals result in a decision that detailed assessment and approval is not required, or not required so long as it is carried out in a particular manner. National Environmental Standards and regional plans will provide clarity on impacts that are acceptable, and those which will require assessment and approval, enabling the referral step to be avoided.

Other Commonwealth environmental management laws interact with the EPBC Act

The EPBC Act operates in a way that seeks to recognise other environmental regulatory and management frameworks, including the management of Commonwealth fisheries, Regional Forest Agreements (RFAs) and offshore petroleum activities. The interplay between the Act and these other frameworks is often more onerous than it needs to be.

The Australian Fisheries Management Authority (AFMA) is responsible for the day-to-day management and compliance of Commonwealth fisheries. Assessments under the EPBC Act are conducted on the environmental performance of all export fisheries and all Commonwealth-managed fisheries to ensure that fisheries are managed in an ecologically sustainable way. There are opportunities to streamline the multiple assessment and permitting processes needed to undertake commercial fishing operations in Commonwealth waters or jointly managed fisheries. Given the maturity of the fisheries management framework administered by AFMA, and the improvement in environmental outcomes that have resulted, the Review is confident that further streamlining can be achieved while maintaining assurance in the outcomes.

An RFA is a regional plan, agreed between a state and the Commonwealth for management of native forests. RFAs balance economic, social and environmental demands on forests and seek to deliver ecologically sustainable forest management, certainty of resource access for the forest industry and protection of native forests as part of Australia’s national reserve system. The EPBC Act recognises the Regional Forest Agreements Act 2002 (RFA Act), and EPBC Act assessment and approvals are not required for forestry activities conducted in accordance with an RFA (except where forestry operations are in a World Heritage property or a Ramsar wetland).

During the course of this Review, the Federal Court found that an operator had breached the terms of an RFA and should therefore be subject to the ordinary controlling provisions of the EPBC Act. Legal ambiguities in the relationship between EPBC Act and the RFA Act should be clarified, so that the Commonwealth’s interests in protecting the environment interact with the RFA framework in a streamlined way.

Increase the efficiency of the regulation of wildlife trade

The EPBC Act gives effect to Australia’s obligations as a member of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), including the international movement of wildlife specimens. The requirements of the Act exceed Australia’s obligations under CITES. Aspects of wildlife trade provisions in the Act result in administrative process and costs for individuals, business and government, while affording no additional protection to endangered species. The Act should be amended to align its requirements with CITES and to provide for a more efficient permitting process.

Trust in the EPBC Act

The community and industry distrust the EPBC Act, and there is merit in their concerns

The community and industry do not trust the EPBC Act and the regulatory system that underpins its implementation.

A dominant theme in the 30,000 contributions received by the Review is that many in the community do not trust the EPBC Act to deliver for the environment. Limited access to information about decisions and the lack of opportunity to substantively engage in decision-making under the Act further erodes trust.

The EPBC Act and its processes focus on the provision of environmental information, yet the Commonwealth Minister can and should consider social and economic factors when making an approval decision. The community can’t see how these factors are weighed in EPBC Act decisions. Under the current arrangements, this leads to concern that the environment loses out to other considerations as proponents have undue influence on decision-makers.

The EPBC Act is also not trusted by industry. They generally view it as cumbersome, pointing to duplication, slow decision-making, and legal challenges being used as a tool to delay projects and drive up costs for business (often called ‘lawfare’).

An underlying theme of industry distrust in the EPBC Act relates to perceived duplication with state and territory processes and the length of time it takes to receive an approval. On average, complex resource sector projects can take nearly 3 years, or 1,013 days to assess and approve, and this is too long. Recent provision of additional resources has improved on-time approval decisions from 19% to 87% of key decisions made on time.

Lengthy assessment and approval processes are not all the result of a slow Commonwealth regulator. On average, the process is under the management of the proponent for more than three quarters of the total assessment time, indicative of the time taken to navigate current requirements and collect the necessary information for assessment documentation. For business, time is money. Delays, regardless of when they occur, can result in significant additional costs, particularly on large projects.

Legal standing and review

The Review has received highly conflicting evidence and viewpoints about the appeal mechanisms under the EPBC Act. Where concerns arise about environmental outcomes associated with a decision, public focus turns to challenging high profile decisions. Legal review is used to discover information and object to a decision, rather than its proper purpose to test and improve decision-making consistent with the law. Industry is very concerned about the delay to projects that can arise from politically-motivated legal challenges.

The public discourse on legal challenges is focused on large projects, with considerable economic benefits that are in highly valued environmental areas. Pro-development groups argue that the extended standing provisions (standing beyond a person directly affected by a decision) should be removed from the Act.

The Review is not yet convinced that extended standing should be curtailed. Broad standing remains an important feature of environmental legislation, particularly given the presence of collective harm resulting from damage to environmental or heritage values. The evidence suggests that standing has not been interpreted broadly by the courts. The courts have the capacity to deal with baseless or vexatious litigation and litigation with no reasonable prospect of success can be dismissed in the first instance. It may though be beneficial for the EPBC Act to require an applicant seeking to rely on the extended standing provisions to demonstrate that they have an arguable case, or that the case raises matters of exceptional public importance before the matter can proceed.

In a mature regulatory framework, judicial and merits review operate in concert. Judicial review helps ensure legal processes are followed, complemented by merits review to ensure decisions are meeting the intent of the legislation, not simply following processes.

Full merits review is not advised. Opening decisions on appeal or review to the admission of new documentation or materials for consideration delays decisions without necessarily improving outcomes. It also promotes forum shopping.

Reforms to the EPBC Act should focus on improving transparency of decision-making, to reduce the need to resort to court processes to discover information. Legal challenges should be limited to matters of outcome, not process, to reduce litigation that does not have a material impact on the outcome.

Adjustments to legal review provisions should be made to provide for limited merits review ‘on the papers’. This form of review limits the considerations to those matters that were raised and maintained by the applicant during the due course of the regulatory decision or matters arising from a demonstrable material change in circumstances.

Transparent independent advice can improve trust in the EPBC Act

Low levels of trust are an underlying driver behind calls for independent institutions to be established to make decisions under the EPBC Act. This solution is not supported by the Review. It is entirely appropriate that elected representatives (and their delegates) make decisions that require competing values to be weighed and competing national objectives to be balanced.

Community confidence and trust in the process could be enhanced by the provision of transparent, independent advice on the adequacy of information provided to a decision-maker.

The statutory advisory committee structures in the EPBC Act should be recast. An Ecologically Sustainable Development (ESD) Committee should be established, comprising an independent chair and the chairs of these committees:

• Information and Knowledge (to advise on science, social impacts, economics and traditional knowledge) 

• Indigenous Knowledge and Engagement (to advise on the co-design of reforms and the National Environmental Standard for Indigenous engagement) 

• Threatened Species Science (to advise on the status of threatened species and ecological communities and actions needed to improve their condition in regional recovery plans) 

• Australian Heritage Council (as established under the Australian Heritage Council Act 2003—to advise on heritage matters) 

• A committee with water resources expertise (to advise on the impacts of projects subject to the water trigger).

The ESD Committee should provide transparent advice to the Minister to inform decisions on the making of National Environmental Standards, regional plans, and the accreditation of arrangements for devolving decision-making. The Commonwealth Minister could ask for their advice on other decisions, where they had relevant expertise.

Data, information and systems

Decision-makers, proponents and the community do not have access to the best available data, information and science. This results in sub-optimal decision-making, inefficiency and additional cost for business, and poor transparency to the community. The Department’s systems for information analysis and sharing are antiquated. Cases cannot be managed effectively across the full lifecycle of a project, and the user experience is clunky and cumbersome for both proponents and members of the community interested in a project.

The collection of data and information is fragmented and disparate. There is no single national source of truth that people can rely on. This adds cost for business and government, as they collect and recollect the information they need. It also results in lower community trust in the process, as they question the quality of information on which decisions are made, and the outcomes that result from them.

A national ‘supply chain’ of information is required so that the right information is delivered at the right time to those who need it. This supply chain should be an easily accessible ‘single source of truth’ on which the public, proponents and governments can rely. A custodian for the national environmental information supply chain is needed, and the Commonwealth should clearly assign responsibility for national level leadership and coordination. Adequate resources should be provided to develop the systems and capability that are needed to deliver the evidence base for Australia’s national system of environmental management. The recent financial commitment from the Australian Government and the Western Australian Government to the collaborative Digital Environmental Assessment Program is a good first step in this direction. The program will deliver a single online portal for assessments and biodiversity databases.

In the short-term, the granularity of National Environmental Standards is limited by the information available to define and apply them to decision-making. A quantum shift in the quality of information is required to transform standards from qualitative indicators of outcomes to quantified measures of outcomes. To apply granular standards to decision-making, governments need the capability to model the environment, including the probability of outcomes from proposals. To do this well, investment is required to improve knowledge of how ecosystems operate and to develop the capability to model them. This requires a complete overhaul of the systems to enable improved information to be captured and incorporated into decision-making.

Monitoring, evaluation and reporting

There is no effective framework to support a comprehensive, data-based evaluation of the EPBC Act, its effectiveness in achieving intended outcomes, and the efficiency of implementation activities. The Act includes some requirements for monitoring and reporting. These are not comprehensive, and follow-through is largely focused on bare minimum administrative reporting, rather than genuine monitoring and evaluation of outcomes to learn lessons, adapt and improve.

The development of a coherent framework to monitor and evaluate the effectiveness of the EPBC Act in achieving its outcomes and the efficiency of its implementation is needed. Key reforms proposed by this Review, particularly the establishment of National Environmental Standards and regional plans, provide a solid foundation for the development of a monitoring and evaluation framework for the Act as a whole. The framework must be backed in by commitment to its implementation.

The national State of the Environment (SoE) report is the established mechanism that seeks to ‘tell the national story’ on Australia’s system of environmental management. While providing an important point in time overview, the report is an amalgam of insights and information, and does not generate a consistent data series across reports. It lacks a clear purpose and intent. There is no feedback loop, and as a nation there is no requirement to stop, review, and where necessary change course.

A revamp of SoE reporting is required. The national SoE report should examine the state and trends of Australia’s environment, and the underlying drivers of these trends, including interventions that have been made. National environmental economic accounts will be a useful tool for tracking Australia’s progress to achieve ESD. The SoE report should provide an outlook and the government should be required to formally respond, identifying priority areas for action, and the levers that will be used to act.

Efforts to finalise the development of these accounts should be accelerated, so that in time they can be a core input to SoE reporting.

Restoration Given the state of decline of Australia’s environment, restoration and adaptation are required to enable future development to be sustainable. Available habitat needs to grow to be able to support both development and a healthy environment.

Environmental offsets do not offset the impacts of developments

Under the current arrangements, as a condition of approval, developers can be required to protect areas similar to that which has been destroyed or damaged. This is known as an environmental offset.

Environmental offsets are often poorly designed and implemented, delivering an overall net loss for the environment. The stated intent of the offsets policy is to encourage proponents to exhaust reasonable options to avoid or mitigate impacts. In practice, offsets have become the default negotiating position, and a standard condition of approval, rather than only used to address residual impacts.

Offsets do not offset the impact of development, and overall there is a net loss of habitat. Proponents are permitted to clear habitat in return for protecting other areas of the same habitat from future development. It is generally not clear if the area set aside for the offset is at risk from future development.

Offsets need to include a greater focus on restoration and should be enshrined in the law. The EPBC Act should require that offsets only be considered when options to avoid and then mitigate impacts have been demonstrably exhausted. Where applied, offsets should deliver genuine restoration, avoiding a net loss of habitat.

There is an opportunity to incentivise early investment in restoration. If offsets were to be supported with greater certainty under the EPBC Act, then this could be the catalyst for a market response. Proponents are generally not in the business of managing habitats as their core business. There are, however, expert land managers and specialist project managers who deliver these services. The right policy and legal settings would provide certainty for these players to invest in landscapes, confident that proponents will be in the market to purchase offsets based on these investments down the track.

There are opportunities for restoration beyond the EPBC Act

There are opportunities beyond the EPBC Act that should be explored to accelerate investment in restoration.

The carbon market, which already delivers restoration, could be better leveraged to deliver improved biodiversity outcomes. The Australian Government has recently agreed to carbon market reforms that will increase the competitiveness of carbon-farming when compared to other land uses. More could be done if credit for biodiversity outcomes could be ‘stacked’ on top of carbon credits, with one area of land delivering both carbon and biodiversity outcomes.

There is an opportunity to provide the policy settings to better leverage private interest in investing in the environment as well as drive down the cost of restoration. Globally, there is growing interest from the philanthropic and private sectors to invest in a way that improves environmental outcomes. A biodiversity market is one destination for this capital, another is co-investment to bring down the cost of environmental restoration, growing the habitat available to support healthy systems. The merits of the application of these types of models for investing in environmental improvement will be further explored prior to the finalisation of the Review.

Compliance, enforcement and assurance

Monitoring, compliance, enforcement and assurance under the EPBC Act is ineffective

There has been limited activity to enforce the EPBC Act over the 20-year period it has been in effect, and the transparency of what has been done is low.

While the Department has improved its regulatory compliance and enforcement functions in recent years, it still relies on a collaborative approach to compliance and enforcement. This is too weak.

Serious enforcement actions are rarely used, indicating a limited regard for the benefits of using the full force of the law where it is warranted. When issued, penalties are not commensurate with the harm of damaging a public good of national interest. Since 2010, a total of 22 infringements have been issued for breaches of conditions of approval, with total fines less than $230,000. By way of contrast, individual local governments frequently issue more than this amount in paid parking fines annually.

The compliance and enforcement powers in the EPBC Act are outdated. Powers are restrictive and can only be applied in a piecemeal way across different parts of the Act due to the way it is constructed. The complexity of the legislation, impenetrable terminology and the infrequency with which many interact with the law, make both voluntary compliance and the pursuit of enforcement action difficult.

A strong, independent cop on the beat for monitoring, compliance and enforcement is required

An independent compliance and enforcement regulator that is not subject to actual or implied direction from the Commonwealth Minister should be established. The regulator should be responsible for monitoring compliance, enforcement, monitoring and assurance. It should be properly resourced and have available to it a full toolkit of powers.

Penalties and other remedies for non-compliance and breaches of the EPBC Act and the National Environmental Standards need to be adequate to ensure that compliance is regarded as mandatory not optional. The costs of non-compliance should not be regarded as simply a cost of doing business.

The Commonwealth Minister must retain responsibility for setting the rules (including making decisions and setting conditions for development approvals), but the regulator should be responsible for enforcing them.

The compliance and enforcement regulator must have a clear and strong regulatory stance. It remains important to be proportional, and to work with people where inadvertent non-compliance has occurred. However, the regulator needs to establish a culture that does not shy from firm action where needed.

An independent compliance and enforcement regulator will build public trust in the ability of the law to deliver environmental outcomes and that breaches of the law will be fairly, proactively and transparently managed. Strong compliance and enforcement activities protect the integrity of most of the regulated community—who spend time and money to comply with the law—with those who break the rules facing appropriate consequences.

Devolved decision-making needs strong assurance

The Review proposes reforms that will support greater devolution in decision-making. Clear, legally enforceable National Environmental Standards combined with strong assurance are essential to community confidence in these arrangements. The independent compliance and enforcement regulator should play a key role in providing assurance of devolved arrangements.

This will require a focus on oversight of these devolved and strategic arrangements, including auditing the performance of devolved decision-makers. The devolved decision-maker should remain primarily responsible for project-level monitoring, compliance, enforcement and assurance, and transparently report actions taken. The Commonwealth should also retain the ability to intervene in project-level compliance and enforcement, where egregious breaches are not being effectively enforced by the state or territory regulator.

The reform pathway

The EPBC Act is ineffective, and reform is long overdue. Past attempts at reform have been largely unsuccessful. Commitment to a clear pathway for reform is required. The reform agenda proposed is not one to ‘set and forget’. Settings should be monitored and evaluated, and the path forward adjusted as lessons are learnt and new information and ways of doing things emerge.

Effective administration of a regulatory system is not cost free. The reforms proposed seek to improve the overall efficiency of the system. It is important to consider how to best fund the implementation of a reformed system, including the fair costs that should be recovered from proponents. In principle, government should pay for elements that are substantially public benefits (for example, the development of standards), while business should pay for those elements of the regulatory system required because they derive private benefits by impacting the environment (for example, approvals and monitoring, compliance and enforcement). There are elements of the regulatory system that have mixed benefits where costs should be shared (for example, data and information).

Immediate steps to start reform should be taken. In the first instance, amendments should be made to: 

• fix duplication, inconsistencies, gaps and conflicts 

• enable National Environmental Standards to be made 

• improve the durability of the settings for devolved decision-making. 

Interim National Environmental Standards should be made, to set clear rules for decision-making and to support greater devolution in decision-making.

Similarly, in the short-term, the conversation should focus on delivering complex reforms and the mechanisms to underpin continuous improvement so that the policy development and implementation plans can be finalised and resourcing commitments made. These reforms include:

• reforms to establish the framework for monitoring, reporting and evaluating the performance of the EPBC Act, with a key focus on the arrangements for National Environmental Standards 

• starting the conversation with the states and territories about state and territory-led regional planning priorities and priorities for strategic national plans 

• committing to sustained engagement with Indigenous Australians, to co-design reforms that are important to them—the culturally respectful use of their knowledge, effective national protections for their culture and heritage, and working with them to meet their aspirations to manage their land in partnership with the Commonwealth 

• appointing a national data and information custodian, responsible for delivering an information supply chain and overhauling the systems needed to capture value from the supply chain 

• establishing the mechanisms to better leverage investment, to deliver the scale of restoration required for future development in Australia to be sustainable.

Once the policy direction is settled, and key initiatives are underway, the final phase of reform should involve complete legislative overhaul to establish the remaining elements of reform and to focus on implementing the reformed system.

The proposed reforms seek to build community trust that the national environmental laws deliver effective protections and regulate businesses efficiently. It is impossible for the Review to satisfy the aspirations of every person with an interest in the environment or in business development. Rather, the Review has attempted to provide a way forward, to ensure effective environment protection and biodiversity conservation and efficient regulation of business. The EPBC Act in its current form achieves neither.

The proposed reforms are substantial, but the changes are necessary to set Australia on a path of ESD. This path will deliver long-term economic growth, environmental improvement and the effective protection of Australia’s iconic places and heritage for the benefit of current and future generations