TMBF submission re: EPBC ActProfessor Graeme Samuel AC
EPBC Act Review Secretariat
Department of Environment and Energy

17 April 2020

Dear Prof Samuel,

Re: Submission to the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999

The Moreton Bay Foundation welcomes the opportunity to make a submission as part of the review of the EPBC Act 1999. The Moreton Bay Foundation is a Registered Environmental Organization and charity with DGR status, whose mission is to focus expertise, wisdom and enthusiasm for the benefit of Moreton Bay. The Board of The Moreton Bay Foundation is informed by a Research Advisory Committee and Fundraising Committee. Our members include: Quandamooka Yoolooburrabee Aboriginal Corporation (QYAC) the Registered Prescribed Body Corporate managing the native title rights and interests of the Quandamooka people; four major research institutions – The University of Queensland, Griffith University, Queensland University of Technology and the University of the Sunshine Coast, along with individuals concerned for the future of Moreton Bay.

Moreton Bay has exceptional biological diversity, coral reefs, sand islands and mangroves with a catchment population approaching 3 million people. The Quandamooka native title claim was partially based on occupation records dating back some 20,000 yrs. It the most rapidly growing urban area in the country. For the future of Moreton Bay, a strong and resilient EPBC Act is essential. The Moreton Bay Foundation consider the discussion paper deficient regarding this matter.

Our principal concern is that there is an apparent aspiration in the discussion paper to ease restrictions on development using either a biodiversity offset market or environmental trust fund. Typically, developers undervalue the environment and our communities lose irreplaceable habitats. Moreover, development applications are seemingly considered in isolation and there seems to be a lack of a framework to assess incremental (shifting baselines) and negative synergistic effects (unforeseen consequences) in which a development is considered on its own merits and not in terms of the cumulative framework of developments in a region.

Our submission addresses these weaknesses under the questions posed in the request for submissions.

Please do not hesitate to contact us for any further follow up.

Suzie Christensen
Chief Executive Officer

QUESTION 1: Some have argued that past changes to the EPBC Act to add new matters of national environmental significance did not go far enough. Others have argued it has extended the regulatory reach of the Commonwealth too far. What do you think?

Currently matters of national environmental significance include many of Australia’s commitments to international conventions and treaties. Climate change is the most significant influence on the ability to meet these commitments as it affects World Heritage sites, threatens species, and harms wetlands such as the Moreton Bay Ramsar Wetland. Climate change is also the subject of an important international agreement (Paris Agreement 2016) – therefore consideration should be given to the addition of Climate (and the associated impacts from anthropogenic climate change) as a Matter of National Environmental Significance (i.e. Any actions that will significantly reduce Australia’s ability to reach our undertakings in climate change agreements).

In addition, marine areas are currently poorly protected, often due a dearth of information. Coastal zones and habitats are the most used and fragmented landscapes in Australia due to their high human population densities, urban and peri-urban development within 50 km of Australia’s coastlines. Strengthened protection for this landscape type will enhance efforts to preserve and enhance biodiversity in accordance with the objectives of the Act.

We disagree that the Commonwealth’s reach is extended too far.

QUESTION 2: How could the principle of ecologically sustainable development (ESD) be better reflected in the EPBC Act? For example, could the consideration of environmental, social and economic factors, which are core components of ESD, be achieved through greater inclusion of cost benefit analysis in decision making?

There are FIVE principles of ESD, and the effective integration of long term and short term economic, environmental and social considerations in decision making is only one. All principles are equally important. It will be critical to ensure that the objects of the Act itself (protection of environment and biodiversity conservation) are not undermined by further attempts to monetize the environment (which tends to be done poorly) and thus allow economic benefit to ‘trump’ costs to the environment.

Cost benefit analysis implies that a tradeoff can be made if one option (usually development) has a greater economic value that another. Rather than amplify the short-term economic benefit, greater emphasis should be placed on the conservation of biological diversity and ecological integrity of a healthy environment  being a fundamental consideration in decision making.

Further, increased recognition of the intrinsic social value and health benefits people associated with the environment should be considered in decision making. In Moreton Bay, a study found that 88% of people expressed a humanistic and 83% a naturalistic value with waterways, expressing deep emotional connection and placing importance on the ability to immerse oneself in nature (Ross  et al. 2019).

There should be no net loss of biodiversity and ecological integrity as a result of development, particularly as evidence that threatened species listing and species extinctions continue at an unprecedented scale in Australia (Ward 2019) despite the existing EPBC Act and subordinate legislation across multiple jurisdictions.

Further, the precautionary principle should be applied with greater recognition of both climate change, and the lack of data and knowledge resulting from insufficient monitoring and research, particularly with respect to marine ecosystems and species.

The full suite of ESD principles could be better reflected in the act through the requirement for proponents of referable actions to demonstrate compliance with these principles.

QUESTION 3: Should the objects of the EPBC Act be more specific?

We believe they are currently adequate, if they were upheld. However, the EPBC Act is more often viewed as an obstacle for development and the process by which environmental destruction can happen with an approval.

QUESTION 4: Should the matters of national environmental significance within the EPBC Act be changed? How?

The listing of ‘marine environment’ could be enhanced by the inclusion of additional habitat types, e.g., coral reefs outside the Great Barrier Reef Marine Park, and the important intertidal and subtidal benthic zones. Moreover, estuaries are vital as they both support many Australian fisheries but are also the site of many of the most serious interactions between humans and the environment, as well as hosting rich seagrass and mangrove communities.

In the driest inhabited continent in the world, protection of water resources in general should be included, not just from coal seam gas and large coal mining development. This should particularly take a long-term view and factor in the impacts of climate change, population growth and development.

The inclusion of listed threatened species and listed migratory species remains critical; however, it is likely that many more species are yet to be identified as at risk. The act needs to incorporate mechanisms to extend protections as new data are developed on at risk species and habitats.

Further enhancements to the achievement of the objects of the Act could occur through the inclusion of habitat connectivity. Preservation of a specific MNES (such as a Ramsar wetland like Moreton Bay, for example) should take into account the connectivity between surrounding habitat to cater for pathways essential for breeding and maturation stages of many species.

For example, many of Australia’s coastal fisheries are dependent on estuarine and coastal productivity, ecosystem health and connectivity. Protections that extend to multiple continuous habitat types will provide greater resilience to our fisheries and the businesses and communities that are dependent upon them (Olds et al., 2019). Impacts of development that impedes the passage of migratory fishes need to be ameliorated given that migratory fishes in Australian estuaries and rivers are largely catadromous; that is, the juveniles make upstream migration from spawning grounds lower in the system. Barriers to movement that would be trivial for anadromous species (e.g. Salmon) are impassible to upstream-migrating catadromous species (Harris 2001).

QUESTION 5: Which elements of the EPBC Act should be priorities for reform? For example, should future reforms focus on assessment and approval processes or on biodiversity conservation? Should the Act have proactive mechanisms to enable landholders to protect matters of national environmental significance and biodiversity, removing the need for regulation in the right circumstances?

In our opinion, we certainly do not need a further focus on making the assessment and approval process easier for development– the Act’s broader objectives have been overtaken by an almost singular use of the EPBC Act as a piece of legislation to be overcome to obtain a development approval.

It is very rare for a development assessed under the EPBC Act, to be disallowed, with conditions invariably providing for loss of ecological integrity. Since 2000, only 4 of 3058 referred actions to remove habitat have been deemed ‘clearly unacceptable’ (0.1%) and 2252 (74%) deemed ‘not a controlled action hence not requiring approval to proceed (Ward et al. 2019). The Act could categorically and specifically rule out development in some circumstances (e.g. known threatened species habitat), or areas (e.g. Ramsar-listed sites such as Moreton Bay) rather than simply allowing for conditioning.

More alarming, however, is the evidence that 93% of potential habitat cleared since Act came into force in 2000 was not referred and therefore received no Federal government scrutiny (Ward et al. 2019). Since the EPBC Act’s introduction, 85% of all terrestrial threatened species have experienced some habitat loss. One million ha of potential habitat for the iconic koala (including in the Moreton Bay catchment) was lost to clearing from 2000-2017, indicative of the pressures and trend contributing to Australia having the worst extinction rate of any nation in the world (Ward 2019). This fact alone demonstrates that the EPBC Act has failed to meet its objectives to date, and that any reform process should focus on biodiversity conservation.

The Moreton Bay catchment is one of the mostly rapidly growing urban populations in the country, which continues to put enormous pressure on ecological integrity (Lyons M, Phinn S, Roelfsema C. 2019). 21% of applications to remove MNES habitat were residential developers in the 2000-2017 period ((Ward et al. 2019). This has a flow on effect to cause hardening of surfaces and erosion, driving poor water quality in the Ramsar listed Moreton Bay, home to the southernmost population of herding dugong. There is a strong need through the review and reform process create a mechanism for consideration of the flow on effects to other MNES from a single development application.

A major improvement to the assessment and approval process would be the ability to assess cumulative impacts, in conjunction with the precautionary principle. Such consideration must take account not only of current works that have been completed, but other projects that are in the ‘pipeline’. Much environmental degradation and biodiversity loss has occurred through a combination of a ‘death by a thousand cuts’ and ignoring historical baselines in making assessments in the absence of a mechanism to assess cumulative impact. The increased use of bioregional planning and strategic assessments could assist.

Another consideration for reform of the assessment and approval process could be creating an approval process independent of government and the executive powers of the Minister. Currently the Minister can override the expert advice received by the Department and make a unilateral decision that is contrary to the Acts objectives and sound science. The decision to allow the Toondah Harbour development in the Redlands Shire (Qld) to progress to EIS, rather than accept the advice that the project would cause irreversible damage to the Ramsar-listed Moreton Bay wetland is an example where political intervention ignored best available science. Internationally, examples exist where independent bodies are established to ensure credible, transparent and evidence-based decision making.

State of the Environment (SOE) reporting and other national data indicate that despite the Act being in place for 20 years, species decline, biodiversity loss and destruction of cultural heritage is happening at an alarming rate (

These factors indicate that reform needs to focus on biodiversity protection and the reversal of ecological decline. There does not appear to be a mechanism that links the information and reporting that results from obligations under the Act (annual reporting and State of Environment Reporting) to exert any influence on future planning decisions and approvals.

The monitoring and compliance functions of the Act should be strengthened, to ensure that conditions on approvals and offsets are upheld.  Particularly that offsets are like for like in the broader context. For example, that damage to an ecosystem component that is connected to other habitats, that the impact on connected habitats is also considered.

Ecosystem-based resource management (Gullestad et al., 2017) is the new benchmark approach to resource management and should be widely applied. We must maintain ecosystem functionality instead of progressing development at the cost of ecosystem function and the services that provides to human communities and connected reserves (Gilby et al., 2018).

QUESTION 6: What high level concerns should the review focus on? For example, should there be greater focus on better guidance on the EPBC Act, including clear environmental standards? How effective has the EPBC Act been in achieving its statutory objectives to protect the environment and promote ecologically sustainable development and biodiversity conservation? What have been the economic costs associated with the operation and administration of the EPBC Act?

The Act has to a great extent been ineffective in achieving its objectives – see Q5. above re: species and habitat decline.

A contributing factor to the failure of the EPBC Act to achieve its objectives is the lack of any mechanism to regulate cumulative impact, and the of offsets which may provide better protection for similar habitat in another area – however there is still an overall loss.

High level concerns should be establishing the principle (or environmental standard) of no let loss, and consideration of the effects of and contribution to climate change in development assessments and approvals.

While it may be important to quantify the economic costs of administering the Act, it would be equally important to quantify the economic cost of the failures of the Act with respect to the loss of ecosystem services.

QUESTION 7: What additional future trends or supporting evidence should be drawn on to inform the review?

Climate change should be factored into all decisions. With particular reference to coastal communities, sea-level rise needs to be addressed by landward retreat of coastal development to prevent the extinguishment of key habitats, such as freshwater swamps, saltmarsh, mangrove and seagrass meadows). This requirement provides leverage internationally for strategies to slow and then reverse the effects of climate change.

QUESTION 8: Should the EPBC Act regulate environmental and heritage outcomes instead of managing prescriptive processes?

The Act should do both. Outcomes should be defined, AND a process for ensuring the are achieved and standards maintained. It would be counterproductive to divest the Commonwealth from its responsibilities to manage Matters of National Environmental Significance. The current system sees multiple jurisdictions responsible for planning, assessment, approval, regulation and monitoring across local government, state agencies and the Commonwealth with resultant poor outcomes for the Environment and Biodiversity Conservation.

QUESTION 9: Should the EPBC Act position the Commonwealth to take a stronger role in delivering environmental and heritage outcomes in our federated system? Who should articulate outcomes? Who should provide oversight of the outcomes? How do we know if outcomes are being achieved?

State of Environment Reporting (SOE) is already measuring the outcomes, embedded in legislation with responsibilities assigned across multiple levels. There should be a stronger requirement in the EPBC Act for government to respond to these reports against outcomes, particularly when negative trends are reported.

QUESTION 10: Should there be a greater role for national environmental standards in achieving the outcomes the EPBC Act seeks to achieve? In our federated system should they be prescribed through:

No formulated opinion.

QUESTION 11: How can environmental protection and environmental restoration be best achieved together?

Strategic and regional assessments could indicate not only what landscape functions must be protected but also what needs to be restored – allowing for restoration activities without further development applications and giving certainty.

  • Should the EPBC Act have a greater focus on restoration?

Yes. Environmental changes that are occurring due to climate change need to be addressed. Low lying islands are being extinguished by sea level rise. Increasing temperature are having major impacts on the sex ratios of threatened turtles, for example, whereby 99 per cent of juvenile green turtles in the feeding grounds of the northern Great Barrier Reef stock were female ( Interventions are now necessary and are increasingly seen as vital, with reengineering of beaches, to cool sand and relocate turtle hatchlings to other beaches and islands.

In addition, shellfish reef restoration projects have labored and languished in many states despite the enthusiasm of volunteers and the long track record of success of such interventions in other countries (e.g. Chesapeake Bay USA). Such interventions are replacing lost habitat and loss service of water quality improvement by filter-feeding organisms as well as carbon and nitrogen sequestration services.  Such projects need to be fast tracked and meaningful public engagement opportunities sought.

  • Should the Act include incentives for proactive environmental protection?

Yes. Incentivise the antidote to poor practice development and developers, and encourage best practice development and developers.

  • How will we know if we’re successful?

We will go forwards instead of backwards, reversing the current trends, which are monitored through the SOE process.

  • How should Indigenous land management practices be incorporated?

We recommend engaging with Indigenous communities directly concerning this matter.

QUESTION 12: Are heritage management plans and associated incentives sensible mechanisms to improve? How can the EPBC Act adequately represent Indigenous culturally important places? Should protection and management be place-based instead of values based?

We recommend engaging with Indigenous communities directly.

QUESTION 13: Should the EPBC Act require the use of strategic assessments to replace case-by-case assessments? Who should lead or participate in strategic assessments?

It is not a matter of either or. Both comprehensive strategic assessments AND case-by-case assessments have a place, dependent up on the scale and potential impact of the development, along with the complexity and number of MNES that could be affected.

Moreton Bay, for example, is a Ramsar Listed site, an important habitat for migratory birds under the JAMBA, CAMBA and ROKAMBA agreements, a state national park, contains declared fish habitat areas and is home to 6 of the world’s 7 marine turtle species. A strategic assessment could provide certainty about the limitations to development in this area, along with  approval for restoration activities such as for shellfish reefs.

It is important that any strategic assessment is underpinned by rigorous independent science, and evidence based bioregional planning.

By contract, smaller and potentially more intense development may require individual assessment to ensure scrutiny in a rapidly changing world, imperative when impacts are geographically specific and need to be placed in the local context (e.g., population of endangered frog makes activity X untenable in one location while the absence of such might make it acceptable in another).

QUESTION 14: Should the matters of national significance be refined to remove duplication of responsibilities between different levels of government? Should states be delegated to deliver EPBC Act outcomes subject to national standards?

No. The EPBC Act is the vital to safeguard/ backstop at the federal level for problematic decisions made at state or local government levels. The federal government is both better equipped and obliged to meet Australia’s international commitments.

QUESTION 15: Should low-risk projects receive automatic approval or be exempt in some way?

No. First define “low risk” and then pose the question. Low risk to whom, on what timescale and with what network of acceptable consequences? Automatic approval implies minimum process and scrutiny, which are unacceptable

  • How could data help support this approach?

This approach is not supported.

  • Should a national environmental database be developed?

Yes. This would better allow tracking of the cumulative effects of development.

  • Should all data from environmental impact assessments be made publically available?

Emphatically, yes. The data themselves can be challenged if deficient or used in subsequent studies if robust. However, many EIAs have the appearance of largely cursory field activities and repurposing of existing documents within the library of those conducting the EIAs. Ideally they need to be framed in a more scientifically sound, hypothesis driven approach.

QUESTION 16: Should the Commonwealth’s regulatory role under the EPBC Act focus on habitat management at a landscape-scale rather than species-specific protections?

It should do both. Habitat protection provides for multiple species, and if good bioregional planning is in place can also protect connectivity within and between habitats – essential for ecological integrity and function. However, species protection provides for those species that a transitory and migratory, particularly in marine ecosystems like Moreton Bay (rays, sharks, turtles, whales).

QUESTION 17: Should the EPBC Act be amended to enable broader accreditation of state and territory, local and other processes?

No. Accreditation would weaken the process. As it stands the Commonwealth is the only backstop to problematic state or local government decisions. (e.g., Toondah Harbour development).

QUESTION 18: Are there adequate incentives to give the community confidence in self-regulation?

If it is meant, by industry and developers, then experience would instruct an emphatic No. Self-regulation has very seldom worked, particularly in context where one might consider the ecosystem component part of a common right of access viz. the tragedy of the commons. Moreover, the tethering of those undertaking an environmental impact assessment (EIA) or ecological risk assessment (ERA) to the developer via the current system of the use of consulting engineers is untenable and the relationship should be dispensed with. An independent scientific and social scientific body should administer the process, engage the consultants who report to them, rather than to the company paying the consultant to progress the project.

QUESTION 19: How should the EPBC Act support the engagement of Indigenous Australians in environment and heritage management?


  • How can we best engage with Indigenous Australians to best understand their needs and potential contributions?

Ask them.

  • What mechanisms should be added to the Act to support the role of Indigenous Australians?

A requirement that Traditional Owners or Native Title holders consent be embedded in the decision-making process.

QUESTION 20: How should community involvement in decision making under the EPBC Act be improved? For example, should community representation in environmental advisory and decision-making bodies be increased?

Potentially, however community representatives need to be adequately resourced to do so.

QUESTION 21: What is the priority for reform to governance arrangements? The decision-making structures or the transparency of decisions? Should the decision makers under the EPBC Act be supported by different governance arrangements?

Consider an independent assessment body, supported by an independent science panel.

QUESTION 22: What innovative approaches could the review consider that could efficiently and effectively deliver the intended outcomes of the EPBC Act? What safeguards would be needed?

No comment

QUESTION 23: Should the Commonwealth establish new environmental markets? Should the Commonwealth implement a trust fund for environmental outcomes?

Legislation and regulatory frameworks are necessary to facilitate environmental markets however government intervention should be as minimalist as possible.

Any further injection in environmental outcomes would be welcomed, however is such a trust fund is to be established via offsets for biodiversity loss, the concept is not supported.

QUESTION 24: What do you see are the key opportunities to improve the current system of environmental offsetting under the EPBC Act?

Any use of offsets should be underpinned by a hard and fast principle of ‘no-net loss’ of habitat. Simply using the term ‘offset’ as justification to pay to pollute or destroy is unacceptable and limits the ability of the objects of the Act to be met.

Secondly, stronger monitoring and compliance requirements beyond the life of the project are required to ensure offsets are protected in perpetuity.

QUESTION 25: How could private sector and philanthropic investment in the environment be best supported by the EPBC Act?

  • Could public sector financing be used to increase these investments?
  • What are the benefits, costs or risks with the Commonwealth developing a public investment vehicle to coordinate EPBC Act offset funds?

The Moreton Bay Foundation is a charitable trust that exists to increase private sector and philanthropic investment in the environment, and hence is supportive of public private and philanthropic partnerships and their opportunity to leverage and harness the effort and action required to solve intractable problems.

Philanthropic investment should, however, only ever be used in addition to core government funding, and never instead of. Philanthropic investment such as that made by The Moreton Bay Foundation can be used to drive innovation and test novel concepts, and to fund pure research.

QUESTION 26: Do you have suggested improvements to the above principles? How should they be applied during the Review and in future reform?

The principle of ‘Achieving efficiency and certainty in decision making, including by reducing unnecessary regulatory burdens for Australians, businesses and governments’ is not supported.

In addition, “making decisions simpler’ should not be used as a basis for approving more development faster. It could be useful to categorically deny approval at the commencement of the referral process to achieve the objects of the Act.


In addition to the specific questions asked throughout this discussion paper, the broad questions that this review is seeking to answer are:

a)     Is the EPBC Act delivering what was intended in an efficient and effective manner?  How well is the EPBC Act being administered?

The extensive rates of species extinctions, habitat loss and biodiversity decline present in Australia would indicate that the EPBC Act is not delivering on its intended objectives.

b)     Is the EPBC Act sufficient to address future challenges? Why?

No. It requires inclusion of climate as Matter for National Environmental Significance, and the ability to deal with cumulative impact.

c)     What are the priority areas for reform?

A stronger focus of biodiversity conservation and environmental protection.

d)     What changes are needed to the EPBC Act? Why?

  • Independent assessment body, adequately resources and underpinned by scientific evidence
  • Inclusion of climate as Matter for National Environmental Significance
  • Inclusion of the ability to deal with cumulative impact
  • Stronger application of the precautionary principle, in light of climate risk and uncertainty and lack of information and adequate monitoring of species, particularly in the marine environment
  • Stronger requirement to act on State of Environment reporting

The questions in this discussion paper are provided as a guide only and are not intended to limit your comments. In providing your responses it will be helpful if you:

  • where possible, identify which parts of the EPBC Act your comments relate to
  • describe what is working well and what improvements can be made
  • explain what the impact of these improvements would be on you, others and the environment, and
  • provide any available data, evidence or case studies to support your views.


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Harris, J. (2001) Fish passage in Australia: Experience, challenges and projections, Proceedings of Third Australian Technical Workshop on Fishways, Sunshine Coast, Australia, August 30-31, 2001, pp 1-17.

Lyons M, Phinn S, Roelfsema C. 2019. Moreton Bay and catchment urban expansion and vegetation change. In Tibbetts, I.R., Rothlisberg, P.C., Neil, D.T., Homburg, T.A., Brewer, D.T., & Arthington, A.H. (Editors). Moreton Bay Quandamooka & Catchment: Past, present, and future. The Moreton Bay Foundation. Brisbane, Australia. Available from:

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Ross H, Jones N, Witt K, Pinner B, Shaw S, Rissik D, Udy J. (2019) Values towards Moreton Bay and catchments. In Tibbetts, I.R., Rothlisberg, P.C., Neil, D.T., Homburg, T.A., Brewer, D.T., & Arthington, A.H. (Editors). Moreton Bay Quandamooka & Catchment: Past, present, and future. The Moreton Bay Foundation. Brisbane, Australia. Available from:

Ward, MS, Simmonds, JS, Reside, AE, et al. (2019). Lots of loss with little scrutiny: The attrition of habitat critical for threatened species in Australia. Conservation Science and Practice. 1:e117.