The objective of the audit was to assess the effectiveness of the Department of the Environment’s regulation of proponents’ compliance with Part 9 of the Environment Protection and Biodiversity Conservation Act 1999.

Summary

Introduction

1. Australia has a diverse and unique environment. To balance protecting the environment with society’s economic and social needs, a legal framework has been created based on the guiding principles of ecological sustainable development. The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), administered by the Department of the Environment (Environment)1, is the Australian Government’s primary legislation to protect Australia’s environment and conserve its biodiversity.

2. The EPBC Act (Part 3) prohibits the undertaking of an action2 without approval from the Minister for the Environment (the Minister) or delegate, unless exempt, that is likely to have a significant impact on matters of national environmental significance (MNES).3 Proponents, such as landholders, developers and miners, are required to refer their proposed actions to the Minister (via the department) to determine whether approval of the action(s) is required under the EPBC Act.

3. In those circumstances where the Minister (or delegate) decides that an action requires approval (that is, the action is a ‘controlled action’), an environmental assessment of the action must be undertaken using one of a number of prescribed methods.4 The Minister (or delegate) will then decide (under Part 9 of the EPBC Act) whether to approve the controlled action, and the types of conditions, if any, to impose.5 Examples of the types of conditions that may be attached to approvals include:

  • preparing, submitting to the Minister for approval, and implementing, management plans;
  • conserving offset areas to compensate for any damage caused;
  • specifying required environmental monitoring and testing;
  • complying with specified industry standards or codes of practice; and
  • lodging a bond, guarantee or cash deposit.

4. The approval of controlled actions allows proponents to implement their actions, subject to the environmental safeguards put in place to protect MNES through approval conditions. Proponents are required to comply with the conditions attached to approved controlled actions.6 Compliance with approval conditions underpins the effective operation of Part 9 of the EPBC Act and the public’s confidence that approved actions will not detrimentally affect MNES.7

Approved controlled actions

5. The controlled actions approved since the EPBC Act came into effect in July 2000 collectively involve investments or expenditure of hundreds of billions of dollars over the life of the actions. As at September 2013, the 635 approved controlled actions under the EPBC Act had around 8000 conditions attached to them to protect 1282 MNES.8 In general, most actions have a small number of attached conditions, with around 90 per cent of all approved controlled actions having less than 20 conditions attached to them. Ten approved controlled actions have in excess of 70 conditions, including one action with 116 conditions. The timeframes for these actions can range from a few years to decades. While the number of approved controlled actions, and the conditions attached to the approvals has grown over time, only 32 actions had been ‘closed’ and were no longer subject to compliance monitoring by Environment.

Administrative arrangements

6. Compliance monitoring and investigation/enforcement activities associated with approved controlled actions are managed by the Compliance and Enforcement Branch (CEB) within the Environment Assessment and Compliance Division (EACD) of the department, with oversight provided by a number of internal forums.9 As at March 2014, CEB had three sections comprising approximately 24 staff with responsibility for monitoring compliance with the conditions attached to approved controlled actions. There were also two sections (approximately 21 staff) with responsibility for investigating allegations or incidents of non-compliance and initiating enforcement action for breaches of the EPBC Act (involving approved controlled actions, as well as other matters).

7. Compliance monitoring by departmental officers primarily involves desk-based reviews of actions as they progress (commonly by phone and email), and includes assessing/approving management plans/reports/ compliance returns that proponents submit as required by their controlled actions’ conditions of approval.10 Compliance monitoring staff also undertake inspections of sites of controlled actions and compliance audits (which can be desk-based or involve site visits) to assess proponents’ compliance with all relevant approval conditions. Any allegations of, or incidents relating to, non-compliance may be subject to investigation by Environment and may result in the department taking enforcement action against non-compliant proponents. These enforcement actions include variations to conditions and the issuing of infringement notices requiring the payment of a fine.

Previous reviews and audit coverage

8. Over recent years, there have been a number of reviews and audits of aspects of the operation of the EPBC Act by independent reviewers, Committees of the Parliament, the Australian National Audit Office (ANAO) and Environment’s internal auditors. Among these, an ANAO audit in 2006–07 (The Conservation and Protection of National Threatened Species and Ecological Communities) found that, at that time, Environment had a well-designed compliance and enforcement strategy, but did not have sufficient information to determine whether conditions on the approved controlled actions were generally met and there was little effective management of the information that had been submitted by proponents. In response to the findings of the 2006–07 audit, the department established the previously mentioned Compliance and Enforcement Branch in 2007 ‘to promote awareness of, and compliance with, the EPBC Act’.

One-stop-shop arrangements

9. In the lead-up to the 2013 Federal Election, the incoming Government announced its commitment to establishing a one-stop-shop (OSS) for environmental approvals covering both Commonwealth and state/territory legislation. Under proposed OSS arrangements, the assessment and approval of most projects against Commonwealth environmental requirements, which are currently undertaken by Environment, would be undertaken by the states/territories using existing processes once accredited. The states and territories would also be responsible for monitoring and enforcing proponents’ compliance with the conditions of approval related to the EPBC Act attached to actions that they approve.11 Subject to the successful negotiation of agreements within planned timeframes (September to December 2014), the department anticipates that the number of approved controlled actions monitored by Environment will peak during 2014–15 and gradually reduce over subsequent years as actions are completed.

Audit objective and criteria

10. The objective of the audit was to assess the effectiveness of the Department of the Environment’s regulation of proponents’ compliance with Part 9 of the Environment Protection and Biodiversity Conservation Act 1999.

11. To form a conclusion against the audit objective, the ANAO adopted the following high-level criteria:

  • a structured risk management framework to assess and manage compliance risks has been developed;
  • a risk-based compliance program to effectively communicate regulatory requirements and to monitor compliance with regulatory objectives has been implemented;
  • arrangements to manage non-compliance are effective; and
  • appropriate governance arrangements are in place to effectively support EPBC Act Part 9 regulation.

Overall conclusion

12. The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was introduced to protect Australia’s environment and conserve its biodiversity. The provisions of the EPBC Act related to the assessment and approval of projects (controlled actions) are designed to facilitate Australia’s economic and social development while mitigating significant impacts on matters of national environmental significance (MNES).

13. Since the enactment of the EPBC Act in 2000, the Australian Government has approved over 600 controlled actions under Part 9, many with conditions attached12 that are designed to ensure that MNES are not adversely impacted by the controlled actions. As at September 2013, there were almost 8000 conditions attached to approved controlled actions that were established to protect around 1300 MNES. Ongoing compliance with established conditions of approval over the life of controlled actions, which can extend over decades, underpins the protection of MNES while allowing economic development.

14. The Department of the Environment (Environment) is responsible for regulating controlled actions approved under Part 9 of the EPBC Act. Environment’s regulatory activities involve the monitoring of proponents’ compliance with conditions attached to approved controlled actions, including the assessment/approval of management plans, reports and compliance returns submitted by proponents, supplemented by monitoring inspections and compliance audits. Any allegations of, or incidents relating to, non‑compliance may be subject to investigation by the department and may result in enforcement action being taken, such as the issuing of infringement notices, against non-compliant proponents. However, nearly 14 years after the enactment of the EPBC Act, Environment is yet to establish mature administrative arrangements to effectively discharge its regulatory responsibilities in relation to approved controlled actions. As a consequence, the assurance that the department has regarding proponents’ compliance with action approval conditions, which are designed to address the risks posed to MNES, is limited.

15. In particular, Environment is not well placed to demonstrate that it is effectively targeting its compliance monitoring activities to the areas of greatest risk. The department is yet to: establish an effective compliance intelligence capability to collect, store and analyse compliance intelligence; and identify an appropriate set of MNES risk factors (such as the compliance history of proponents) against which approved controlled actions can be assessed and ranked. The absence of a sound risk-based approach has meant that compliance monitoring undertaken by the department has, generally, been insufficient to provide an appropriate level of assurance of proponents’ ongoing compliance with their conditions of approval. In terms of proponents’ obligations to submit material to the department, there were numerous plans and compliance returns found to be overdue for submission, with generally poor evidence retained demonstrating the department’s appropriate assessment of submitted plans and returns, particularly for assessments completed prior to 2013.13

16. The increasing workload on compliance monitoring staff over time has resulted in Environment adopting a generally passive approach to monitoring proponents’ compliance with most approval conditions. As a consequence, the department has limited awareness of the progress of many approved controlled actions and the elevated risks to MNES that may result during particular stages of an action (for example, during ground clearance and construction). Environment has recently established a compliance monitoring strategy that has been designed to coordinate its various compliance activities.

17. Environment’s passive approach has also been evident in its approach to the management of non-compliance. In many cases, instances of proponent non-compliance (mostly of a technical nature—such as, a missed deadline to submit a management plan14) were either not identified by staff, or were identified but not referred for assessment and possible enforcement action. The failure to appropriately respond to identified non-compliance can: impact on the effectiveness of environmental safeguards; risk environmental damage; jeopardise the department’s ability to take future enforcement action; and harm the public’s confidence in the regulator. Also, in the absence of appropriate procedures, the department’s investigations into reported non‑compliance with approval conditions were conducted inconsistently. Although documentation retained by Environment evidenced the enforcement decisions taken, there is scope to improve the department’s documentation of the reasons for decisions, including the consideration of relevant factors and the consistency of enforcement responses over time.

18. The extent of the shortcomings in, and challenges facing, Environment’s regulation of approved controlled actions—particularly in relation to compliance monitoring—does not instil confidence that the environmental protection measures considered necessary as part of the approval of controlled actions have received sufficient oversight over an extended period of time. In this regard, Environment is working to improve its internal performance reporting arrangements to provide greater visibility of the compliance monitoring function to senior departmental managers. While Environment dedicated additional resources in 2007 to monitor and enforce EPBC Act compliance, effective arrangements to administer its regulatory responsibilities are yet to be established.

19. Environment has acknowledged the shortcomings in its regulation of approved controlled actions and has initiated a broad program of work to address the shortcomings identified over recent years, including those identified from earlier reviews and this audit. The department informed the ANAO that it is, among other developments: establishing a Regulatory Capability Development Program; developing and updating standard operating procedures; and developing a risk-based prioritisation model to assist with the targeting of its compliance monitoring activities.15 Establishing mature administrative arrangements to effectively regulate approved controlled actions will, however, require a sustained effort from Environment to address identified shortcomings. To inform Environment’s program of work, the ANAO has made five recommendations to: develop a compliance intelligence capability and undertake periodic risk assessments; develop and implement annual compliance monitoring programs that target the greatest risk areas; update investigation procedures and improve the documentation of enforcement responses; and improve record-keeping and performance reporting related to the compliance monitoring function.

Key findings by chapter

Compliance intelligence and risk assessment (Chapter 2)

20. Compliance intelligence received and analysed on a timely basis should inform the periodic assessment of the risks posed by approved controlled actions to MNES. However, some 14 years after the EPBC Act came into force, Environment is yet to establish an effective compliance intelligence and risk assessment capability. The department collects, to varying extents, intelligence information primarily through its compliance activities (that includes, but is not limited to, allegations/incidents of non-compliance). Nevertheless, there is scope to improve the collection of intelligence through improved monitoring of approved controlled actions and from other environmental regulators. The department’s approach to storing most compliance intelligence on hard-copy files established for each approved controlled action makes the analysis and the sharing of information difficult. Further, as the department does not regularly or periodically analyse the intelligence it gathers, it is not well placed to assess the risks that controlled actions pose to MNES.

21. While the department has identified a small number of risk factors against which all approved controlled actions are to be assessed, it is yet to identify an appropriate set of relevant factors against which risks can be assessed and ranked. The risk assessments of approved controlled actions, required since late 2011 were not prepared for 40 per cent of actions examined by the ANAO and, where prepared, the assessments often contained errors and have not been updated over time. In addition, risk considerations are not sufficiently documented during the planning of monitoring inspections and compliance audits to demonstrate that inspections and audits are directed at those controlled actions that pose the greatest risk.

22. In the absence of an effective risk assessment process, Environment has taken steps to address the heightened risks to MNES posed by one category of approved controlled actions—coal seam gas projects—which comprised 2.2 per cent of all approved controlled actions as at September 2013. To manage these risks, the department has allocated additional staff and has developed tailored monitoring arrangements (including close departmental and external scrutiny) for these actions.16

23. In February 2014, Environment’s executive endorsed a compliance monitoring strategy for the period 2013–16 that outlines key deliverables17 over this period that are designed to assist the targeting of compliance activities and allocation of departmental resources to areas of greatest risk. The department is also working in collaboration with the Commonwealth Scientific and Industrial Research Organisation to develop a National Environmental Significance Threat and Risk Assessment (NESTRA) model that is designed to enable its managers to strategically target their regulatory effort from 2014–15 within existing and future resource constraints.

Managing compliance (Chapter 3)

24. Environment’s ability to manage proponents’ compliance with their controlled actions’ conditions of approval is dependent, to an extent, on the clarity of the approval conditions. Generic conditions included more commonly in controlled actions approved from 2010 onwards establish common requirements and provide a sound basis for the department to monitor proponents’ ongoing compliance.18 However, the limited use of generic conditions in many controlled actions (and in particular those approved prior to 2010) increases the onus on the department to actively monitor these actions. Ambiguities or the lack of precision in the expression of bespoke conditions can have, and at times have had, an adverse impact on the department’s ability to undertake enforcement action. There is scope for the department to more frequently exercise its powers under the EPBC Act to vary conditions of approval (by consent or in response to proponents’ non-compliance) to improve their enforceability.

25. In general, responsibility for the management of controlled actions is transferred from the area of the department responsible for the actions’ approval (the assessment branches) to the compliance monitoring area soon after the approval of controlled actions. While there are specific circumstances where approved controlled actions can be retained by the assessment branches to undertake initial compliance monitoring activities, around 20 per cent of all approved controlled actions—some approved as early as 2001—have been retained by the assessment branches for undocumented reasons. The approved controlled actions retained by the assessment branches examined by the ANAO were more likely to have plans overdue for submission and other missed deadlines, and less likely to have been actively monitored by the department.

26. Environment’s regulation of proponents’ compliance with those conditions requiring the submission, approval and/or publication of plans and compliance returns has generally been inadequate. The ANAO’s examination of 64 approved controlled actions (10 per cent of the population as at September 2013)19 found:

  • numerous overdue plans and returns—22 plans relating to 10 controlled actions (15.6 per cent) and 18 compliance returns relating to nine controlled actions (14.1 per cent) were overdue for submission by proponents (many of which had been overdue for more than 18 months, including eight plans that the department was not aware were overdue);
  • retention of evidence demonstrating the appropriate assessment of submitted plans and returns was generally poor—the department retained only partial or limited evidence of its assessment of 41 of the 67 approved plans (61.2 per cent).20 In addition, the department retained only limited evidence of its assessment of 36 of the 84 plans, reports and compliance returns (42.9 per cent) not requiring approval; and
  • a significant proportion of unpublished plans and returns—13 of the 51 plans, reports and compliance returns (25.5 per cent) requiring publication could not be located on proponents’ websites as at December 2013.21

27. Monitoring inspections and compliance audits are an important part of Environment’s compliance activities that can provide assurance regarding proponents’ ongoing compliance, as well as being used to detect non‑compliance. There is scope for the department to improve the planning, conduct and management of monitoring inspections to ensure that they achieve planned objectives. In relation to compliance audits, inconsistencies in planning, reporting and follow-up (such as some audit justification forms and evidence of the following-up of identified non-compliance not being retained) are inhibiting their effectiveness as a compliance tool. For both monitoring inspections and compliance audits, there would be merit in enhancing the sharing of lessons learned and intelligence gathered from these activities.

28. For most approved controlled actions, the department has not actively monitored proponents’ compliance with their approval conditions22, to effectively supplement the monitoring undertaken through the department’s assessment/approval of management plans and compliance returns. The ANAO found that the department had retained limited evidence of active monitoring for 44 controlled actions (68.8 per cent of the actions examined)—whose conditions are designed to protect 93 MNES under the EPBC Act.23 The department indicated that it is currently updating guidance for staff that will outline the processes and procedures necessary to actively monitor approved controlled actions.

Responding to non-compliance (Chapter 4)

29. Environment’s compliance framework includes key department-wide guidance material to support the delivery of a number of regulatory regimes. In general, this guidance material is not current and, as identified by a departmental internal audit, does not address numerous better practice regulatory considerations. Environment is, however, implementing strategies that are designed to address shortcomings in its compliance framework, as well as assessing regulatory resourcing needs, with an estimated completion date of August 2014.

30. While proponents of approved controlled actions are expected to report any potential non-compliance to Environment, they are only compelled to self‑report non‑compliance under Part 9 of the EPBC Act to the extent required by their actions’ conditions of approval.24 Compliance monitoring staff are well-positioned to identify non-compliance with approval conditions. However, many instances of proponent non-compliance evident from departmental records were either not identified by staff, or were identified but not referred for assessment and possible enforcement action. Although many unreported instances of non-compliance were of a technical nature—for example, a missed deadline to submit a management plan—they can nonetheless have an impact on the effectiveness of environmental safeguards. Of the 151 instances of non-compliance detected by the ANAO from an examination of approved controlled actions, information had not been retained to evidence that compliance monitoring staff had referred 88 instances (59.5 per cent) relating to 20 approved controlled actions (31.3 per cent of actions examined) to the section responsible for investigating non-compliance (Compliance Section) or that they had been centrally recorded.25

31. Reported non-compliance by proponents of approved controlled actions can result in the department undertaking an investigation. However, Environment has prepared limited procedures on the conduct of investigations where a criminal offence is not suspected26—resulting in the investigations examined by the ANAO being conducted using inconsistent practices. In contrast, there is sound guidance for staff and established practices to determine appropriate enforcement responses for identified serious and low‑level non-compliance, which had generally been followed for the investigations examined by the ANAO.

32. Where investigations determined that non-compliance had occurred, documentation retained by Environment outlined its enforcement decisions and, to the extent to which reasons were documented, the stated reasons were relevant to the circumstances of the investigated matters and in accordance with established guidance. There is further scope for staff undertaking investigations to improve the transparency of enforcement decision-making by strengthening the link between the stated reasons and established guidance, and incorporating comparisons to recent decisions for relevant past cases.

Governance arrangements (Chapter 5)

33. The number of approved controlled actions managed by the Approvals Monitoring sections has increased significantly since July 2008, but compliance monitoring resources have increased at a lower rate and work-related efficiency gains (in areas such as improved risk management, work practices and information management) have been limited. On the other hand, investigations into non-compliance incidents (across all parts of the EPBC Act) have generally been addressed in shorter time periods with fewer resources due to the Compliance Section’s efficiency improvements, including improved standardised work practices and the introduction of the Compliance and Enforcement Management System (CEMS).27

34. The expanded use of IT systems to assist regulatory staff to undertake their day-to-day work, however, have had mixed results. The introduction of CEMS has improved the management of non-compliance investigations and associated documentation. In contrast, the functionality limitations of the ‘Chapter 4 database’28 make it difficult for compliance monitoring staff to effectively and efficiently monitor compliance. An examination of IT controls within CEMS and the ‘Chapter 4 database’ also identified significant deficiencies (including in relation to system access) that increase the risks to the integrity and security of regulatory data. Further, Environment’s management of hard-copy records generally, does not effectively support its monitoring function.29

35. The performance information captured that is relevant to the compliance monitoring function has been limited, which has hindered the department’s governance of this function and adversely impacted on its ability to publicly report relevant performance information. The limited information that Environment has included in its annual reports in relation to its EPBC Act Part 9 compliance activities does not provide stakeholders with sufficient information on which to determine the extent to which these activities are appropriate or sufficient to protect MNES. While recent internal quarterly performance reviews have improved the coverage of the performance of the compliance monitoring function, there is potential to further improve the reporting of compliance monitoring activities and outputs to enhance accountability to Environment’s senior management and provide greater assurance regarding proponent compliance with approval conditions.

Summary of agency response

36. Environment’s summary response to the proposed report is provided below, while the full response is provided at Appendix 1.

The Department acknowledges that there have been shortcomings in past compliance monitoring of environmental conditions. The Department accepts the recommendations in the report and is well placed to implement them.

Since 2012, the Department has been implementing a comprehensive business improvement programme. Implementation is expected to be completed in July 2014. It has been informed by an internal audit of compliance and enforcement activities in 2013 and includes:

  • in 2012, implementing the Compliance and Enforcement Management System to track and coordinate investigations and intelligence gathering
  • in 2013, implementing a risk-based case-prioritisation model, based on the Australian Crime Commission practice, to focus investigations on highest-risk cases
  • in 2014, developing a risk-based prioritisation model, with the assistance of the Commonwealth Scientific and Industrial Research Organisation and based on the practice of the Australian Tax Office, to focus the Department’s monitoring activities on those approved projects posing the highest risk
  • in 2014, enhancing the Department’s assessments and approvals database to enable more accurate monitoring and reporting of approval decisions, and
  • in 2014, updating 63 standard operating procedures to ensure a systematic approach to the Department’s compliance and enforcement activities.

In addition to the business improvement programme, the Department has significantly increased its proactive management of regulation over the last two years, in contrast to the report’s finding that the Department takes a generally passive approach to regulation. Since 2012, the Department has undertaken 177 variations to conditions to assist proponents with voluntary compliance, has issued 19 infringement notices for breach of conditions, has directed 15 proponents to undertake independent audits of their actions, and has commenced varying conditions of approvals in response to breaches. In contrast, from 2008 to 2012, there were only 2 infringement notices and no directed audits.

ANAO comment

37. While the ANAO identified some areas of improved regulatory performance over the period examined by the audit, such as the level of documentation supporting the assessment of submitted plans and reports (refer to paragraphs 15 and 3.29), a significant increase in the ‘proactive management of regulation’, particularly in relation to monitoring proponent compliance, was not evident.

Recommendations

Recommendation No.1

Paragraph 2.31

To better assess and manage the risks to matters of national environmental significance posed by approved controlled actions, the ANAO recommends that the Department of the Environment develop and implement an annual program of compliance activities having regard to:

(a) a structured approach to collect, retain and regularly analyse, compliance intelligence; and

(b) the identification and regular review of relevant risk factors for approved controlled actions.

Environment’s response: Agreed

Recommendation No.2

Paragraph 3.25

To strengthen compliance monitoring of approved controlled actions, the ANAO recommends that the Department of the Environment:

(a) transfer approved controlled actions to the compliance monitoring area at the time of their approval, unless a specific need has been identified for the assessment branches’ retention of the actions; and

(b) establish, and monitor adherence to, appropriate protocols and procedures to help ensure that approved controlled actions retained by the assessment branches are transferred to the compliance monitoring area once the specific need has been addressed.

Environment’s response:Agreed

Recommendation No.3

Paragraph 3.65

To improve the management of risks to compliance and matters of national environmental significance, the ANAO recommends that the Department of the Environment:

(a) review standard operating procedures and reinforce the need for staff to document the assessment and/or approval of material submitted by proponents of approved controlled actions;

(b) better target monitoring activities towards those approved controlled actions that pose the greatest risks to matters of national environmental significance; and

(c) develop and resource a coordinated program of compliance monitoring activities, monitoring inspections and compliance audits.

Environment’s response:Agreed

Recommendation No.4

Paragraph 4.39

To improve processes for responding to instances of non-compliance, the ANAO recommends that the Department of the Environment:

(a) reinforce to staff the need for all instances of non-compliance by proponents of approved controlled actions to be recorded centrally; and

(b) improve the documentation of reasons for enforcement decisions, including the key factors considered when an appropriate response was determined.

Environment’s response:Agreed

Recommendation No.5

Paragraph 5.64

To improve the governance and oversight of the compliance monitoring function, the ANAO recommends that the Department of the Environment:

(a) implement improvements to IT systems and records management practices, to address identified gaps and enhance functionality;

(b) improve the frequency and coverage of management reports in relation to compliance monitoring activities, outputs and outcomes; and

(c) develop and report against appropriate performance measures that relate to the activities undertaken to monitor compliance with the EPBC Act.

Environment’s response:Agreed

Footnotes

[1] In September 2013, the Department of Sustainability, Environment, Water, Population and Communities (DSEWPaC) became the Department of the Environment as part of changed administrative arrangements.

[2] An action includes a project, development, undertaking or activity (or series of activities) (s523(1) of the EPBC Act).

[3] The categories of MNES are: world heritage areas; national heritage areas; wetlands of international significance; listed threatened species or endangered communities; listed migratory species; nuclear actions; Commonwealth marine environment, Great Barrier Reef Marine Park; water resources from coal seam gas developments and large mining developments; Commonwealth land; Commonwealth heritage sites; and actions by Commonwealth agency.

[4] The most common assessment methods are by preliminary documentation, state/territory process and environmental impact assessment or public environment report.

[5] The Australian Government intends to enter into agreements with the states/territories to assess and approve controlled actions under the EPBC Act.

[6] s142(1) of the EPBC Act.

[7] State/territory and local governments may impose their own approval conditions for an action in addition to those imposed by the Australian Government.

[8] Of the 635 controlled actions: 432 controlled actions had one to two protected matters; 175 controlled actions had three to four protected matters; and 28 controlled actions had five or more protected matters.

[9] The internal forums are the EACD Panel, the Regulatory Enforcement Committee, and the Compliance Management Panel.

[10] Documents reviewed by officers can range from simple reports numbering a few pages to lengthy and complex plans and reports containing hundreds of pages.

[11] The Australian Government would retain responsibility for monitoring and enforcing proponents’ compliance with conditions attached to controlled actions it has approved.

[12] Conditions may involve the establishment and implementation of plans of management and offset areas. Offset areas are areas set aside for preservation and/or rehabilitation to compensate for the potential damage to MNES in other areas.

[13] The ANAO examined 64 approved controlled actions—10 per cent of approved controlled actions as at September 2013—that were selected broadly in proportion with key parameters of the population.

[14] Management plans, assessed and approved by the department, establish controls for undertaking the actions that are designed to protect MNES. Delays in the implementation of management plans may elevate risks to MNES.

[15] During 2013–14, Environment worked in collaboration with the Commonwealth Scientific and Industrial Research Organisation to develop the National Environmental Significance Threat and Risk Assessment (NESTRA) model that the department expects to implement from 1 July 2014.

[16] The Expert Panel for Major Coal Seam Gas Projects, comprising three external members appointed by the Minister, is also responsible for providing expert hydrological and hydrogeological advice to the Minister and the department relating to major coal seam gas projects.

[17] The strategy’s key deliverables include a risk assessment tool, updates to standard operating procedures and guidance for proponents on preparing documentation for submission to the department.

[18] Examples of generic conditions include requirements for the proponent to: self-report on compliance with conditions at periodic intervals; revise an approved plan on request; and publish approved plans and compliance returns.

[19] The ANAO’s review of a sample of approved controlled actions focused on monitoring activity undertaken by Environment during the period from July 2010 to December 2013.

[20] Environment evidenced the assessment of 10 of the 11 plans/reports submitted in the period from July 2013 to January 2014—a significant improvement when compared to earlier years.

[21] However, as some plans/reports examined by the ANAO were required to be published as long ago as July 2010, plans may have been published on the website at the time, but have since been removed or website links degraded over time.

[22] Active monitoring, appropriate to the circumstances of each action, could take the form of: contacting proponents to inform them of an upcoming reporting requirement or milestone; seeking a status update from proponents for actions (such as commencement dates); or undertaking a monitoring inspection or compliance audit.

[23] The 93 protected matters are: world heritage (five controlled actions); national heritage (two); wetlands of international significance (10); listed threatened protected species or endangered communities (37); listed migratory species (23); Commonwealth marine environment (five); Commonwealth land (six); action by Commonwealth agency (two); and unspecified (three). Actions can relate to multiple protected matters.

[24] Only two-thirds of the actions examined by the ANAO required proponents to submit annual compliance returns and/or report non-compliance incidents as they occur.

[25] These 20 controlled actions related to the following 46 protected matters: world heritage (three controlled actions); national heritage (two); wetlands of international significance (four); listed threatened protected species or endangered communities (20); listed migratory species (nine); Commonwealth marine environment (two); Commonwealth land (three); action by Commonwealth agency (one); and unspecified (two). Actions can relate to multiple protected matters.

[26] The department’s Investigation Procedures Manual is directed primarily to investigations of a criminal nature, which does not apply to most non-compliance incidents related to approved controlled actions.

[27] CEMS is a repository of reported non-compliance allegations and incidents, and a workflow management system for investigations and enforcement action.

[28] The ‘Chapter 4 database’ records monitoring requirements and events to assist departmental staff to monitor proponents’ compliance with their actions’ conditions of approval.

[29] Environment informed the ANAO that an electronic document records management system will be introduced within the Compliance and Enforcement Branch by 30 June 2014. The department considers that this system will address many of the current records management shortcomings.