Friends of Grasslands

supporting native grassy ecosystems

PO Box 440
Jamison Centre
Macquarie ACT 2614


Australian National Audit Office
GPO Box 707
Canberra ACT 2601


Dear Sir/Madam

Referrals, assessments and approvals of controlled actions under the Environment Protection and Biodiversity Conservation Act 1999

Friends of Grasslands (FOG) is a community group dedicated to the conservation of natural temperate grassy ecosystems in south-eastern Australia. FOG advocates, educates and advises on matters to do with the conservation of grassy ecosystems, and carries out surveys and other on-ground work. FOG is based in Canberra and its members include professional scientists, landowners, land managers and interested members of the public.

FOG has been providing comment on EPBC referrals relating to grassland ecosystems and species for many years, and in the past ten years have submitted comments on over 60 EPBC referrals on these matters. Our views in response to the questions asked about the audit of the EPBC referral process follow.

Question 1: Are governance arrangements sound?

We have concerns about the process when the Commonwealth government is both assessor and beneficiary. We draw your attention to referral 2017/8028 (Blocks 3 and 15, Section 22, Barton, ACT Divestment). The site in question is known as York Park, an iconic site for the critically endangered Golden Sun Moth, with signage reflecting its conservation status. However, complete destruction of the site has recently been approved. While understanding that the ANAO does not have a role in commenting on the merits of government policy, this example of clearly commercial considerations overriding environmental considerations in a situation where the Commonwealth Government was the beneficiary of the approval in our view raises questions about the approval process in such situations.

One issue we have with the process is that formulation and decisions about appropriate offsets has, in the past, occurred behind closed doors with no opportunity for an interested community group like ours to consider and make suggestions or raise objections. There have certainly been some recent referrals (such as 2017/8028 mentioned above) where an offsets analysis has been provided for comment as part of the referral process, but this is not always the case. Our view is that offsets should be “advanced offsets”, i.e. that the offsets should be in place before any construction commences. If this is the case, then details of offset proposals should be part of every referral impacting on MNES and available for public scrutiny.

Question 2: Are referrals and assessments efficient and effective?

The public comment period from when a referral goes up onto the EPBC website is 14 days. In reality, since we are a group comprising volunteers and do not check the website daily, the comment period is always somewhat shorter. This poses difficulties for a group such as ours to make reasonable and substantive comments on some referrals, in particular those where there is considerable documentation attached to the referral. An example is referral 2017/8028 mentioned above, where there were seven documents attached to the referral. Understanding the impact assessment and offset analysis reports took several days and was necessary before we were able to formulate our views and provide a considered comment about our objections to the referral.

A significant difficulty with the current process is that it is “death by a thousand cuts” for the Matters of National Environmental Significance (MNES) being impacted. As an example, initially referrals for urban development in the Gungahlin area of the ACT were done part-suburb by part-suburb (e.g. referrals 2008/4175, 2010/5456, 2010/5648, 2011/6113, 2011/6126, 2012/6251, 2012/6279, 2012/6350 for Crace stage 2, Throsby sporting complex, Ngunnawal 2C, Moncrieff, Bonner 4 East extension, Throsby school, Kenny and Throsby; Jacka (North), Taylor and Kinlyside respectively). Done in such small pieces this way, the argument for each part of the development was that it would have no significant impact on MNES. However, the cumulative impact of these was larger and should have been evaluated as a whole. Eventually the remainder of the Gungahlin urban development was addressed through the Gungahlin Strategic Assessment (see While this was a substantial amount of work to be undertaken by both the proponent to prepare and by community groups such as ours to review and comment on, the end result was much better – overall less work than numerous small referrals would have been, and a much better result environmentally as it allowed consideration of connectivity and relative importance of different areas.

However, this approach is only being used in a limited number of cases. Recently there have been multiple referrals impacting on the Golden Sun Moth (GSM) within the central Canberra area (2017/8028, 2019/8449 (City Hill redevelopment), 2019/8490, 2019/8491 (Light rail – City to Woden)) – but we are back to considering each in isolation rather than the area as a whole and connectivity between the GSM populations. Strategic assessments, or at least consideration of the entire MNES within an area, should be undertaken rather than just consideration of impacts on MNES in the current’s project footprint, particularly where other referrals in the same area are likely in the future.

Question 3: Are conditions of approval appropriate and assessed with rigour?

Compliance with approval conditions, in particular offset conditions, is of major concern to us. Few of the referrals we have input to have been audited, and those that have been done have been, in the main, desktop reviews of delivery of reports and so on.

To support our view, we draw your attention to those audits that have occurred in relation to grassland referrals of interest to FOG. The first is the only compliance audit undertaken by the department on referrals concerning grassland MNES since 2016 is that done for EPBC 2008/4621 (ActewAGL 132kV Sub-Transmission Line, Williamsdale to Theodore, ACT) in September 2011. Two non-compliances were found in relation to the Biodiversity Offset Strategy. While these were later addressed to the satisfaction of the department, they should not have occurred at all and suggest that many other similar conditions of approval are not being met.

The second is the ACT’s Commissioner for Sustainability and the Environment’s (CSE) audit of the Molonglo Valley Strategic Assessment endorsed by the federal environment minister (see This audit resulted in 16 conditions being compliant, 28 compliant with observation, 11 non-compliant and 4 undetermined. As well, six broad systemic risks to successful implementation of the project were identified, and also four commitment-specific risks –four Corrective Action Requests were issued to fill these gaps, which have since been addressed. The non–compliances were largely due to timing issues for the delivery of commitments. However, the delay in delivery erodes the public’s confidence that conditions will actually be met. It also delays the delivery of mitigation and offset activities, which decreases the possibility that these will be completely effective and lead to the “no net loss” of biodiversity that they are meant to achieve. Similar findings came from the CSE’s audit of the Gungahlin Strategic Assessment.

Offsets are often part of the conditions of approval for referrals impacting on MNES. However, there is no evidence to date that we are aware of that shows that any offset for a grassy ecosystem or species has actually resulted in no net loss of the MNES post construction. We are certainly aware of some referrals where there has been improvement in the condition of the offset site, but whether this is sufficient to balance the initial loss that occurred is not clear.

Other comments

We understand that the ANAO does not have a role in commenting on the merits of government policy but focuses on assessing the efficient and effective implementation of government programs. One aspect impacting on the department’s ability to effectively monitor the EPBC program and ensure that the required outcomes are delivered is lack of funding to check that conditions of approval are complied with and the actions in these conditions do in fact deliver the desired outcomes. If general government funding is insufficient to ensure this, then conditions of approval should include sufficient funding so that monitoring occurs, compliance is enforced, and the end result is no net loss of biodiversity – the aim of the offsets component of the process.

Another issue is the question of compliance when land containing an endangered ecological community or species is cleared without a referral to the department. The terms of reference for the audit do not ask the question of what happens when the Act is ignored. However, the process ceases to be effective if non-compliance occurs even occasionally. How well non-compliance is addressed is part of the process and should be considered as part of the audit.

Yours sincerely


Geoff Robertson

9 November 2019