Context

1.1
Environmental context for this report

Intensifying climate and biodiversity emergencies

The 2019 ACT State of the Environment Report spotlighted the dual emergencies of climate change and biodiversity loss.

The latest 2022 Intergovernmental Panel on Climate Change assessment report demonstrates that insufficient global action limiting greenhouse gas emissions means the Earth is heading towards potentially catastrophic warming levels of over 2°C. The ACT recognised the urgency of climate change by declaring a climate emergency back in May 2019. Climate change is already having a significant impact on the ACT. Observed changes include reduced inflows to water storages, increased tree mortality, greater fire danger, and more algal blooms in Canberra’s lakes. Climate projections show the Territory should be planning for a worsening climate with hotter temperatures and decreased rainfall in spring.

In 2021, the Australian State of the Environment Report also presented a picture of environmental deterioration that was evident through our national biodiversity loss crises. It found the number of listed threatened species had risen 8% since 2016 and more extinctions are expected in the next decades. At least 19 Australian ecosystems are now showing signs of collapse or near collapse. In 2020, an independent review of the Environment Protection and Biodiversity Act 1999 (EPBC Act) (‘the Samuel Review’) found that environmental laws were outdated and required fundamental reform.

Healthy biodiversity is essential to the natural world and fundamental to human life. The complex and dynamic interactions between plants, animals, microorganisms, soil, water and air underpin the health of the ecosystems. Whilst biodiversity is dependent on good ecosystem health, biodiversity itself plays a pivotal role in maintaining ecosystems. Healthy ecosystems, biodiversity and land provide a range of benefits to human wellbeing, including climate regulation, clean air and water, nutrient cycling, pollination, control of pests, carbon sequestration, and the supply of foods and fibres.

These pressures remain significant considerations in this reporting period1 July 2019 to 30 June 2023, with a data cut-off date of 30 June 2023.. Since 2019 — when the last ACT State of the Environment Report was published — Canberra and the ACT have experienced further exceptional environmental challenges.

Unprecedented 2019-20 summer and bushfires

The 2019–20 fire season was one of the worst on record and the 2019–20 summer was one of extreme temperatures. On 4 January 2020, the ACT had its hottest day on record at 44°C. The mean maximum and minimum temperatures over the summer were the third warmest on record. These temperatures, combined with below average rainfall, provided the optimum conditions for the large and severe bushfires that occurred.

During the summer, nearly 90,000 hectares were burnt in the ACT; this is just under 40% of the ACT’s total area. The most significant bushfire was the Orroral Valley fire which started on 27 January and burnt 82,700 hectares of the Namadgi National Park and 1444 hectares of the Tidbinbilla Nature Reserve. Another 3350 hectares of rural lands were also burnt. Namadgi National Park was severely impacted by the fire with 80% burnt. The park is an important ecological reserve containing critical ecosystems, such as threatened alpine bogs and wetlands, and providing habitats for many endangered plant and animal species. The park also holds significant Indigenous and European cultural heritage and is the source for the majority of Canberra’s water supply. Much of the park has now burnt twice in 20 years; this will have significant consequences for many of the plant and animal species.

During that 2019–20 summer, bushfire smoke from both the ACT and NSW fires severely impacted Canberra’s air quality. Over the 91 days of summer, air pollution monitored at the Monash Station in Tuggeranong exceeded the national standards for health on 56 days — 42 of these days were above the hazardous rating. At times, the air quality in Canberra measured at Monash Station was the worst reported for any major city in the world and the worst in Canberra since air quality monitoring of PM_2.5 started 15 years ago. It has been estimated that 31 excess deaths and 318 hospitalisations were attributable to the bushfire smoke in the ACT during the 2019-20 summer.

The enduring environmental significance of these climate events warrants a dedicated chapter on the 2019–20 Bushfires.

2020-23 weather events

In the years since the 2019–20 bushfires abated, south–eastern Australia has experienced wet and warm weather. The Bureau of Meteorology (BoM) annual climate statements for these years report rainfall far above average for south–eastern mainland Australia, and that persistent rainfall led to significant flooding events affecting large areas for several periods in 2021 and 2022. In 2021, rainfall totals in the ACT were around 50% above average and flooding occurred on the Murrumbidgee and lower Molonglo rivers numerous times.

Wet conditions were the result of multiple, complex climate drivers. Foremost, three consecutive La Nina events occurred in the reporting period. This is one aspect of a natural climate cycle in the tropical Indian Ocean. The cooler than average sea surface temperatures in the central and eastern tropical Pacific that define La Nina episodes are associated with more extreme rainfall in eastern Australia. The wet years of 2020-23 were also characterised by specific conditions in the Southern Ocean (the Southern Annular Mode, SAM) and the Indian Ocean (Indian Ocean Dipole) that contributed to altered weather systems in favour of heavy rainfall.

The impacts of these wet years on Canberra’s environment are considered within this report.

COVID-19 impacts

The emergence and spread of COVID-19 also occurred within the reporting period and the pandemic provides a significant background for broader activity within the Territory.  In the 2020–21 Annual Report of the Office of Commissioner for Sustainability and the Environment, it was noted that “The COVID-19 pandemic continues to have an unprecedented impact in Canberra, Australia and the world, affecting employment, education, transport and travel. This disruption has critical environmental and sustainability impacts”. This statement is equally valid in 2023.

This Report includes discussion of the impact of the COVID-19 emergency on environmental and sustainability matters.

For more, see Returning to Our Roots and Reflections on Nature.

Investigations of issues of environmental significance

Within the reporting period, several issues of environmental significance were identified by the Commissioner for Sustainability and the Environment through investigations undertaken as directed by the Minister for the Environment and on the Commissioner’s own initiative.

Scope 3 Greenhouse Gas Emissions in the ACT
The purpose of this Investigation was to estimate the ACT’s scope 3 emissions and to develop potential reduction targets that account for all embodied greenhouse gas emissions. The report presented 12 recommendations to the ACT Government around the ACT’s ongoing leadership on climate action. These related to ACT Government operations; planning, construction and infrastructure; and households.

State of the Lakes and Waterways in the ACT
This Investigation assessed the condition of Canberra’s urban lakes and waterways against environmental and management objectives, and community expectations. Several critical issues with management of the urban lakes and waterways were highlighted. The Investigation set out 12 recommendations to the ACT Government relating to urban water quality management in the ACT. The Investigation highlighted the existence of numerous preceding reports and recommendations to the ACT Government on water quality issues and implores the government to revisit outstanding and repeated recommendations.

An Investigation into wood heater policy in the ACT
This report investigated the policy framework which determines the regulation and management of wood heaters in the ACT. It set out eight recommendations to assist the ACT Government in further improving air quality in the ACT.

In addition to the investigations undertaken under section 12(1) (b) and (c) of the Commissioner for Sustainability and the Environment Act 1993, OCSE published further reports on environmental issues as Background Reports, pertaining to the Commissioner’s functions under Section 12 and Section 19 (2) of the Act. These are non-statutory documents that raise awareness of issues with community and stakeholders and inform the Commissioner.

ACT Environmental Volunteers
In February 2022, OCSE published a web-based report on environmental volunteering in the ACT. The report identified 15 opportunities across six different areas for the ACT Government to consider in its approach to supporting community volunteers. These relate to use of volunteer knowledge and data, communication, recognition and transparency, and resourcing.

Environment for Kids and Environment for Youth
In 2022, OCSE published two web-based reports based on the 2019 State of the Environment Report. The Environment for Kids is a website for primary school aged students and includes content on four key themes — climate change, urban trees, biodiversity and the ACT’s waterways. The Environment for Youth website is aimed at high school students. The website presents more comprehensive information across 10 themes with accompanying activities.

1.2
Governance context for this report

Against the backdrop of these emergencies, the 2019 State of the Environment Report noted that the region’s population has been growing and the city’s footprint has expanded. The requisite management of the urban-natural environment interface remains a particularly notable challenge throughout the current reporting period.

Environmental policy in the ACT

In this State of the Environment Report, the management arrangements for the ACT’s environment are explored in more detail than previous reports. Key environmental policy instruments in the ACT are considered for each assessed theme. The effectiveness of various policies is explored and gaps across themes identified are identified. In part this work is based on an independent third-party review of ACT legislation and policy relating to sustainability and environmental management.

The ACT has shown leadership in a number of areas of environmental policy development. These include being the first jurisdiction in Australia to:

• achieve 100% renewable electricity supply
• legislate a target for net zero carbon emissions by 2045
• set a target to achieve no waste going to landfill
• develop regulations to prevent new gas network connections, and
• set a target date to phase out domestic wood fire heaters.

These accomplishments are commendable, but it is important that the ACT Government does not rest on its past successes. Despite the ACT Government’s commitment to sustainability, the review found that evidence to support progress toward environmental objectives is limited and there are areas where declines in outcomes continue. For example, in 2022 the ACT ranked only fourth out of Australian states and territories in its efforts to phase out single use plastics. Since the 2019 State of the Environment Report six new species have been added to the ACT Threatened Native Species List. It is therefore important that the ACT Government continues applying strong policy interventions to protect its environment and help Canberrans to live more sustainably, while ensuring that these policies are properly implemented.

The legislative context for sustainability and the environment in the ACT is complex, with at least 30 Acts on the ACT Government legislation register that have some relevance to sustainability. In 2023, this corresponds to 12 ministerial portfolios distributed across eight Members of the Legislative Assembly. The distribution of ministerial duties is determined by the government of the day and changes over time. This complexity makes it difficult to assess the efficacy of individual pieces of legislation and the interrelationships between different policy areas.

Environment and sustainability policy is explored in more depth in Chapter 7: What is Government Doing? and in the ‘Management’ sections at the end of each Theme.

Environmental governance in the ACT

In addition to a robust policy framework, the way in which environmental laws and policies are administered by the ACT Government and statutory office holders — known as the executive branch of government — is critical to achieving substantive environmental outcomes. It is essential that there are best practice environmental governance arrangements in place to ensure that fundamental democratic and accountability principles are upheld in relation to environmental management. The most robust environmental governance arrangements involve multiple layers of accountability and oversight for environmental decision-making, to safeguard the proper execution of environmental laws.

In preparing this State of the Environment report, an independent third-party review of the structural environmental governance in the ACT was conducted at the request of the Commissioner for Sustainability and the Environment. This review solely assessed the efficacy of the current administrative and legal arrangements of environmental entities in the ACT (see below), and whether those arrangements provide genuine apolitical safeguards for the environment. Its findings are discussed briefly in this section.

The independent review was solely based upon a desk-top review of the relevant legislative and regulatory schemes that constitute and govern the ACT’s environmental statutory office holders and assessed the governance of those entities solely against foundational administrative law principles, namely whether the administrative arrangements of each office holder are independent of the executive branch of government and whether the office holders are structurally accountable to the ACT Legislative Assembly. The evaluation and recommendations set out in the review were directed at the legal frameworks that govern these environmental statutory office holders and should not be interpreted as a critique of any individuals who hold, or have held, those positions or their actions.

There has been no consideration or evaluation as to the extent that the entities assessed are contributing to substantive environmental outcomes across the Territory. The enforcement and prosecution of environmental laws by the Environment Protection Authority (EPA) has also not been considered, and all issues relating to environmental crime were beyond the scope of the review.

Environmental governance entities assessed

 The ACT has three primary environmental statutory office holders: the Commissioner for Sustainability and the Environment, the Conservator of Flora and Fauna, and the Environment Protection Authority (EPA). Environmental statutory position holders are appointed and imbued with legislatively enshrined powers to oversee, monitor, report on and enforce environmental laws in the Territory.

The Commissioner for Sustainability and the Environment is an independent statutory position established by the Commissioner for Sustainability and the Environment Act 1993 (ACT), with the purpose of independently monitoring and reporting on matters relating to the environment and progress towards ecologically sustainable development in the ACT. The Commissioner possesses both reporting and investigatory functions under the Commissioner for Sustainability and the Environment Act 1993, including the preparation of the four yearly State of the Environment Report. In relation to its investigatory functions, the Commissioner operates as an environmental ombudsman overseeing other ACT Government agencies.

The Executive Group Manager of Environment, Heritage and Water in the Environment, Planning and Sustainable Development Directorate (EPSDD) also holds the statutory position of the Conservator of Flora and Fauna, pursuant to the Nature Conservation Act 2014 (ACT). The Conservator has responsibilities for protecting and conserving threatened species and ecological systems, including the administration of the licencing system for native flora and fauna and managing the nature reserve system. The Conservator also has specified roles in relation to the Planning and Development Act 2007 (ACT), the Fisheries Act 2000 (ACT) and the Tree Protection Act 2005 (ACT).

While the Conservator is a public servant, the statutory position of the Conservator serves a critical integrity and oversight function for the administration of ACT environmental laws. The Nature Conservation Act 2014 sets out that a ‘core function’ of the Conservator is to ‘develop and oversee policies, programs and plans for the effective management of nature conservation in the ACT’ and to ‘monitor the state of nature conservation in the ACT’ (s 21(1)). The oversight function of the Conservator was similarly emphasised in a 2010 independent review of the role. The Conservator can be conceived of as an environmental commissioner, tasked with advocating for conservation matters in government decision-making and monitoring the implementation of environmental policies.

Finally, the EPA is an independent statutory position holder created under Environment Protection Act 1997 (ACT), with the purpose of protecting and enhancing the quality of the ACT environment. It is responsible for the administration and enforcement of the Environment Protection Act 1997, including management of environmental and pollution licences, as well as enforcement powers under other environmental legislation. The EPA is assisted by the Office of the EPA. Both the EPA and Office of the EPA sit within Access Canberra, as a sub-unit tasked with environmental quality, environment protection and water regulation.

These three statutory officer holders serve different functions within the ACT Government, contributing to the oversight of EPSDD and other agencies, as well as the provision of expert advice. It is noted that the EPA has a unique enforcement function with respect to ACT environmental law, as the EPA is empowered to enforce environmental laws against ACT Government entities, and to the extent that the EPA serves as an avenue for the public to make complaints and seek remedial action for environmental harms occasioned by the ACT Government.

Independence of entities

In the ACT and other common law jurisdictions, such statutory position holders generally possess a special relationship of accountability to Parliament and such designation implies independence of the executive. For statutory position holders to ensure enduring government integrity in environmental management and to be positioned robustly, under their legislation, to give frank and free expert advice, the Commissioner for Sustainability and the Environment, Conservator of Flora and Fauna and EPA should be independent of the ACT Government and accountable to the ACT Legislative Assembly.

Independence is the first criteria of evaluation in this review, referring to the extent that the appointment process and functions of each of the ACT’s environmental statutory position holders are independent from the executive branch of government, which includes EPSDD and other ACT Government agencies. Independence ensures that statutory position holders achieve, and are perceived to achieve, impartial and legitimate decision-making in the public interest, limiting the risk of conflicts of interest or bias.

The review assessed the legislative and administrative arrangements of the statutory position holders against metrics for independence. Indicators of sufficient administrative and legal independence include legislated processes for the appointment, tenure and removal of position holders, the extent that the arrangements for budgeting and staff are within the control of the position holder, whether the entity has discretion in the exercise of its functions and oversight mechanisms monitor the functions of the position holder.

The appointment and funding of the ACT’s environmental statutory position holders are concentrated within EPSDD, the directorate which is responsible for much of the Territory’s environmental management. This has the potential to undermine the administrative independence of those position holders and their capacity to oversee environmental management by the ACT Government. Reforms are necessary to ensure that the Commissioner for Sustainability and the Environment, Conservator of Flora and Fauna and EPA are sufficiently independent to safeguard their objectivity and impartiality.

The following table summarises the findings of the review of whether the legislated and administrative independence of the Commissioner for Sustainability and the Environment, Conservator of Flora and Fauna and EPA is sufficient.

Table 1. Statutory position holder arrangements

Statutory office holder	Review findings
Commissioner for Sustainability and the Environment	The Commissioner for Sustainability and the Environment is appointed by the Minister for the Environment for a fixed term (s 4 of the Commissioner for Sustainability and the Environment Act 1993 [the Act]), and suspension or removal of the Commissioner requires ACT Legislative Assembly oversight (s 9 of the Act). While the Minister may direct the Commissioner to investigate a matter (s 12(1)(b) of the Act), the Commissioner retains a level of independence in undertaking its reporting and investigatory functions. The Commissioner heads an office which sits outside the structure of EPSDD.  Nonetheless, the independence of this role is undermined by the current framework for budgeting and staff arrangements. There are legislated constraints upon the Commissioner for Sustainability and the Environment’s discretion in the exercise of its investigatory functions. In relation to budgeting and staffing arrangements, staff of the Commissioner, who perform delegated investigatory and reporting functions, are employees of EPSDD, a government agency that falls within the jurisdiction of the Commissioner’s investigatory powers (s 12 and 13 of the Act). Similarly, budgets and funding arrangements are managed by EPSDD on behalf of the Commissioner. EPSDD reports on the funding of the Commissioner in its annual report. This is in contrast to other ACT integrity entities, including the ACT Integrity Commission which directly and independently hires its staff (s 41 and 48 of the Integrity Commission Act 2018 (ACT)).
Conservator of Flora and Fauna	The Conservator of Flora and Fauna is a public servant that sits within EPSDD, and also hold the position of Executive Group Manager of Environment, Heritage and Water. Consequently, the occupant of this position carries out their functions within the management structure of EPSDD. The Conservator of Flora and Fauna is appointed by the Director-General of EPSDD (s 20 of the Nature Conservation Act 2014). The Director-General of EPSDD also exercises the role of Chief Planning Executive, which resides within the planning and development portfolio and reports to the Minister for Planning and Land Management, rather than to the Minister for the Environment. The Conservator of Flora and Fauna’s staffing and budget are set by EPSDD and are not separately identified in the ACT budget.
Environment Protection Authority	The EPA is appointed by the Director-General of EPSDD (s 11 of the Environment Protection Act 1997). That function has been delegated to the Head of Access Canberra (such a delegation can be revoked without full ACT Legislative Assembly oversight, pursuant to s 237 of the Legislation Act 2001 (ACT)). Access Canberra and the EPA both produce Annual Reports and attend Legislative Assembly Hearings as required, and in practice, the performance of their environmental management functions are scrutinised by the Minister for the Environment and Legislative Assembly. Nonetheless, the appointment process of the EPA is not independent of the executive branch of government. The legislative arrangements of the EPA also do not robustly position it to function independently. The Environment Protection Act 1997 confers broad powers upon the Environment Minister to direct the EPA in carrying out its functions (s 93 of the Environment Protection Act 1997). This is in contrast to other Australian jurisdictions, for example the Northern Territory EPA’s ‘independence’ from Ministerial ‘direction or control’ is explicitly protected under s 9 of the Northern Territory Environment Protection Authority Act 2012 (NT). In a 2022 review of EPAs across Australia, the Environmental Defenders Office recommended that: An EPA should be formally established as an independent statutory authority, free from Ministerial influence. This includes implementation of a Board to provide strategic direction and oversight, made up of independent expert specialists in environmental regulation and science with strict legislated restrictions around conflicts of interest that are enforceable.

Accountability of entities

The extent to which the ACT’s environmental statutory position holders are accountable to the Legislative Assembly is the second criteria for determining whether the regulatory schemes that constitute them are aligned with best practice environmental governance. The OECD outlines that:

• Entities should be either ‘directly’ accountable to the legislature, or accountable ‘through [the relevant] minister’ that has responsibilities for the portfolio the regulator falls within. With regard to this report, the relevant minister is the Minister for the Environment, albeit noting that the Minister for the Environment has portfolio responsibility for policy relating to the Environment Protection Act 1997. The Minister for Business and Better Regulation has operational responsibility for Access Canberra.
• The powers and appointment process of statutory position holders should be set out explicitly and comprehensively in statute, allowing for legislative oversight and review.
• Statutory positions holders should be designed with ‘integrity of purpose’ to ensure that the role is not bound or impacted by competing regulatory objectives. This is also known as appropriate role separation. Adequate role separation ensures that statutory position holders are accountable to the minister that has oversight over the same portfolio that the statutory position holder falls within.

The legislative and administrative arrangements of the ACT’s environmental statutory position holders do not establish those roles with sufficient or appropriate accountability arrangements. Only the appointment and functions of the Commissioner for Sustainability and the Environment are directly accountable to the ACT Legislative Assembly under their constituting legislation. In contrast, neither the legislation governing the Conservator of Flora and Fauna, nor the EPA meet best practice accountability standards in respect of the appointment process of those entities. It is, however, noted that both the Conservator of Flora and Fauna and the EPA are already accountable to the Legislative Assembly in that they report publicly, and to the Legislative Assembly through Annexed reports to their respective directorate’s annual reports.

Both the Conservator of Flora and Fauna and the EPA are constituted by their respective statutes, although their functions are set out across a range of regulations. In addition, the appointment and tenure of the Conservator and EPA are not directly overseen by the ACT Legislative Assembly.

It is a concern that the Conservator of Flora and Fauna and the EPA, despite administering environmental statutes within the portfolio of the Minister for the Environment, are not appointed by that Minister. The administrative arrangements for the appointment of these statutory position holders means that the Minister for the Environment is not completely accountable to the ACT Legislative Assembly for the appointment of the Conservator of Flora and Fauna and the EPA. This is despite the central role those entities play in the administration of the Nature Conservation Act 2014 and the Environment Protection Act 1997. However, it is emphasised that best practice independence for the EPA would be better achieved if the EPA was constituted by an independent board rather than a sole regulator appointment by a Minister or otherwise.

In summary, the independent governance review found that the roles of Commissioner for Sustainability and the Environment, the Conservator of Flora and Fauna and the EPA require reforms to meet best practice standards for environmental governance. Better adherence to established administrative law principles of independence and accountability to Parliament would ensure that the administration arrangements of these entities are empowered to hold the ACT Government accountable and always positioned to provide government decision-makers with frank and free expert advice.

1.3
About this report

The 2023 ACT State of the Environment Report responds to the statutory requirement to provide the ACT community and Government with commentary and analysis about the environment in the territory. The reporting period for this report is from 1 July 2019 to 30 June 2023, with a data cut-off date of 30 June 2023. This report is published every four years and provides a valuable dataset where trends and changes in our natural environment can be identified.

This report describes the status and trends in the ACT’s environment and implications for environmental and human health. Formal recommendations are made, key actions are provided to assist with ongoing management, and data gaps and policy challenges are outlined.

Contents of this report

This Report is presented in two formats. In addition to this website, there is a printed summary document, tabled in the Legislative Assembly. This includes concise summaries of major issues of environment significance for the ACT. Condition and trends in environmental management follow these issues chapters. Data has been collected and analysed for trends on climate change, human settlements (energy, water, waste and transport), air, land, biodiversity, water and fire.

Both formats of the report have two parts:

1. The issues chapters explore key environment and sustainability issues in detail. The Report commences with a standing chapter on Ngunnawal Country, in recognition of the Ngunnawal people’s connection to Country in the Canberra region and their depth of knowledge and commitment to caring for Country. A discussion on community leadership provides a second standing issues chapter, building on information reported in 2019. Further topics discussed are bushfires in the ACT, Canberra’s urban boundary and Canberra’s circular economy.
2. A range of environmental themes are then explored using the drivers, pressures, state, impact, response (DPSIR) framework. Assessments are made for 26 indicators across seven themes selected to address specific environmental issues. These indicators provide evidence on both the status of issues and the effectiveness of environmental management policies and activities. For each indicator, a graded assessment is provided using a dashboard display containing snapshots of key information including condition, trend and data quality. The dashboards should be read in conjunction with the indicator content provided in each section.