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Schedule 1—National environmental standards

Schedule 1 National environmental standards

Part 1 Main amendments

Environment Protection and Biodiversity Conservation Act 1999

1  After paragraph 46(3)(a)

Insert:

                    (aa)  if there are one or more national environmental standards—the management arrangement or authorisation process is not inconsistent with those standards; and

2  Subsection 47(2)

Repeal the subsection, substitute:

Prerequisite to declaration

             (2)  The Minister may enter into a bilateral agreement declaring that actions assessed in a specified manner need not be assessed under Part 8 only if the Minister is satisfied that:

                     (a)  assessment of an action in the specified manner will include assessment of the impacts the action has or will have, or is likely to have, on each matter protected by a provision of Part 3; and

                     (b)  if there are one or more national environmental standards—assessment of an action in the specified manner will not be inconsistent with those standards.

3  After subsection 48A(3)

Insert:

National environmental standards

          (3A)  A bilateral agreement with a State or self-governing Territory including a declaration that is described in section 46 does not have effect for the purposes of this Act unless the agreement includes a provision that, if there are one or more national environmental standards, the following decisions will not be inconsistent with those standards:

                     (a)  decisions approving the taking of actions in accordance with the bilaterally accredited management arrangement concerned;

                     (b)  decisions approving the taking of actions in accordance with the bilaterally accredited authorisation process concerned.

4  At the end of subsection 58(1)

Add:

               ; or (c)  if the agreement includes a declaration described in section 46—has given effect, or will give effect, to the agreement in a way that is inconsistent with a national environmental standard.

5  After subsection 59(1)

Insert:

          (1A)  If:

                     (a)  the consultation occurs because paragraph 58(1)(c) applies; and

                     (b)  after the consultation, the Environment Minister is satisfied that the State or Territory has given effect, or will give effect, to the agreement in a way that is inconsistent with a national environmental standard;

the Environment Minister may give the appropriate Minister of the State or Territory a written notice described in subsection (2) or (3).

6  After Chapter 3

Insert:

Chapter 3A National environmental standards

Part 5A National environmental standards

Division 1 Introduction

65B   Simplified outline of this Part

The Minister may make national environmental standards. There are to be regular reviews of the standards.

Certain decisions or things under this Act must not be inconsistent with a standard. There are exceptions for decisions made or things done in the public interest.

Division 2 National environmental standards

65C   Making national environmental standards

             (1)  The Minister may, by legislative instrument, make standards for the purposes of this Act.

Note:          Certain decisions or things under this Act must not be inconsistent with the standards: see Division 3.

Commencement of standards

             (2)  A standard commences on the day specified in the standard, which must be at least 1 month, but not more than 6 months, after the day on which the standard is made.

No disallowance of first standards

             (3)  Section 42 (disallowance) of the Legislation Act 2003 does not apply to each of the first standards made under this section in relation to a particular matter.

Incorporation of other instruments

             (4)  Despite subsection 14(2) of the Legislation Act 2003 , a standard under this section may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing:

                     (a)  as in force or existing at a particular time; or

                     (b)  as in force or existing from time to time;

even if the instrument or other writing does not yet exist when the standard is made.

65D   Varying and revoking national environmental standards

             (1)  The Minister may, by legislative instrument, vary or revoke a national environmental standard.

             (2)  A variation commences on the day specified in the variation, which must be not more than 6 months after the day on which the variation is made.

Incorporation of other instruments

             (3)  Despite subsection 14(2) of the Legislation Act 2003 , a variation under this section may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing:

                     (a)  as in force or existing at a particular time; or

                     (b)  as in force or existing from time to time;

even if the instrument or other writing does not yet exist when the variation is made.

65E   Standards etc. may deal with transitional arrangements

             (1)  A national environmental standard made under section 65C, or a variation under section 65D of such a standard, may specify the circumstances in which the standard or variation does not apply in relation to a decision or thing covered by subsection 65H(1).

             (2)  Without limiting subsection (1), the circumstances may relate to one or more processes begun before the commencement of the standard or variation.

65F   Notifying States and Territories of national environmental standards

             (1)  If the Minister (the Environment Minister ) makes, varies or revokes a national environmental standard, the Environment Minister must notify, in writing, the appropriate Minister of a State or Territory that is party to a bilateral agreement of the making, variation or revocation.

             (2)  For the making or variation of a national environmental standard, the notification must request that the appropriate Minister of the State or Territory advise, in writing, the Environment Minister of whether:

                     (a)  any bilaterally accredited management arrangement, or any bilaterally accredited authorisation process, for the purposes of the agreement is inconsistent with the standard or the standard as varied; and

                     (b)  any assessment of an action, covered by a declaration referred to in subsection 47(1), in the manner specified in the agreement will be inconsistent with the standard or the standard as varied.

             (3)  Subsection (2) does not apply in relation to a variation of a national environmental standard if the Environment Minister is satisfied that the variation is minor.

65G   Reviews of national environmental standards

             (1)  The Minister must cause reviews to be undertaken of each national environmental standard.

Timing of reviews

             (2)  The first review must be undertaken within 2 years of the standard commencing.

             (3)  Later reviews must be undertaken at intervals of not more than 5 years.

Report

             (4)  The persons undertaking the review must give the Minister a written report of the review.

Publication

             (5)  The Minister must cause the report to be published on the Department’s website as soon as practicable after the report is given to the Minister.

Division 3 Requirements for decisions or things under this Act

65H   Requirements for decisions or things under this Act

             (1)  Subject to this Part, a person making a decision, or doing a thing, under this Act, being a decision or thing that is determined in an instrument under subsection (4), must be satisfied that the decision or thing is not inconsistent with a national environmental standard.

             (2)  In considering whether the decision or thing is not inconsistent with a national environmental standard, the person may take into account the following matters:

                     (a)  policies, plans or programs of the Commonwealth, a State or self-governing Territory;

                     (b)  funding by the Commonwealth, a State or self-governing Territory of activities related to the environment;

                     (c)  funding by the Commonwealth, a State or self-governing Territory of activities related to the promotion, protection or conservation of heritage.

             (3)  Subsection (2) does not limit the matters the person may take into account.

             (4)  The Minister may, by legislative instrument, determine a decision or thing for the purposes of subsection (1).

Transitional arrangements

             (5)  An instrument under subsection (4) may specify the circumstances in which subsection (1) does not apply in relation to the making of the decision or the doing of the thing.

             (6)  Without limiting subsection (5), the circumstances may relate to one or more processes begun before the commencement of the instrument.

Exception—public interest

             (7)  Subsection (1) does not apply to the making of a decision, or the doing of a thing, by the Minister if:

                     (a)  the decision or thing is determined in an instrument under subsection (8); and

                     (b)  the Minister is satisfied that the decision or thing is in the public interest.

             (8)  The Minister may, by legislative instrument, determine a decision or thing for the purposes of paragraph (7)(a).

             (9)  If subsection (1) does not apply to the making of a decision, or the doing of a thing, because of subsection (7), the Minister must, as soon as practicable after making the decision or doing the thing, cause a statement to be published on the Department’s website setting out the reasons why the Minister is satisfied that the decision or thing is in the public interest.

7  Section 528

Insert:

national environmental standard means a standard in force under Part 5A.

8  Application provisions

(1)       Paragraph 46(3)(aa) of the Environment Protection and Biodiversity Conservation Act 1999 , as inserted by this Part, applies in relation to the accreditation of a management arrangement or an authorisation process on or after the commencement of this item, whether the bilateral agreement was entered into before, on or after that commencement.

(2)       The repeal and substitution of subsection 47(2) of the Environment Protection and Biodiversity Conservation Act 1999 made by this Part applies in relation to a bilateral agreement entered into on or after the commencement of this item.

(3)       Subsection 48A(3A) of the Environment Protection and Biodiversity Conservation Act 1999 , as inserted by this Part, applies in relation to a bilateral agreement entered into on or after the commencement of this item.

(4)       The amendment of subsection 58(1) of the Environment Protection and Biodiversity Conservation Act 1999 made by this Part applies in relation to a bilateral agreement entered into before, on or after the commencement of this item.

(5)       Subsection 59(1A) of the Environment Protection and Biodiversity Conservation Act 1999 , as inserted by this Part, applies in relation to a bilateral agreement entered into before, on or after the commencement of this item.

(6)       Subsection 65H(1) of the Environment Protection and Biodiversity Conservation Act 1999 , as inserted by this Part, applies in relation to a decision made, or thing done, on or after the commencement of this item.

(7)       Subitem (6) has effect subject to section 65E and subsection 65H(5) of the Environment Protection and Biodiversity Conservation Act 1999 , as inserted by this Part .

Part 2 Contingent amendments

Environment Protection and Biodiversity Conservation Act 1999

9  Paragraph 46(3)(aa)

After “standards—”, insert “the Minister is satisfied that”.