Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Schedule 2—Environment Assurance Commissioner

Schedule 2 Environment Assurance Commissioner

   

Environment Protection and Biodiversity Conservation Act 1999

1  After Part 18

Insert:

Part 18A Environment Assurance Commissioner

Division 1 Simplified outline of this Part

501A   Simplified outline of this Part

There is to be an Environment Assurance Commissioner.

The Commissioner has the main functions of:

       (a)     monitoring or auditing (or both) the operation of bilateral agreements; and

      (b)     monitoring or auditing (or both) various processes under Chapter 4 of this Act (about environmental assessments and approvals); and

       (c)     monitoring or auditing (or both) the actions taken to monitor compliance with Parts 3, 7 and 9.

The Commissioner must finalise work plans for each financial year setting out the priorities for the Commissioner for that year.

Division 2 Establishment and functions of Environment Assurance Commissioner

501B   Environment Assurance Commissioner

                   There is to be an Environment Assurance Commissioner.

501C   Environment Assurance Commissioner’s functions

             (1)  The Environment Assurance Commissioner has the following functions:

                     (a)  to monitor or audit (or both) the operation of bilateral agreements;

                     (b)  to monitor or audit (or both) the processes under this Act in relation to one or more of the following:

                              (i)  the making of decisions under Part 7 about whether actions are controlled actions;

                             (ii)  the assessment under Part 8 of the relevant impacts of controlled actions;

                            (iii)  the approval under Part 9 of the taking of controlled actions;

                            (iv)  the assessment under Division 1 of Part 10 of the impacts of actions and the approval under that Division of the taking of actions;

                             (v)  the giving of advice under Subdivision A of Division 4 of Part 11 in relation to proposals to give authorisations of actions;

                     (c)  to monitor or audit (or both) the actions taken to monitor compliance with Parts 3, 7 and 9;

                     (d)  to prepare reports on audits referred to in paragraph (a), (b) or (c);

                     (e)  any other functions conferred by this Part;

                      (f)  any other functions prescribed by the regulations;

                     (g)  to do anything incidental to, or conducive to, the performance of the above functions.

Publication of audit report

             (2)  The Environment Assurance Commissioner must publish each audit report on the internet within 30 business days of the Commissioner completing the report.

Limitation

             (3)  This section does not permit the Environment Assurance Commissioner to monitor or audit a single decision.

Note:          Monitoring or auditing under this section must be more general.

Request for assistance

             (4)  The Environment Assurance Commissioner may, in performing the Commissioner’s functions, request a person to provide information or documents, or answer questions, if the Commissioner reasonably believes that the person has information or documents relevant to the performance of those functions.

Division 3 Appointment of Environment Assurance Commissioner and terms and conditions

501D   Appointment

             (1)  The Environment Assurance Commissioner is to be appointed by the Governor-General by written instrument, on a full-time basis or a part-time basis.

Note:          The Environment Assurance Commissioner may be reappointed: see section 33AA of the Acts Interpretation Act 1901 .

             (2)  The Environment Assurance Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

             (3)  A person is not eligible for appointment as the Environment Assurance Commissioner unless the Minister is satisfied that:

                     (a)  the person has a high level of expertise in one or more fields relevant to the Commissioner’s functions; and

                     (b)  the person does not have any interests, pecuniary or otherwise, that conflict or could conflict with the proper performance of the Commissioner’s functions.

             (4)  A person cannot be appointed as the Environment Assurance Commissioner for more than 2 terms.

501E   Acting appointments

                   The Minister may, by written instrument, appoint a person to act as the Environment Assurance Commissioner:

                     (a)  during a vacancy in the office of the Commissioner (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Commissioner:

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

Note:          For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901 .

501F   Remuneration

             (1)  The Environment Assurance Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Commissioner is to be paid the remuneration that is prescribed by the instrument under subsection (4).

             (2)  The Environment Assurance Commissioner is to be paid the allowances that are prescribed by the instrument under subsection (4).

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973 .

             (4)  The Minister may, by legislative instrument, prescribe:

                     (a)  remuneration for the purposes of subsection (1); and

                     (b)  allowances for the purposes of subsection (2).

501G   Leave of absence

Full-time appointment

             (1)  If the Environment Assurance Commissioner is appointed on a full-time basis:

                     (a)  the Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal; and

                     (b)  the Minister may grant the Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

Part-time appointment

             (2)  If the Environment Assurance Commissioner is appointed on a part-time basis, the Minister may grant the Commissioner leave of absence on the terms and conditions that the Minister determines.

501H   Other paid work

Full-time appointment

             (1)  If the Environment Assurance Commissioner is appointed on a full-time basis, the Commissioner must not engage in paid work outside the duties of the Commissioner’s office without the Minister’s approval.

Part-time appointment

             (2)  If the Environment Assurance Commissioner is appointed on a part-time basis, the Commissioner must not engage in any paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the Commissioner’s functions.

501J   Disclosure of interests

                   The Environment Assurance Commissioner must give written notice to the Minister of all interests, pecuniary or otherwise, that the Commissioner has or acquires and that conflict or could conflict with the proper performance of the Commissioner’s functions.

501K   Resignation

             (1)  The Environment Assurance Commissioner may resign the Commissioner’s appointment by giving the Governor-General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor-General or, if a later day is specified in the resignation, on that later day.

501L   Termination of appointment

             (1)  The Governor-General may terminate the appointment of the Environment Assurance Commissioner:

                     (a)  for misbehaviour; or

                     (b)  if the Commissioner is unable to perform the duties of the Commissioner’s office because of physical or mental incapacity.

             (2)  The Governor-General may terminate the appointment of the Environment Assurance Commissioner if:

                     (a)  the Commissioner:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with the Commissioner’s creditors; or

                            (iv)  makes an assignment of the Commissioner’s remuneration for the benefit of the Commissioner’s creditors; or

                     (b)  if the Commissioner is appointed on a full-time basis:

                              (i)  the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

                             (ii)  the Commissioner engages, except with the Minister’s approval, in paid work outside the duties of the Commissioner’s office (see subsection 501H(1)); or

                     (c)  if the Commissioner is appointed on a part-time basis—the Commissioner engages in paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the Commissioner’s functions (see subsection 501H(2)); or

                     (d)  the Commissioner fails, without reasonable excuse, to comply with section 501J.

501M   Other terms and conditions

                   The Environment Assurance Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Part that are determined by the Minister.

501N   Application of the finance law

             (1)  For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013 ), the Environment Assurance Commissioner is an official (within the meaning of that Act) of the Department.

Note:          The Commissioner’s responsibilities as an official under the finance law include duties in relation to exercising due care and diligence, acting in good faith and for a proper purpose and not improperly using information or position (see Division 3 of Part 2-2 of the Public Governance, Performance and Accountability Act 2013 ).

             (2)  However, section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) does not apply to the Environment Assurance Commissioner.

Note:          Section 29 of that Act does not apply to the Commissioner because the duty is instead imposed on the Commissioner under section 501J of this Act.

Division 4 Annual work plans

501P   Annual work plans

Minister’s statement of expectations

             (1)  The Minister must, as soon as practicable before the start of each financial year, give the Environment Assurance Commissioner a written statement of expectations for that year.

Commissioner to prepare work plan

             (2)  The Environment Assurance Commissioner must prepare and give to the Minister a written work plan for that year. The plan must set out the priorities for the Commissioner for that year.

             (3)  The Environment Assurance Commissioner must have regard to the Minister’s statement in preparing that plan. This subsection does not limit the matters to which the Commissioner may have regard.

Minister’s response

             (4)  The Minister must:

                     (a)  inform the Environment Assurance Commissioner, in writing, that the Minister agrees with the plan; or

                     (b)  request the Environment Assurance Commissioner, in writing, to make changes to the plan and include with the request the reasons for the request.

Commissioner to finalise plan

             (5)  The Environment Assurance Commissioner must finalise the plan after receiving the Minister’s response under subsection (4) and after having regard to any changes the Minister requests.

Commissioner to give Minister copy of plan

             (6)  The Environment Assurance Commissioner must give the Minister a copy of the finalised work plan as soon as practicable after the Commissioner finalises the plan.

Publication

             (7)  The Environment Assurance Commissioner must publish the following on the internet:

                     (a)  the finalised work plan;

                     (b)  the statement of expectations;

                     (c)  any request under paragraph (4)(b) and the reasons for the request.

The Commissioner must do this as soon as practicable after the Commissioner finalises the plan.

Plan and statement of expectations are not legislative instruments

             (8)  The following are not legislative instruments:

                     (a)  the finalised work plan;

                     (b)  the statement of expectations.

501Q   Variation of work plans

             (1)  The Environment Assurance Commissioner may, in writing, vary a work plan.

             (2)  The Environment Assurance Commissioner must give the Minister a copy of the varied work plan.

Publication

             (3)  The Environment Assurance Commissioner must publish the varied work plan on the internet as soon as practicable after the variation.

Variation is not a legislative instrument

             (4)  A variation under subsection (1) is not a legislative instrument.

Division 5 Other matters

501R   Commissioner not subject to directions by Minister

                   The Environment Assurance Commissioner is not subject to the directions of the Minister in relation to the Commissioner performing the Commissioner’s functions.

501S   Minister may request the Commissioner to perform functions

Minister’s request

             (1)  The Minister may, in writing, request the Environment Assurance Commissioner to perform the Commissioner’s functions covered by one or more of paragraphs 501C(1)(a), (b), (c) and (d) in relation to a matter specified in the request.

             (2)  The Minister must include with the request the reasons for the request.

Environment Assurance Commissioner’s decision

             (3)  The Environment Assurance Commissioner must agree, or refuse to agree, to the request.

             (4)  The Environment Assurance Commissioner must inform the Minister, in writing, of the Commissioner’s decision on the request and the reasons for the decision.

Publication

             (5)  The Environment Assurance Commissioner must publish the following on the internet:

                     (a)  the Minister’s request and the reasons for the request;

                     (b)  the Commissioner’s decision on the request and the reasons for the decision.

The Commissioner must do this within 30 business days of the Commissioner’s decision on the request.

501T   Assistance from APS employees

                   The Secretary may make the services of APS employees in the Department available for the purposes of assisting the Environment Assurance Commissioner perform the Commissioner’s functions.

501U   Disclosure of information or provision of documents

             (1)  The Environment Assurance Commissioner may disclose information, or provide a document, the Commissioner obtains in the course of performing the Commissioner’s functions to:

                     (a)  the Minister; or

                     (b)  the Secretary; or

                     (c)  an APS employee in the Department; or

                     (d)  a member of a committee established under Part 19 if the Commissioner is satisfied that the information or document will assist the committee to perform its functions; or

                     (e)  a member of the Australian Heritage Council if the Commissioner is satisfied that the information or document will assist the Council to perform its functions; or

                      (f)  any other person or body prescribed by the regulations for the purpose prescribed by the regulations.

             (2)  The information disclosed may be personal information (within the meaning of the Privacy Act 1988 ) or the document provided may contain personal information (within the meaning of that Act).

501V   Annual report

             (1)  The Environment Assurance Commissioner must for each financial year:

                     (a)  prepare and give to the Minister, for presentation to the Parliament, a report about the Commissioner’s activities during that year; or

                     (b)  prepare and give to the Minister a report about the Commissioner’s activities during that year, for inclusion in a report (the overall report ) prepared in relation to the Department and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 .

Note:          See also section 34C of the Acts Interpretation Act 1901 , which contains extra rules about annual reports.

             (2)  The Environment Assurance Commissioner must publish on the internet the report the Commissioner gives to the Minister. The Commissioner must do this as soon as practicable after:

                     (a)  if paragraph (1)(a) applies—the report referred to in that paragraph is laid before each House of the Parliament; or

                     (b)  if paragraph (1)(b) applies—the overall report referred to in that paragraph is laid before each House of the Parliament.

501W   Delegation

             (1)  The Environment Assurance Commissioner may, in writing, delegate all or any of the Commissioner’s functions or powers under this Part to:

                     (a)  the Secretary; or

                     (b)  an SES employee, or acting SES employee, in the Department whose services have been made available under section 501T.

             (2)  Subsection (1) does not apply to the Commissioner’s functions under subsection 501P(5) or 501S(3) or (4) or section 501V.

             (3)  A person performing functions or exercising powers under a delegation under subsection (1) must comply with any directions of the Commissioner.

2  Section 528

Insert:

paid work means work for financial gain or reward (whether as an employee, a self-employed person or otherwise).

3  Application and transitional provisions—work plans

(1)       Section 501P of the Environment Protection and Biodiversity Conservation Act 1999 , as inserted by this Schedule, applies in relation to each financial year starting after the first day of the first term of office of the first Environment Assurance Commissioner.

(2)       If the first day of the first term of office of the first Environment Assurance Commissioner occurs in the first 6 months of a financial year:

                     (a)  that section, except subsection 501P(1), also applies in relation to the remainder of that financial year; and

                     (b)  the Minister must, as soon as practicable after that day, give the Environment Assurance Commissioner a written statement of expectations for the remainder of that financial year.

4  Application provision—annual report

Section 501V of the Environment Protection and Biodiversity Conservation Act 1999 , as inserted by this Schedule, applies in relation to each financial year for which there is a work plan under section 501P of that Act.