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Environment and Communications Legislation Committee
04/05/2021

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FLANIGAN, Ms Emma, Director, Legislative Development Section, Environment Protection Reform Branch, Department of Agriculture, Water and the Environment

MANNING, Mr Greg, Acting First Assistant Secretary, Environment Protection and Reform Division, Department of Agriculture, Water and the Environment

O'CONNOR-COX, Mr Declan, Assistant Secretary, Environment Protection Reform Branch, Department of Agriculture, Water and the Environment

TREGURTHA, Mr James, Acting Deputy Secretary, Major Environmental Reform Group, Department of Agriculture, Water and the Environment

[15:25]

CHAIR: Welcome. I understand that information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. I remind senators that the Senate has resolved that an officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted. Officers of the department are also reminded that any claim that it would be contrary to the public interest to answer a question must be made by a minister and should be accompanied by a statement setting out the basis for the claim. I understand that you don't have an opening statement. We will now go to questions. Senator Hanson» - «Young» .

Senator «HANSON» - «YOUNG» : Thank you, Chair. I will kick off with the standards, which were released late last year. When were they officially released?

Mr Manning : I think they were provided to this committee on 30 April, and that was the date on which they were published on the department's website.

Senator «HANSON» - «YOUNG» : What time was that?

Mr Manning : Sorry, Mr O'Connor-Cox has just pointed out that it was the day before that.

Mr O'Connor-Cox : Yes, they were published on the website on 29 April.

Senator «HANSON» - «YOUNG» : Was there an accompanying statement from the minister or from the secretary?

Mr Manning : No.

Senator «HANSON» - «YOUNG» : They just popped up there?

Mr Manning : They were published on the website and they were provided to the committee.

Senator «HANSON» - «YOUNG» : Is it usual practice for a significant regulation, proposed in the midst of a parliamentary debate, to just be put up on the website somewhere—you'd have to know where to look—without a statement from the minister?

Mr Manning : I'm not sure if it is usual practice, but it was felt that it was appropriate to provide it to the committee ahead of these hearings. That was done. As to how it usual that is, I don't know that I have of you.

Senator «HANSON» - «YOUNG» : Was there a draft press release that just wasn't published? Was there a draft press release written?

Mr Manning : I don't believe there was a draft press release.

Senator «HANSON» - «YOUNG» : Were the standards published because this committee was having its hearing today?

Mr Manning : On balance, it was considered that it would be useful for the committee to have a copy of the standards in the bill before it in light of this hearing.

Senator «HANSON» - «YOUNG» : Who was consulted about these standards?

Mr Manning : The minister looked to convene a group of stakeholders—which was reasonably representative—on the business and industry side of things. She convened a roundtable—I believe it was back in January—with a series of members on that group, where she consulted with them in relation to this copy.

Senator «HANSON» - «YOUNG» : So there was a roundtable in January—business and industry, did you say?

Mr Manning : Yes. I can list the members if you like.

Senator «HANSON» - «YOUNG» : That would be helpful. Thank you.

Mr Manning : Those present were the Places You Love Alliance, WWF, HIS, the Business Council of Australia, the Minerals Council of Australia, NFF and APPEA.

Senator «HANSON» - «YOUNG» : We've heard from all of them today and each group consisted they weren't consulted, they were simply told.

Mr Tregurtha : In the construction of the standards, the minister, as Mr Manning has pointed out, convened that discussion with a range of stakeholders who have met with the minister. The other thing to point out is that the department, on behalf of the minister, wrote to all of the states and territories earlier this year—from memory it was in late January—to consult with all the states and territories as well.

Senator «HANSON» - «YOUNG» : The states and territories have been consulted but the national peak bodies, both business and environment, were just told?

Mr Tregurtha : As we said just before, the minister did convene a discussion with stakeholders from both industry and environment groups.

Senator «HANSON» - «YOUNG» : Were any changes made to the standards from the meeting of the roundtable in January in what has now been published as the final draft?

Mr Manning : I think there were some minor changes made in the period. As Mr Tregurtha said, they were sent to the states, there was that roundtable, and then there were some minor tweaks made before they became the final interim standards the minister has provided.

Senator «HANSON» - «YOUNG» : And what were those tweaks?

Mr Manning : I will go back to the national cabinet decision on 11 December, where the Prime Minister in particular suggested that we should codify the EPBC Act as a first step. So, really, the changes that were made were to make sure we had done that job appropriately and had codified it accurately.

Senator «HANSON» - «YOUNG» : I'd like a marked up copy with the changes. That would make it very clearly for everybody what the changes are.

Mr Tregurtha : We're very happy to take that notice.

Senator «HANSON» - «YOUNG» : Thank you. I appreciate that. Did the states and territories ask for specific things to be included in these standards?

Mr Manning : I don't think we got comments from all of the jurisdictions but we certainly got comments from some of them. Each of them made a different kind of input. I don't recall that they asked for specific things rather than commenting on particular aspects of it. They were asking questions in regard to how they would interact with bilateral agreements, for example.

Senator «HANSON» - «YOUNG» : Do all the states and territories support the package that the government has put forward, including these standards?

Mr Manning : By 'the package', do you mean—

Senator «HANSON» - «YOUNG» : The legislation and the standards.

Mr Manning : All states and territories have given their support, through national cabinet, for the devolution and the streamlining and to continue that discussion with us—so, in that sense, yes.

Mr Tregurtha : Senator, as Mr Manning has pointed out, the national cabinet, in which, as you are aware, all the first ministers are involved, in July last year discussed single-touch-approval bilateral agreements and indicated unanimous support for pursuing those agreements. In December, national cabinet, which Mr Manning has referred to, expressed support for pursuing single-touch-approval bilateral agreements supported by national environmental standards. I think that's clear. As to the precise views of each state and territory in relation to the package as you've described it, that is something you would have to do consult with each individual state and territory on.

Senator «HANSON» - «YOUNG» : Do any of the states and territories support Professor Samuel's standards?

Mr Tregurtha : Again, I think that's a question for the states and territories.

Senator «HANSON» - «YOUNG» : No. You're in charge of this process. You've been running it. You've run the consultations. You've put to parliament and to this committee what government wants to see passed. Surely you know?

Mr Tregurtha : As I expressed earlier, in January the department provided a draft version of the standards that met the intent of national cabinet. In December, that draft was provided to the states and territories. They all had an opportunity to comment on that draft, but not all of them did. Where comments were provided, the department took those into account in advising the minister and government in relation to the final set of draft standards, which are the ones Mr Manning referred to as having been published recently.

Mr Manning : And I think because of that national cabinet decision the conversation we've been having with the states has been based upon the version that we had. So we haven't been exploring any other version of the standards with the states.

Senator «HANSON» - «YOUNG» : Have you gone through a number of scenarios as to how these standards would be implemented? Have you thought through the practicality of how they would work?

Mr Manning : Yes, in the sense of working through—this bill contains commitments that require, for example, the states to make a commitment in bilateral agreements to not act inconsistently with the standards. So yes, we definitely have been thinking through how that translates into that space and how we give effect to those requirements of this legislation.

Senator «HANSON» - «YOUNG» : Can you foresee a scenario where the standards wouldn't be met?

Mr Manning : In the space of the bilateral agreements with the states, the states are required, through this bill, to make a commitment to not act inconsistently with the standards. In that sense, the bill doesn't give them any latitude in that regard. And I think the same obligations apply to the Commonwealth. That is the intent with which we set up an architecture to support that.

Senator «HANSON» - «YOUNG» : Is there any mine that wouldn't get approval under the standards?

Mr Manning : There could be, yes. That could certainly be the case.

Senator «HANSON» - «YOUNG» : Can you explain to me how that would be the case.

Mr Manning : There are two things. When you start to get into specific projects and proposals in the bilateral agreement space, which I presume is where your thinking is, the standards are one thing—and this bill introduces a requirement for the states not to act inconsistently with that. But, in addition to that, there are also all the requirements of part 5 of the EPBC Act which the states must adhere to in relation to the operation of bilateral agreements as well. There are a whole series of tests that the states have to jump over in order to have their system accredited and to have an operational bilateral agreement. One of those tests is that the minister is satisfied that there won't be an unacceptable or unsustainable impact. When a state works through—

Senator «HANSON» - «YOUNG» : The minister or her delegate—whoever the power is delegated to.

Mr Manning : The minister will be the one entering a bilateral agreement; I can't imagine that would be a delegated decision—

Senator «HANSON» - «YOUNG» : So you're only talking about the bilaterals. Once a bilateral is signed and a state government is signing off on projects—give me a project that wouldn't pass this test.

Mr Tregurtha : Senator, I think you're asking a hypothetical—

Senator «HANSON» - «YOUNG» : To be fair, yes I am—and I know it's difficult to answer these types of questions. Surely you've had to think through how this will work in practice, how this will actually be operationalised.

Mr Tregurtha : Absolutely.

Senator «HANSON» - «YOUNG» : And if you are asking the parliament to sign off on this when it's not enforceable in law—yet we should hand our powers over to the states or through the minister to delegate through a bilateral—I think we need some examples of what passes the test and what doesn't pass the test.

CHAIR: The department can take that on notice if you need to.

Mr Manning : The Commonwealth currently, under the act, can't make decisions which are inconsistent with the requirements of part 7 to 9 of it. Under a bilateral agreement, the states can't make a decision which would have an unacceptable or unsustainable impact or which is inconsistent with the standards. It is possible that things come up which might be so egregious in nature that they trip those, or that the bilateral agreement would not be allowing the state to make a decision if that were the circumstance.

Senator «HANSON» - «YOUNG» : How will the standards be monitored and enforced?

Mr Manning : There are probably a few components to that. In relation to this bill, the Environmental Assurance Commissioner is one new and strong part of the assurance in relation to the standards. As you would be aware, the bill sets up the commissioner to provide that oversight—to audit and report on the system operating in that—

Senator «HANSON» - «YOUNG» : That sits within your department?

Mr Manning : The Environmental Assurance Commissioner is to be independent.

Senator «HANSON» - «YOUNG» : Independent of whom?

Mr Manning : Independent of the government—not to be directed by the minister. There will be a commissioner, who is statutorily independent in conducting their work, to oversight the agreements. And a big part of that will be including in relation to how making a decision relative to those standards is abiding by them. I think that is a really important part of it. Within the architecture of the bilateral agreements themselves, there will also be assurance which is designed to ensure states are following through on the commitments they have to make to not be inconsistent with the standard and all the other requirements of part 5 of the act, which will also be in the bilateral agreements. So there will be reporting, there will be evaluation mechanisms and there will be audit mechanisms which are conducted on a regular basis to control that system.

Mr Tregurtha : I think the other part of assurance there, Senator, just to add to Mr Manning's answer is, of course, that any state process that is proposed for accreditation and operation under a bilateral agreement needs to be tabled in the parliament for this allowance.

Senator «HANSON» - «YOUNG» : The bilateral?

Mr Tregurtha : The processes from a state government that are proposed to be used to operationalise the bilateral, for want of a better term—all of those processes, before they are able to be operationalised, must be put before the parliament. That's a significant assurance step as well.

Senator «HANSON» - «YOUNG» : Why aren't these standards being put forward as a disallowable instrument themselves? What's the reason for that?

Mr Manning : I guess there are a few points we would make in relation to that. Obviously, you're correct that these ones are not for disallowance in the first instance. They are, however, obviously a legislative instrument that will be tabled in parliament. There will be opportunity for—

Senator «HANSON» - «YOUNG» : Yes, they will be tabled in parliament but the parliament will have no say.

Mr Manning : I'm just saying they are a legislative instrument in their own right, and that requires them to be tabled in parliament. Whatever scrutiny or questions may arise from that will continue to do so. Also, obviously following the national cabinet decision, as the national cabinet required us to do, we have codified the existing, so there is a degree of understanding in relation to what the current standards are. They're not changing anything that's currently operational or in place, so there is that. There's a requirement to review them within two years, so any deviation away from the current system, what is currently codified, will be disallowable.

Senator «HANSON» - «YOUNG» : What's the rationale to saying, 'Down the track we might have some new ones and we'll make them disallowable but these ones won't be'? Is it just because the minister doesn't want them to be disallowable? Was this decision based on advice from the department? Who made the decision?

Mr Tregurtha : The government has made the decision introducing the bill. What I would say in relation to that decision is of course that, as Mr Manning has pointed out, the approach proposed to be taken to this first set—this first set of standards are on a much shorter-term review cycle than the standards into the future, which shift into a five-year review cycle. The intent of putting the standards in place quickly now was to ensure that the department and the government were able to get on with the negotiations around single touch approval bilateral agreements as agreed by national cabinet and to ensure there was a degree of consistency and certainty aligned with the current settings of the act, as Mr Manning has importantly pointed out. As these standards reflect the exact settings as they exist today, it was determined that, in order to provide that surety and certainty to move forward, we would operate in that way, but that any subsequent changes or amendments would, of course, be put before the parliament for disallowance.

CHAIR: Last question, thanks.

Senator «HANSON» - «YOUNG» : So it was to avoid the Senate doing its job. It was to avoid us being able to say, 'No, these are not up to scratch,' because that would be inconvenient for the minister and the Prime Minister at national cabinet.

CHAIR: That's a statement, Senator «Hanson» - «Young» . I'm going to go to Senator Green. You have the call Senator Green.

Senator GREEN: Thank you, Chair, but I think it's a pretty fair question. I mean, what is the rationale for making these standards disallowable?

Mr Tregurtha : For making the standards disallowable, Senator?

Senator GREEN: Yes. They are disallowable for two years—isn't that correct?

Mr Tregurtha : After the two year point, where there's a mandatory review, there is a review cycle that's established every five years. It was determined that it's necessary for the standards to be a dynamic instrument because, clearly, things change and will change into the future, but that any change to that legislative instrument should be put before the parliament.

Senator GREEN: That wasn't really the answer to my question. Why is it necessary to make the standards disallowable for the first two years?

CHAIR: Senator Green, I think the official did answer your question. I think your question is actually incorrect because the current standards are not disallowable. That's the point of contention in the first two years.

Senator GREEN: Sorry, that's what I'm trying to—I apologise.

Senator «HANSON» - «YOUNG» : It's a double negative.

Senator GREEN: Yes, I've got a double negative there. Why are you putting these out of reach of the parliament for two years?

Mr Tregurtha : As I just said in answer to Senator «Hanson» - «Young's» question, the standards, as Mr Manning pointed out, reflect the current settings of the EPBC Act. They reflect an existing legislative instrument. They are important to provide an underpinning and surety and confidence around a pathway towards entering into single-touch bilateral-approval agreements with the states and the territories. So, in that regard, it was determined—and the government has put forward the bill in this form—that these standards need to be reviewed within two years. They are short term, compared to the ongoing review cycle, and reflect existing settings of existing legislation.

Mr Manning : In addition to that, as Mr Tregurtha noted—and I think the chair also noted it earlier in the day—that, before the standards through the bilateral agreements become operational, the states' legislative procedures need to be tabled, and they are also disallowable instruments.

Senator GREEN: I'm not interested in that. That's a very clever answer, but what I'm asking about are these standards and why they're being put out of the reach of the Senate. What we're being asked to do is pass legislation which has attached to it regulations which are not disallowable. I think that's my double negative that I've been trying to explain. That has implications if you are a senator. I gave the example this morning of the biosecurity legislation that is now allowing regulations to be made that are not disallowable but are having extreme impacts on Australians. I know it's not the same content, but it's a very big decision for senators to make to allow legislation to be put forward that will have regulations attached to it that you cannot disallow.

One of the witnesses that we spoke to was hopeful that, even though the standards are being put forward for two years, there would be an attempt in the next two years to amend the standards and make them better. I don't think that's happening here, and I want to clear that up so that everyone understands. Is there an intention to set the standards for two years and leave them at that?

Mr Tregurtha : Sorry, when you say 'and leave them at that'—

Senator GREEN: No changes for two years is what you're saying, and that's why you need the two years—

Mr Tregurtha : No.

Senator GREEN: because you need them to be the same and consistent for two years. So, they're not going to change, are they?

Mr Tregurtha : My colleagues will correct me if I'm wrong, but there's a mandatory review built into the legislation that requires those standards to be reviewed within two years. The exact timing—

Senator GREEN: No, that's not what I'm asking. I'm asking if it's the intention of the government to amend the standards within that two-year time frame.

Mr Manning : I'd go back to the minister's second reading speech. She indicated that this is a starting point and that the reform journey will continue.

Senator GREEN: Sure, but are you starting now and then leaving it for two years until you have to do it? You can say that as well, if it hasn't been—

Mr Tregurtha : The timing of any future change to the standards would ultimately be a matter for government.

Senator GREEN: Okay. We'll let our witnesses know that that's the case. The government argues that the standards increase protection by making the act more user friendly, but some of the witnesses that we've heard from today said that it takes environmental protections backwards. Why is the government choosing to use this form of standards, and what's the policy basis for putting forward this set of standards rather than a new, improved, more robust set of standards?

Mr Manning : I think the government have indicated that in the first instance this is a big reform to put a framework in place to enable the creation of national environmental standards, and they have indicated that's where they want to start; that's the starting point for it. They've committed to working through further changes in a staged and planned way, and will do so. So I think that these standards reflect that decision of trying to begin the reform journey and start us down that path.

Senator GREEN: How is that consistent with the Samuel review?

Mr Manning : Well, certainly the central pillars of what this bill does are consistent with the Samuel review to create the ability to have national environmental standards to underpin bilateral agreements. That was a central part of his thesis, as was the requirement for the assurance to back that in. So this bill is acting upon those two elements.

Senator GREEN: Which two elements?

Mr Manning : The creation of the capacity for national environmental standards, and independent assurance.

Senator GREEN: Okay. We're going to come to independent assurance later, but what's happening in reality is that the government is replicating the EPBC Act in a set of standards. You admit that they are a replication of the act. There might be an improvement to those standards in two years—maybe; we'll see—but there probably won't be any changes for two years. There's a devolution of power to the states.

Senator «HANSON» - «YOUNG» : It certainly won't be before the next election.

CHAIR: Order!

Senator GREEN: There's a passing of powers on to the states. How is that consistent with the Samuel review, which said that there's an overall state of decline and that the environment is under increasing threat? This is urgent stuff that the Samuel review identified, but we're just pushing it down the line.

Mr Manning : I think the government is moving to put in place an initial tranche of reform and it has committed to working through and to indicate the further reform beyond that.

Senator GREEN: Okay. So many people put so much time into the Samuel review. Can I just say that as a comment. We are going to ask those people to put together the hours of work that they put in to preparing submissions to the Samuel review, and now it's being pushed off again. Can I ask about the standards that the Samuel review did propose. There are obviously differences between what the government's proposing and what the Samuel standards were, and I just want to look at those differences. In terms of the threatened species and ecological communities, can you explain what the differences are between the Samuel standards and what the minister has put forward and why there's a difference? What's the need to have that difference?

Mr Manning : I'm not sure that I could, on the spot do that compare and contrast in an accurate way. I would probably need to go and get the two documents before me, but I would be happy to take that on notice, unless one of my colleagues can answer that more directly here and now.

Mr Tregurtha : I think Mr Manning is right, Senator. However, the only other thing I would say is that, again, as we have already provided in evidence, the outcome of the December national cabinet was to pursue a set of standards that reflected the current settings of the EPBC Act in the way that was drafted. Certainly that is what the department has undertaken to do. That's why we've prepared that set of standards, which has been, as we've already talked about, consultation and publication of those standards.

Senator GREEN: Okay. This might continue to come up, so I'm trying to ask about what's happening now. I know there's been a national cabinet decision. National cabinet isn't really a cabinet, right—it's a teleconference that happens. It is still within the government's capacity to improve on the environmental standards that are currently in the act. I know that there was a cabinet decision, but that is no protection for the government in not doing what they should be doing to protect the environment. Is there anything in the government's proposed standards that mentions avoiding adverse impacts to critical habitat?

Mr Manning : I mean, other than to the extent—I'm trying to think, Senator, back to the wording of the act, and I can't quite do it in that detail at the moment. There are obviously within the construct of the act—

Senator GREEN: Have you got a copy of the standards?

Mr Manning : No, I don't have a copy of the standards in front of me at this second. My colleagues might. But there is language within the EPBC Act, and the assessments of projects for approval is designed to undertake and look at adverse impacts to the habitat for listed protected matters. Now, to the extent that's true, that is replicated, codified, in the version of the national environmental standards. There's no change in that regard.

Senator GREEN: Yes, there's no change. Is there anything about population numbers in the government's proposed standards? We just heard from Dr Helene Marsh about the need for outcome-based standards that would protect threatened species. Is there anything about population numbers in the standards?

Mr Manning : Once again, if there is, it will be the same as the existing settings of the EPBC Act.

Senator GREEN: Is there anything about improving the condition of endangered ecological communities?

Mr Manning : Similar response: the act requires the assessment of impacts likely to impact on critically endangered ecological communities and to avoid, mitigate or offset those kind of attributes, which you would be familiar with. They carry over through this process.

Senator GREEN: What about in terms of Indigenous cultural heritage? How do the standards affect Indigenous cultural heritage in an improved way? That's what the Samuel review said that we needed, and we have had examples in the last year of where cultural heritage has been destroyed. How do the standards seek to improve the protection of Indigenous cultural heritage?

Mr Manning : Obviously the current, existing EPBC Act includes objects and requirements in relation to engagement with Indigenous people as part of the decision-making process. I'm quite sure that is part of it, and once again that will be translated and carried over into the existing set of standards. The flow-through of all of this is, as we continue discussions with the states in relation to the bilateral agreements, the states are going to have to make a commitment now to conduct their operations in a manner which is at least not inconsistent with all of those requirements which the Commonwealth currently has to adhere to. I guess through that process we do see a broadening of the reach of the EPBC Act.

CHAIR: Senator Green, I'm going to go to Senator Davey, because she has another commitment and she has to leave in about 10 or 15 minutes. I'm happy to come back to you.

Senator GREEN: I have another commitment as well. I've just got a couple of questions to get through. We can go to Senator Davey, but can we get the call back when Senator Urquhart comes back on the line?

CHAIR: Sure. I understand Senator Urquhart is coming back to pick up the opposition's line of questioning.

Senator GREEN: Sorry, I wasn't trying to stop Senator Davey; I'm just explaining that when you come back I might not be here.

Senator DAVEY: That's okay, Senator Green, and I will be very brief. I just have a couple of questions, because there has been a lot of commentary today on the make-up of the interim standards and the quality of those standards, regardless of the actual content, and my understanding is the purpose of having interim standards in the first place, with the two-year review built into the system, enables us to build on and improve the standards over the next two years. But does the department see the creation of standards as a first step, as a step forward? We've heard from some groups they see it as definitely a step forward that will help improve compliance, but other groups have said that this they consider it a retrograde step because it is standardising what is already in existence rather than building on that. Have you got a comment?

Mr Manning : I guess I would go back to Professor Samuel's review. His advice to the government was that the creation of standards to underpin bilateral agreements was an important way to go. To the extent that the government has picked up and adopted that and is seeking to prosecute it through this, obviously the department is supporting and facilitating taking that work forward.

Mr Tregurtha : I do think that there is a point to be made there around having an instrument that is, certainly from our perspective, more accessible than the EPBC Act in relation to the current settings. It reflects the current settings of the act but tries to do so in a more accessible way and in a way that, as Mr Manning has pointed out, can be used as a reference point for the work towards bilateral approval agreements.

Senator DAVEY: My reading of Samuel's review was that he actually had a preference for staged amendments to the EPBC Act. However, there appear to be very differing points of view as to what those stages should be, with some groups believing the first stage should be taking the existing protections, going well and above and beyond as a first step and then continuing it on after that. My reading of it was that we've got to start somewhere. How do you see the current proposal that is before. In line with Samuel's preference for staged amendments, how do you see the current proposals fitting with that staged progress?

Mr Manning : It is a staged way. The minister has flagged that this is initial response to the review to move on these. That's consistent with Samuel saying get started and move in a staged manner. The government has given its commitments to working through what is a very comprehensive report with a very broad range and far-reaching recommendations for reform. The government has indicated it needs to work through that in a measured and planned manner, and that would seem consistent with Samuel's approach as well.

Senator DAVEY: The government's approach provides a pathway towards making permanent standards over the next two years. Can you outline your idea of the work plan towards making those permanent standards? What sort of consultations will there be with stakeholders? We also know we need to bring the state governments on board here.

Mr Manning : I think it's probably our role to work with the minister and the government to provide advice and to support them to develop that, but ultimately it's then up to the minister to indicate how she wishes to proceed in taking that forward. But we will continue to support that process.

Mr Tregurtha : I think it's clear, though, from where we have come in terms of the development of the standards that there's been consultation with the states and territories as well as industry and environment groups, and it's our expectation that, as part of taking that forward into future stages, as Mr Manning has pointed out, we would work with the government and the minister specifically around what a consultation process would look like.

Senator DAVEY: We have heard today from witnesses about their concern that the devolution to the states and the way these interim standards are drafted will not resolve the patchwork or piecemeal approach to environmental protections. Do you have a thought on that? I thought the whole idea of having national standards, albeit interim at this stage, is to address that and provide some consistency between the existing approach and the existing way the EPBC is implemented across jurisdictional boundaries.

Mr Manning : I think that, through our discussions with the states and territories, the work to establish the bilateral approval agreements and the requirement of this bill that the states make a commitment not to act inconsistently with the national standards, in effect we are saying to the states that, regardless what your legislation is and how you operate it, you will need to meet this requirement. I think there's some argument there that that will have, in some way, a harmonising effect in relation to what is application of disparate pieces of legislation at the state level at the current point in time.

CHAIR: The minister in her second reading speech made it very clear that this legislation is not the totality of the government's response to the Samuel review. You have talked about a road map and steps forward. Various witnesses—I think the Minerals Council—said they were pleased to see a road map. Other people said there was no road map. To give confidence to the stakeholders and certainty to industry, what would prevent milestones being articulated and being included, either in the explanatory memorandum or in the legislation itself, so people understood there were definitely goals that were required to be worked towards to achieve permanent standards in line with the consultations that have already been done by Professor Samuel by the end of that two-year review period?

Mr Tregurtha : I think a couple of things in relation to that. The first thing I'd argue is that there is already, in a sense, not a milestone but certainly an obligation contained within the bill, which is around the need for a review of those standards within that two-year period. There's nothing that says it has to be in two years. It may well be in 18 months, for example. So there is a process anticipated within the bill and a process that would need to be followed. I think it's mandatory—I'm looking at my colleagues—to undertake that review and publish the results of that review as well, so there is a pathway mapped out within the standards bill.

More broadly, I think a lot of the conversation from our perspective around the staged approach of dealing with the recommendations of Professor Samuel's advice to the government is really around what's that time frame look like. You used the term road map. I don't think we've used the term road map, but that staged approach has absolutely been something both the Prime Minister and minister have referred to. We'll be working with the minister in relation to how that might look as we roll that out beyond the consideration of this particular bill. But, from our perspective, I think that relates more broadly to the other recommendations of the Samuel review, not solely to the standards recommendation of the Samuel review. So I think that would be a broader undertaking than just a milestone set for standards, as opposed to what's currently in the bill and, as I've said, in relation to a pathway that is already mapped out in the bill to moving from a two-year interim standard into a final standard within that two-year period.

CHAIR: The concern expressed by some stakeholders that are witnesses to this inquiry is that the interim standards are process based standards which are drawn from the EPBC Act in its current form, and that was a decision of national cabinet, so I understand that. But the concern is that a review may endorse those as the permanent standards, whereas what we have seen, almost uniquely I think, is a unity ticket from both environmental groups, academics and industry groups who've said we need to move to the outcome based standards that were envisaged by Professor Samuel. To give stakeholders writ large confidence that the permanent standards will be reflecting the outcome based approach, what would prevent the bill including a sunset clause that the interim standards, which are process based, will cease to have effect at the end of that two-year period such that it would have to be an advertent decision of the parliament to extend them as opposed to something that could just be an outcome of a review?

Mr Manning : I don't know that a sunset clause is something that we have contemplated or turned our minds to at this particular stage. It's possible to do that and consult with the government and the minister about it, but the initial reaction may well produce some uncertainty. In a space where we're working to have single touch approvals with the states and territories—and they're making commitments to a set of standards on what that would mean—it would likely introduce some uncertainty to have the possibility that that just lapses and that architecture just lapses at a particular point in time. But I think we'd have to take that on notice and think about it a little further. We haven't turned out mind to that possible clause.

CHAIR: I'd invite you to take that on notice. The evidence from industry today was that, because the parliament has the option to renew if there is no better solution, that would be acceptable and that there wouldn't necessarily be additional uncertainty. But what it would do is provide a declaratory intent, in fact, a legally binding outcome, where, unless the parliament decided that this was, in fact, the only viable option to extend, the process based standards would go by the end of two years. It strikes me that many of the concerns that have been raised by stakeholders come to the fact that the process based standards don't deliver any more environmental outcomes. Industry have indicated that they actually sees that the outcome based standards are better for both the environment and for industry. So, if the whole Samuel's review process is to mean anything, I think we need to have certainty that we will invest effort and time to achieve outcome based standards before or by the end of, at least, that two-year period. I think a sunset clause, which is used in other areas where there's significant concern within the community—I cite national security legislation as one example—is a vehicle that the parliament has to provide that certainty to the community that something which is an interim solution will not become a permanent solution unless the parliament subsequently deems that as the only realistic way forward. I'd invite you to come back to us on notice, but I invite you to consider that more fully.

We have had some disagreement amongst witnesses around compliance with the existing legal framework of the EPBC Act in terms of these interim standards. A number of the environmental groups have said that the work that Professor Samuel did was compliant and could or should have been used. I think it was the Minerals Council of Australia, in fact, that said some elements in terms of legal definitions and other things went beyond what was currently defined and understood within the legal framework. Could you give us a departmental assessment of why the Samuel's derived standards were not deemed to be compliant with the current legal framework of the EPBC Act?

Mr Manning : I'm not sure we would that. I mean, Professor Samuel was endeavouring to work within the existing standards of the EPBC Act. That's my understanding. He was endeavouring to do that in the construct of his standards. But there was also some testimony, I think, earlier in the day that there was some interpretation involved in terms of distilling out of the existing act in the way those set of standards were crafted. So I don't think I'm suggesting that his standards were not within that framework, broadly speaking. But, I guess, I then would go back to, in terms of the current version of the standards that we have now and the national cabinet decision and the Prime Minister's comments afterwards, that, as the first step, we look to codify the existing requirements. That's the work that the department has done in terms of getting to this point of having this final interim set of standards, which is really to make sure that we have done that job. I think that's probably, to my mind, the reason for any difference between those two versions of the standards.

CHAIR: This is my final question. You said, assuming this legislation passes, that, within the two years, you would consult with the minister about what ongoing consultations need to occur. The evidence before the committee today from both industry and environmental groups is that the consultation that occurred within the framework of Professor Samuel's work was constructive, collaborative and achieved—the estimate varied—between 80 per cent and one even went up to 90 per cent alignment and agreement across the range of standards that would be required. Certainly, the strong impression I've had is that what industry and environmental groups would be seeking would be a continuation of that goodwill, good faith, collaborative engagement. Possibly the only addition would be the inclusion of states to have a voice in that. Is that what the department is envisaging? It strikes me that the stakeholders who've given us evidence have found that productive, and that would be their expectation as to the pathway to achieving outcome based national standards.

Mr Tregurtha : On that issue, I guess the first thing is: we haven't prepared that advice for the minister's office yet, so I can't tell you what our advice is in relation to a consultation pathway in the manner in which you've described, but I guess it's generally our practice that we would try to give the minister the best possible advice in relation to a consultation process. Clearly the department is aware of the process Professor Samuel ran. We are also very clearly aware, including through direct conversations we've had with a number of those stakeholders, of stakeholder perspectives on that consultation and the fact that they felt like it was productive and being undertaken well across a range of different interests that were represented in that consultation. That is, absolutely, something the department would reflect back to the minister in relation to what may happen in the future. Ultimately, of course, the consultation process is a matter for the minister and government.

Mr Manning : I note that in the minister's second reading speech—I'm just looking at it here—she does indicate an intention to work through the full details of the review in consultation with business, industry, environment groups, farmers, Indigenous Australians and states and territories. I think that's consistent with where we're at.

Senator «HANSON» - «YOUNG» : I want to go to one of the criticisms from witnesses today about this legislation and that the standards that you've put forward—the cherrypicking of some of Professor Samuel's recommendations from his report. You haven't done anything around the issues in relation to offsets. Professor Samuel was very critical about the current process. We heard today that there was meant to be a review, originally within two years, and then within another five years. They haven't happened. I must say it sounds a bit concerning, considering we're now being promised a two-year and then a five-year review into these regulations that are being put forward. I want to know what the department is doing to clean up the offset process.

Mr Manning : In so far as a response to the Samuel review, I think we've covered the ground that the government is committed to working through that. That will include, of course, the offsets provisions. The other part that my mind goes to is our colleagues in the Environment Approvals division. They are not with us today, but I think they are doing some work in relation to offsets. I'm probably not well positioned to speak specifically on what might be being looked at there at the moment.

Senator «HANSON» - «YOUNG» : Are you aware of the criticisms in recent weeks of corruption in the offset process?

Mr Manning : No, I'm—

Mr Tregurtha : I'm broadly aware of that, Senator, but only in so far as, I think, that ranges across a range of jurisdictions.

Senator «HANSON» - «YOUNG» : Yes, including New South Wales in particular. You would be aware, then, that there are serious questions being asked in relation to offsets with the Western Sydney Airport?

Mr Tregurtha : I'm aware of that.

Senator «HANSON» - «YOUNG» : Have you had to brief the minister about this matter at all?

Mr Tregurtha : As Mr Manning has pointed out, our colleagues in our environmental assessments and approvals area hold responsibility for individual project approvals. They're not with us today, but I'm very happy to take on notice that particular question.

Senator «HANSON» - «YOUNG» : The New South Wales airport offset credits were purchased by the federal infrastructure department. I understand that's a different department. However, it is the environment department that has responsibility for the sign-off of the offset planned for the airport, isn't it?

Mr Tregurtha : Again, I'd have to turn my mind specifically to the particular approval process as to whether or not the minister or the department, under delegation, undertook that particular approval decision—and, indeed, to the conditions attached to that approval decision—in order to be accurate in relation to how we reflected the outcome of that decision. As Mr Manning has just reminded me, the other potentially relevant part of the EPBC Act here is in relation to advice we provide to other agencies under section 160, although from memory I do think that the Western Sydney airport fell outside that particular provision. That would be something that I'd need to take on notice.

Senator «HANSON» - «YOUNG» : Could you take it on notice? I'd really like to know who signed off on the offset plan—the title of the person—whether it went to a minister, which minister it went to and when that happened.

Mr Tregurtha : We're happy to take that on notice, but it depends on whether we're talking about the approval itself. We have a post-approval function within the department where, once we have made an approval decision, there's a set of conditions, some of which require post-approval action. Mr Manning used to run that particular part of the department. In terms of the specific plan that you're referring to, I'd like to take that on notice to ensure that we provide you with accurate advice.

Senator «HANSON» - «YOUNG» : Thank you. Just so I'm clear, sometimes an approval for an action can be done, and then, subsequently, someone else in the department is given the job to work out what that plan looks like and sign off on that.

Mr Tregurtha : That's right. What may happen, and what frequently happens, is that the approval for the undertaking is provided with a condition set that contains an obligation. I'll give you an example: you may need a threatened species management plan prior to work commencing in a certain area or work of a certain type to clear habitat. So, whilst the general approval for the project has been given, you can't commence a particular clearing operation until a protected species protection plan is in place. And sometimes—not all the time, but sometimes—the department, given a range of factors around the severity of the action and the size of the action, may require that plan to be approved by the department in order to ensure that it contains, if you like, the right obligations and a sufficient set of information.

CHAIR: Senator «Hanson» - «Young» , I've got Senator Urquhart on the phone, who also wants to ask questions. Can you make this your last question, please?

Senator «HANSON» - «YOUNG» : I might need two, if that's okay. Let's try and keep the answers snappy, and we can get through them. Mr Manning, if this is part of the department that you used to work in, perhaps you're better placed: are you aware of whether the department has ever conducted an assessment of state approval regimes as to whether they effectively manage conflict of interest?

Mr Manning : Sorry—was the question whether the department conducted a review of the state processes for conflict of interest?

Senator «HANSON» - «YOUNG» : Sorry. I'll rephrase it. I would like to know what the process is for ensuring there are no conflicts of interests when dealing with offsets and offset plans.

Mr Manning : I imagine it would be part of the process of working through. As Mr Tregurtha was saying, in the post-approval space, when there is a requirement for a management plan—it might be an offset or an offset management plan—the department does its due diligence in relation to the contents of that. It's normally against the conditions of approval. So the primary point is the—

Senator «HANSON» - «YOUNG» : Has there been any review, or is there a health check to know that there are no conflicts of interest in relation to offsets?

Mr Tregurtha : I might be able to help. I've got two things quickly on that. The first is that, where a state undertakes an offset, I would suggest that the answer to your question is that we don't review whether or not there is a conflict of interest within the state government in relation to the state's obligation for a state offset. However, one modifier to that will be that, where we are reviewing a state's processes to ensure that they are appropriate for a bilateral agreement, we look at whether or not that state process meets the obligations set out under the act. That's the first thing. In relation to the Commonwealth's provision of offsets, I'd like to take that on notice. I'm aware that there was an ANAO report released that talked about conflicts of interest. The department made a response to that ANAO review, but, in order to give you a proper answer, I'd like to take that one on notice.

CHAIR: Senator Urquhart, you have the call.

Senator URQUHART: I know that Mr Tregurtha and Mr Manning are there. I'm going to make these questions open, and whoever is the appropriate person to answer them can follow them through. I've got some questions around the assurance commissioner. In section 501B of the bill that's proposed, it provides that there is an Environment Assurance Commissioner. The functions of that commissioner are set out in the proposed section 501C. Can you tell me what powers the commissioner has and which provisions confer those powers?

Mr Manning : One of the foremost functions and powers of the commissioner is in relation to monitoring and auditing the operation of bilaterals and the Commonwealth process for making assessment and approval decisions. I think that's probably the lead one. The commissioner also has the power to request information, to request a person to provide information or documents and to request a person to answer questions in relation to something that the commissioner may be looking at or delving into. There is then a process set out in the bill in which the minister can make requests of the Environmental Assurance Commissioner. The commissioner then has a power to agree or refuse to agree to a written request from the minister. That's another power that is conferred on the commissioner. I think they're the main ones. I'm just looking to see if I've missed anything.

Ms Flanigan : To add to what Mr Manning said, the commissioner also has the power to disclose information or provide documents to various persons in the course of performing the commissioner's functions. That's under 501U.

Senator URQUHART: Can you take me to the provisions that provide those powers? What are they?

Ms Flanigan : The power to request a person to provide information is in section 501C(4). The power for the commissioner to disclose information or provide documents to other persons is in section 501U. As Mr Manning was saying, the functions of the commissioner are set out in 501C.

Senator URQUHART: Yes, they're the functions, but I'm interested in the power. The question is: is there an intention to create a provision that would then confer powers on the commissioner? You're saying there are two there, but is there an intention to create that provision?

Ms Flanigan : For the functions of the environment commissioner, I refer you to subsection 501C(1)(f), which allows the regulations to prescribe other functions of the commissioner, and subsection 501C(1)(g), which also allows the commissioner to do anything incidental or conducive to the performance of the commissioner's powers. That's quite a broad ranging section.

Senator URQUHART: Where would I find the powers? Where would I find them in this bill?

Mr Tregurtha : From our perspective, the powers the commissioner has to undertake the role are characterised in this bill as the functions. The commissioner is empowered to undertake the functions through the operation of the bill.

Senator URQUHART: Right, but functions and powers are different things. So, I guess my question then is: is there any intention to create a provision that would confer powers on the commissioner?

Mr Tregurtha : Not in the current bill—the current bill—

Senator URQUHART: No, I understand that. I asked whether there is any intention to create that provision.

Mr Tregurtha : No.

Senator URQUHART: Why not?

Mr Tregurtha : It's our position that the drafting of the legislation, as it is, both establishes the environment assurance commissioner and sets out a range of functions that, by the nature of the bill, that position is empowered to undertake and perform.

Senator URQUHART: So, in effect—I mean, you can't really have a tough cop on the beat without any powers, can you?

Mr Tregurtha : Well, again, I'd say that the commissioner is empowered to undertake the functions as set out in the bill.

Senator URQUHART: Yes, the functions, not the powers. We've already established that. And there's no intention to create a provision that would concern powers. I want to raise another concern that stakeholders have raised, and that is that the bill requires the commissioner to seek the minister's approval for his or her work plans. Is that correct?

Mr Manning : The commissioner will establish their own work program. That's set out in the bill—that the commissioner will independently do that, free from direction from government. The minister may make requests of the commissioner in relation to what may be included in that work program. But, as I said, one of the functions, or powers—however you want to characterise it—that the bill gives the commissioner is the capacity to either look at those and then agree to them and take them onboard as part of that work program or not agree to them and say, 'No, I've got higher priorities', or other things.

Senator URQUHART: Can, then, the minister make amendments to that work plan? If the minister didn't like something that was in the work plan, could she then technically amend the plan to exclude that item?

Mr Manning : No.

Mr Tregurtha : The minister can propose changes and the environment assurance commissioner must finalise the plan after receiving a response from the minister, which may propose changes. But the only obligation as set out under the functions—or powers, if you like—of the commissioner is that they must have regard to the changes that the minister requests and then finalise the plan. There's no obligation on the commissioner to make the changes that the minister suggested.

Senator URQUHART: You say 'have regard to'. What does that mean?

Mr Tregurtha : The term 'have regard to' is a term used in the EPBC Act at the moment.

Senator URQUHART: Yes, I understand that, but in reality, what does that actually mean?

Mr Tregurtha : It means that the Environmental Assurance Commissioner would have to receive any advice from the minister and turn their mind to that advice—so, consider it appropriately—and then determine what action to take in regard to that advice, in exactly the same way that having regard to conservation advice in another part of the act operates.

Senator URQUHART: So, they could ignore the comment from the minister?

Mr Tregurtha : I don't think they could ignore them, because there's an obligation on the commissioner to have regard to those comments. It wouldn't be sufficient for the commissioner to ignore any changes put forward by the minister. They would certainly be obliged to turn their mind to them, but what action they took as a result of that would be up to the commissioner.

Senator URQUHART: So, in effect, the minister could actually amend work plans, but then the commissioner would have to have regard to that?

Mr Tregurtha : No, the minister can't amend the work plan. The minister can suggest changes to the work plan.

Senator URQUHART: Okay. The explanatory memorandum says that the EAC would cost $9 million over the forward estimates. Is that funding coming from within existing departmental funding?

Mr Tregurtha : That's an estimate in the bill. I'm looking at my colleagues, but at the moment I think from our perspective it would be departmental funding in terms of its nature. Where the funding is provisioned from would be a matter for the government.

Senator URQUHART: So it may not exist in departmental funding.

Mr Tregurtha : It's true that may not be, but it may be. Again, that's a matter for the government.

Senator URQUHART: So you don't know where that's coming from.

Mr Tregurtha : As I said earlier, that funding would be departmental rather than administered funding of government, because it's being provided for an operation that would be housed within the department. It would be departmental funding in nature. Whether that's drawn from existing or new funding is a matter for government.

CHAIR: Senator Urquhart, we are over the allocated time for the department. Do you have any more questions?

Senator URQUHART: I've got about four or five more. I can quickly go through some which should be able to be answered quite quickly.

CHAIR: Could you go through with quick questions and quick answers? Then Senator «Hanson» - «Young» has two more to put on notice.

Senator URQUHART: I will probably have some more to put on notice after this. Would staff currently in the department relocate to the office of the assurance commissioner?

Mr Manning : I imagine that, once the commissioner is established in the role, the department will look to find staff to support the commissioner in their role, possibly from within the department, possibly by an external process. We haven't worked that through as yet.

Senator URQUHART: Would that see a reduction in the current departmental staffing?

Mr Manning : I don't think there's any intention to reduce current departmental staffing to make that position happen, but we will work through that when we get to establishing the commissioner.

Senator URQUHART: How would the commissioner's reports be published, and will they be tabled in parliament?

Ms Flanigan : There are two aspects there: the commissioner's audit reports will be published on the internet, but the commissioner is also required to prepare an annual report to the minister, which is required to be tabled in parliament.

Senator URQUHART: But not the report.

Ms Flanigan : Sorry; I'm not sure what report you're referring to.

Senator URQUHART: The reports of the commissioner. I presume they have an annual report.

Ms Flanigan : Yes, the annual reports of the commissioner are provided to the minister and tabled in parliament.

Senator URQUHART: Would the commissioner be available to parliamentary committees on environmental issues. For instance, would they come to estimates?

Mr Tregurtha : We haven't turned our mind to that specific question, but it is a statutory role. Other statutory roles do appear before committees, but again it's something I think would be a matter for the government, and we'd need to take that on notice to give a more complete answer.

Senator URQUHART: Okay. I've got a couple more questions that I will put on notice.

CHAIR: Senator «Hanson» - «Young» , you have two questions to put on notice?

Senator «HANSON» - «YOUNG» : I wanted to come back to this issue of the Western Sydney airport and the report of the $40 million that has allegedly been, effectively, corrupted. I want to know whether the department is investigating this. Have you launched an investigation and has it been discussed with the New South Wales government or your own minister?

Mr Tregurtha : We'll need to take those on notice.

Senator «HANSON» - «YOUNG» : Of course. Thank you.

CHAIR: That concludes today's proceedings of the committee's inquiry into the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021. You have agreed to take a number of things on notice. If you could have those back to the committee by 19 May, that will facilitate our writing of a report. I thank all witnesses who have given evidence to the committee. I thank the secretariat, Broadcasting and Hansard.

Committee adjourned at 16:40