Bill home page
Download Word
Download PDF
2019-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
Federal Environment Watchdog Bill 2021
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Hanson-Young)
FEDERAL ENVIRONMENT WATCHDOG BILL 2021
OUTLINE
Surveillance, compliance and enforcement under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is ineffective. There has been limited enforcement of the Act over the 20 years it has been in effect, and the transparency of what has been done is also limited. These are the declarations made in the independent review of the EPBC Act, by Professor Graeme Samuel AC . His findings follow years of reports and critiques outlining these failings. Professor Samuel recommended that an independent regulator responsible for monitoring, compliance, enforcement and assurance to be a strong cop on the beat be established.
The EPA will be led by a Chief Executive Officer (CEO) appointed by the Governor-General and accountable to Parliament. All senior staff will be independently appointed for fixed terms and subject to strict conflict-of-interest rules. The CEO is not subject to any direction from the Minister. The EPA will be supported by a newly established Joint Committee on the Environment and Energy, which will provide oversight, advise on staff appointments, and provide advice on the EPA’s budget. Within the EPA an Office of Monitoring, Compliance, Enforcement and Assurance (OMCEA) will be set up, which will assist the CEO with their functions relating to compliance with, and enforcing, Commonwealth environmental laws.
As Professor Samuel said, ‘Monitoring, compliance, enforcement and assurance is core to delivering the intent of the EPBC Act. There is little point in putting rules in place if they will not be monitored and if failure to meet them does not result in appropriate compliance and enforcement action. Strong monitoring, compliance, enforcement and assurance is essential to protecting the environment and building trust that breaches of the EPBC Act will be fairly, proactively and transparently addressed. It is also necessary to protect the integrity of most of the regulated community, who spend time and money to comply with the law. Those that do not play by the rules should face the consequences.’
NOTES ON CLAUSES
Clause 1: Short Title
1. This clause is a formal provision and specifies the short title of the bill as the Federal Environment Watchdog Bill 2021.
Clause 2:
Commencement
2. This clause provides for commencement of the Act six months after receiving Royal Assent, but only if appropriation is passed and administered for payment to the Commonwealth Environment Protection Authority. If appropriation is not passed the Act does not commence.
Clause 3: Schedules
3. This clause establishes that, as the intent of the bill is to be realised through amendments to another Act, the Schedules of this bill will amend that Act accordingly.
Schedule 1 - Amendments
Part 1— Commonwealth Environment Protection Authority
Environment Protection and Biodiversity Conservation Act 1999
Item 1—Before Division 1 of Part 19
Division 1A—Commonwealth Environment Protection Authority
Subdivision A —Establishment
4. This division establishes the Commonwealth Environment Protection Authority (EPA). The EPA consists of the CEO, Deputy CEO, staff of the EPA and consultants. The function of the EPA is to assist the CEO in his or her functions and the CEO has control of the operations of the EPA. The EPA is a listed entity and the CEO is the accountable authority of the EPA for the purposes of the Public Governance, Performance and Accountability Act 2013 .
Subdivision B —Chief Executive Officer
5. Section
501B and 501C establish the role of the CEO of the EPA. The
CEO’s functions will be exercising the routine administrative
environmental regulatory functions of the Commonwealth as well as
monitoring compliance with, and enforcing, the EPBC Act. In
addition, the CEO has functions relating to communities, including
education, uptake of community involvement in administration of
Commonwealth environmental laws, and increasing public confidence
in those laws. The CEO may also make recommendations to the
Minister as to regulations that should be made in order to advance
the purposes of the Act. The CEO must act effectively, efficiently,
equitably and transparently.
6. The CEO is solely responsible for performing his or her functions and not subject to direction by the Minister. This ensures the EPA is independent.
Section 501D sets out the process for appointment of the CEO. The CEO is to be appointed by the Governor-General for a period of 5 years, and the appointment must be approved by the Parliamentary Joint Committee on Environment and Energy. The CEO must have knowledge of, or experience in, any of the following: conservation of biodiversity; ecologically sustainable development; heritage; Indigenous affairs; law; law enforcement or natural resource management. The first appointed CEO must have knowledge of or experience in law enforcement.
7. In view of the significance of Indigenous knowledge and heritage in Australia, the bill provides that at least the CEO or one of the Deputy CEOs must be an Aboriginal or Torres Strait Islander person. To avoid actual or perceived corruption, biased decision-making, and/or conflicts of interest, a person cannot hold office as a CEO if they have held Federal, State or Territory political office, been a registered political campaigner, registered lobbyist, or held a senior position in an industry association or environmental organisation in the five years preceding their date of appointment.
8. The CEO must disclose to the Minister in writing material personal interests that relate to the affairs of the EPA.
9. Section 501E allows the first appointed Deputy CEO to act as the CEO during a vacancy or period of absence of the CEO. Section 501F states that the CEO must not engage in paid work outside the duties of the CEO’s office without the Minister’s approval. New sections 501G to 501L set out the remuneration, leave, resignation and termination terms of the CEO position.
10. The CEO may delegate their functions and powers per section 501M.
Subdivision C—Deputy Chief Executive Officers
11. Section 501N establishes four Deputy CEO positions, which are to be appointed by the Governor-General for a period of 5 years, and the appointment must be approved by the Parliamentary Joint Committee on Environment and Energy. The Deputy CEOs must qualify for the appointment because of their knowledge of, or experience in, any of the following: conservation of biodiversity; ecologically sustainable development; heritage; Indigenous affairs; law; law enforcement or natural resource management. At least one of the first appointed Deputy CEOs must have knowledge of or experience in law enforcement. The same eligibility requirements regarding previously held positions apply as to the CEO. At least one of the Deputy CEOs must be an Aboriginal or Torres Strait Islander person if the CEO is not.
12. Section 501P allows the CEO to appoint employees to act as Deputy CEO in times of vacancy or absence. Section 501Q states that a Deputy CEO must not engage in paid work outside the duties of the CEO’s office without the Minister’s approval. Sections 501R - 501U set out the remuneration, leave, resignation and termination terms of the CEO position. Section 501V requires Deputy CEOs to disclose in writing all interests, pecuniary or otherwise, that could conflict with the proper performance of their functions. Sections 501W and 501X establish the terms of appointment, and allow delegation of Deputy CEO functions or powers.
Subdivision D—Monitoring, compliance, enforcement and assurance
13. This section establishes an Office of Monitoring, Compliance, Enforcement and Assurance (OMCEA) within the EPA. Section 501Y states that the function of the OMCEA is to assist the EPA with monitoring compliance with, and enforcing, Commonwealth environmental laws.
14. Per section 501Z, in establishing the EPA’s monitoring, compliance, enforcement and assurance systems, the CEO must consult the Auditor-General. The Auditor-General will also conduct performance audits of these systems three years after the bill commences, and after no more than five years subsequently.
15. Before the CEO grants any approval, permit, licence or other permission subject to conditions under environmental law, or imposes conditions on such an approval, the CEO must develop a plan to monitor compliance with the conditions attached to the approval.
Subdivision E—Staff and consultants
16. Section 501ZB establishes the EPA as a Statutory Authority of which the CEO is the Head. The CEO may engage consultants to assist in the performance of the CEO’s functions.
Subdivision F — Miscellaneous
17. Section 501ZD allows the CEO to charge fees for the performance of the EPA’s functions, including undertaking of routine environmental regulatory functions (except where such functions are initiated by the Authority, e.g. enforcement proceedings).
18. Section 501ZE requires certain details to be included in the EPA annual report, including details about the action the CEO took during the year to establish and maintain the EPA’s monitoring, compliance, enforcement and assurance systems, such as advice and audits from the Auditor-General. Per section 501ZF vacancies in the position of CEO or Deputy CEO should be filled as soon as practicable.
Division 1B—Parliamentary Joint Committee on Environment and Energy
19. This division establishes the Parliamentary Joint Committee on Environment and Energy.
20. Section 501ZG ensures that a joint committee consisting of 12 members drawn equally from each the House of Representatives and the Senate will be formed, consisting of five Government and five Opposition members, and two other members. These members cannot be presiding officers. The co-Chairs will be appointed by the Prime Minister and the Opposition. This section also deals with member resignation and vacancies. Per section 501ZH the powers of the committee will be determined by resolution of the Parliament.
21. Section 501ZJ establishes the duties of the joint committee, including monitoring the EPA CEO, reporting to the Parliament on the CEO’s function, examining EPA annual reports, conducting inquiries, considering appointments to the EPA and making recommendations to Parliament. It may also request EPA draft budget estimates.
22. Additionally, the joint committee will regularly review and make a recommendation to Parliament about whether routine environmental regulatory functions under other Commonwealth environment legislation should be made the responsibility of the EPA per section 501ZL.
Item 2—Section 528
23. This section inserts a number of new definitions into the Act including a wide definition of Commonwealth environmental law.
Part 2 — Consequential Amendments
Environment Protection and Biodiversity Conservation Act 1999
Item 3—At the end of section 28
24. The Minister must consult the CEO before making a declaration that an activity significantly affecting the environment by the Commonwealth does not require approval.
Item
4—At the end of Division 1 of Part 4
25. New section 31A gives the CEO call-in powers to monitor compliance and enforcement notwithstanding that that powers of assessment or approval may have been referred to a State or Territory or other entity by a Bilateral Agreement under the EPBC Act.
Item 5 to Item 12
26. These items provide that the Minister must consult with the CEO prior to: making, amending or revoking a declaration that actions do not require approval under Part 9; making a declaration in relation to a conservation agreement; and entering into, amending, suspending or cancelling a bilateral agreement.
Item 13 to Item 87
27. These items provide for the CEO to undertake environmental assessments and approvals under Chapter 4.
28. Under Part 7, the CEO will take over from the Minister in all decision-making processes under this section, including deciding if a referred action is a controlled action, requesting referrals of proposals, deciding if an action needs approval, giving reasons for decisions, reconsideration of decisions and inviting public comment.
29. Under Part 8, the CEO will take over from the Minister in assessment of controlled actions. This includes deciding on an assessment approach, making an assessment, referring to a public environment report and preparing guidelines for the report. In addition the CEO will assume powers relating to environmental impact statements.
Item 88 to Item 107
30. These items provide for the CEO to appoint commissioners to carry out inquiries, set the terms of reference and commissioners terms, and report on an inquiry. An additional prerequisite has been added for appointment of commissioners, requiring a commissioner to have knowledge of, or experience in, any of the following: conservation of biodiversity; ecologically sustainable development; heritage; Indigenous affairs; law; or natural resource management.
31. New section 110A gives the CEO power to provide financial assistance for the purposes of helping community representatives to seek independent expertise to prepare evidence and present submissions to an inquiry under this Division. New section 110B allows the CEO to make a submission to an inquiry under this Division.
Item 108 to Item 134
32. Under Part 9, the CEO will decide whether or not to approve a controlled action. The CEO will have the power to invite comments on approval, request further information, grant approval, impose conditional approval, vary, suspend, transfer or revoke approval.
33. These items insert new section 131B which gives the CEO the power to conduct an inquiry into any of the assertions made in the application, an environmental impact statement or any other evidence given in connection with the application. The CEO will have the powers of a commissioner conducting an inquiry when conducting an inquiry into these matters.
Item 135—At the end of Part 9
34. This item inserts new section 145F which gives the CEO additional powers in exceptional circumstances. If an approval has been granted, the CEO will retain the power to attach conditions to an approval if the applicant intentionally misrepresented the impact of the action, the action constitutes a significant threat to the environment, and the condition will likely mitigate that threat. Further, the CEO may revoke or suspend an approval if the applicant intentionally misrepresented the impact of the action, the action constitutes a significant threat to the environment, and conditions will not sufficiently mitigate that threat.
Item 136 to Item 142
35. These items provide that the CEO must be consulted before the Minister agrees to a strategic assessment; however the CEO will take over from the Minister in approving the taking of actions in accordance with an endorsed policy, plan or program.
Item 143
to Item 145
36. Part 11 deals with miscellaneous rules about assessments and approvals. These items transfer the power to the CEO to deal with variations of proposals and changing the person proposing to take the action. The Minister must consult the CEO when granting an exemption under this Chapter.
Item 146 to 160
37. These items stipulate that a Commonwealth agency or employee must consider advice from the CEO before authorising certain actions with a significant impact on the environment (e.g. providing foreign aid, airport major development plans), and the CEO will assess that action.
Item 161 to Item 169
38. Subdivision C sets out the process for the CEO to enter into an agreement with the Minister of a State or Territory in certain circumstances.
Item 170 to 176
39. Regarding the publication of information relating to assessments, this requirement will pass from the Secretary to the CEO. Other information publishing requirements will pass to the CEO. Additionally, biodiversity conservation, heritage, and environmental protection data provided by a designated proponent under Part 8 will not be designated commercial-in-confidence. New section 170BB allows the CEO to require biodiversity conservation, heritage, and environmental protection data provided by a designated proponent to be published online.
40. Sections 170C and 170CA deal with withdrawal of proposals to take actions and fees, and in both cases the CEO takes over the determination and decision making powers of the Minister.
Item 177—Division 1 of Part 12
41. The CEO will retain all powers previously afforded to the Minister under this section with regard to identifying and monitoring biodiversity.
Item 178 to Item 185
42. These items provide that the CEO will take over from the Minister and receive applications for permits, exercise powers with respect to permits and issue permits relating to listed threatened species and communities, migratory species, whales and other cetaceans and listed marine species. These items will also require the Minister to consult with the CEO prior to accrediting plans, regimes of policies relating to these groups.
Item 186 to Item 191
43. These items give the CEO power to administer the permit system as it relates to CITES species and specimens (listed under the Convention on International Trade in Endangered Species), exports of regulated native specimens, imports of regulated live specimens and marking of specimens. This includes receiving applications, issuing permits, establishing and maintaining registers and exercising powers regarding the miscellaneous matters relating to permits.
Item 192 —After subsection 306A(1)
44. The Minister must consult with the CEO before entering into a conservation agreement.
Item 193
and Item 194
45. These items provide that the CEO must take account of the precautionary principle in making decisions.
Item 195 to Item 203
46. These items provide that the CEO may appoint employees of the EPA, wardens, rangers and inspectors under these items.
Item 204 to Item 218
47. These items deal with miscellaneous provisions about searches, entry to premises, warrants and other matters. The CEO will have the same powers to take actions as the Secretary, for example to dispose of, retain or release seized items or goods.
Item 219 to Item 221
48. These items provide that the CEO will have the power currently afforded to the Minister to direct environmental audits.
Item 222 to Item 240
49. These items provide that the CEO will have the power currently afforded to the Minister to apply for injunctions and remediation orders. The CEO will take over the Minister’s power to make, vary or revoke remediation determinations, including duties relating to notification and reconsideration. These items also give the CEO power to apply for pecuniary penalties through the Federal Court, and the ability to require a person to produce information to or appear before the EPA.
Item 241 to Item 252
50. These items extend the duty not to provide false and misleading information to information shared under Part 17, include EPA staff as part of the regime, and give the CEO the ability to publicise contraventions of the Act. The CEO, a Deputy CEO or a member of the staff of the EPA are also included under immunity provisions.
Item 253—At the end of Part 17
Division 23 - Regulatory Powers
51. Sections 498C and 498D stipulate that the EPBC Act is subject to monitoring under Part 2 of the Regulatory Powers Act , which creates a framework for monitoring whether this Act has been complied with. It includes powers of investigation, entry and inspection. Additionally, certain EPA officers are granted a right to use necessary and reasonable force in executing a warrant. It is envisioned this power would be used in the event of e.g. a locked gate to access premises.
52. Sections 498E, 498F and 498G give certain EPA officers access to remedies under the Regulatory Powers Act . Section 498H extends powers to external Territories. Section 498J and 498K are delegation and assistance provisions for the purposes of powers assumed under the Regulatory Powers Act . Section 498L ensure that the CEO’s powers under other acts are not limited by the preceding sections.
Division 24 - Stop Work Orders
53. Section 498M gives the CEO power to issue a stop work order if he or she reasonably believes a person is contravening the EPBC Act or is likely to: the conduct in question constitutes a significant threat to the environment; making such an order is necessary to deal with the threat; and the conduct has not previously been subject to a stop work order. The order must be given to the person in writing and there are penalties for contravention.
Division 25 - Additional monitoring and investigation powers
54. These sections outline powers available to inspectors for compliance purposes, being the purpose of determining whether the Act, or a condition is being complied with. Section 498P gives an inspector power to enter premises without force if he or she reasonably believes that an activity with conditional approval is being carried out on those premises, or there are relevant compliance records on the premises. Section 498Q gives the inspector powers to inspect work on the premises, interview any person, request information about document custody, request production and make copies of documents or records, and take samples of goods or substances. The inspector may be assisted as reasonably necessary.
55. Section 298S sets up civil penalties for failing to comply with an inspectors request for name and address, and section 498T sets up civil penalties for failing to produce a record or document when served with a notice to do so by the inspector. Sections 498U does not excuse a person from giving information on the grounds that it might self-incriminate, however records or documents they produce cannot be used against the individual in general criminal proceedings. Sections 498V, 498W, 498X and 498Y concern inadmissibility of evidence in criminal proceedings, uphold legal professional privilege, and give inspectors or other staff the ability to inspect or make copies of records or documents.
Division 26- Other powers
56. If in the process of taking samples or extracts property is damaged due to insufficient care in taking the sample, reasonable compensation will be payable to the owner.
57. Section 498A gives inspectors the power to enter or cross any land or waters with the occupier’s consent, or in accordance with warrant. An inspector is an authorised officer for the purposes of Chapter 7 of the Criminal Code.
Division 27 - Post-approval audits
58. If an approval is granted under the Act, the CEO may carry out a post-approval audit of the process of granting the approval, including the accuracy of the environmental impact statements and other evidence provided as part of that process. In doing so the CEO may request specific information. A civil penalty applies to failure to produce this information.
Item 254—Section 499
59. The CEO will have the power to remedy environmental damage under this section.
Item 255 to
Item 263
60. These items give the CEO or EPA employees the ability to reconsider a fee; relate to actions where fees are payable; allow the CEO to consider application of the EPBC Act to a class of persons in a written statement; and insert new definitions into the general list. Item 260 additionally allows regulations to be made for applying, adopting or incorporating matters contained in an industry standard or code of practice. Note relation to section 501C which allows the CEO to recommend regulations.
Item 264 to Item 276
61. These items provide for the CEO to act relating to detention of suspected foreign offenders in the same terms and on the same grounds as the Minister and the Secretary.
Water Act 2007
Item
277—Paragraph 137(c)
62. This item specifies that the CEO of the EPA is the appropriate enforcement officer for contraventions under Part 7 of the Water Act 2007 .
Part 3— Transitional Provisions
Item
278—Transitional rules
63. This item provides that the Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Act.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Federal Environment Watchdog Bill 2021
This bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .
Overview of the bill
The Federal Environment Watchdog Bill 2021 establishes the Commonwealth Environment Protection Authority (EPA). The EPA will effectively, efficiently, equitably, and transparently exercise the routine administrative functions currently held by the Commonwealth concerning the EPBC Act as well as any other federal legislation relating to the environment. These functions include receiving applications or referrals for approval to carry out regulated activities, assessing the impact on the environment of proposed regulated activities, granting or withholding approvals (including licences and permits) for the undertaking of regulated activities, and monitoring, compliance, enforcement, and assurance functions. It will also promote the informed involvement of the community in the administration of these laws.
Human rights implications
This bill does not engage any of the applicable rights or freedoms.
Conclusion
This bill is compatible with human rights as it does not raise any human rights issues.
Senator Sarah Hanson-Young