Title Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021
Database Explanatory Memoranda
Date 27-04-2021 04:08 PM
Source House of Reps
System Id legislation/ems/r6683_ems_61a29814-c876-4534-a41d-d91e7307b7d2


Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021

2019-2020-2021

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (STANDARDS AND ASSURANCE) BILL 2021

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of the Minister for the Environment, the Hon. Sussan Ley MP)

 


ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (STANDARDS AND ASSURANCE) BILL 2021

GENERAL OUTLINE

The Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 will ensure that approval bilateral agreements with states and territories are underpinned by national environmental standards, supported by strong assurance and oversight mechanisms. 

The Independent Review of the Environment Protection and Biodiversity Conservation
Act 1999
identified a need for legally enforceable standards to underpin the effective operation of the Act. National Environmental Standards will set the requirements for decision-making to deliveroutcomes for the environment and heritage, and will ensure that Commonwealth requirements and obligations for environmental approval and other decisions are upheld, regardless of which jurisdiction makes an approval decision.  

The Review also identified the need for strong independent oversight of environmental assessment and approval systems, including accredited state and territory systems, to provide confidence that the outcomes of the National Environmental Standards are being achieved and the requirements of the EPBC Act are being upheld. 

The Bill will:

·         establish a framework for the making, varying, revoking and application of National Environmental Standards. The application of the Standards to bilateral agreements with the states and territories will provide confidence that the requirements of the Act are being met when they conduct project assessments and make approval decisions under accredited processes; and

·         establish an Environment Assurance Commissioner to undertake transparent monitoring or auditing (or both) of the operation of bilateral agreements with the states and territories and Commonwealth processes under the Act for making and enforcing approval decisions.

FINANCIAL IMPACT STATEMENT

The Bill establishes a framework for the making, varying, revoking and application of National Environmental Standards. These measures do not have any financial impacts. The Bill also establishes the Environment Assurance Commissioner, which is estimated to cost the Commonwealth no more than $9 million over the next four years. Final costs over this timeframe and beyond depend on the timing and scope of operational approval bilateral agreements with states and territories, which are currently being negotiated.

REGULATION IMPACT STATEMENT

The Interim Report of the Independent Review of the Act identified a need for legally enforceable standards to underpin the effective operation of the Act. The Interim Report undertook a process and analysis equivalent to a Regulation Impact Statement. The Interim Report can be found at www.epbcactreview.environment.gov.au.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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.

The full statement of compatibility with human rights is attached to this Explanatory Memorandum.

 

 


ACRONYMS, ABBREVIATIONS AND COMMONLY USED TERMS

The following abbreviations and terms are used in this Explanatory Memorandum:

 

 

Act

Environment Protection and Biodiversity Conservation Act 1999

AI Act

Acts Interpretation Act 1901

Amendment Act

Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Act 2021

approval bilateral agreement

means a bilateral agreement that includes a declaration described in subsection 46(1) of the Act

assessment bilateral agreement

means a bilateral agreement that includes a declaration described in subsection 47(1) of the Act

Bill

Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021

Commissioner

Environment Assurance Commissioner

Department

means the Department responsible for the administration of the Act, currently the Department of Agriculture, Water and the Environment

Legislation Act

Legislation Act 2003

Minister

means the Minister responsible for the administration of the Act, currently the Minister for the Environment

PGPA Act

Public Governance, Performance and Accountability Act 2013

Regulations

Environment Protection and Biodiversity Conservation Regulations 2000


NOTES ON AMENDMENTS

Preliminary

Clause 1 – Short Title

Clause1 provides for the short title of the Amendment Act to be the Environment Protectionand Biodiversity ConservationAmendment (Standards and Assurance) Act 2021.

Clause 2 – Commencement

Clause 2 provides for the commencement of each provision in the Amendment Act, as set out in the table.

Item 1 in the table provides that sections 1 to 3, and anything in the Amendment Act not covered elsewhere by this table will commence on the day the Amendment Act receives the Royal Assent. Item 2 in the table provides that Part 1 of Schedule 1 will commence the day after the Amendment Act receives the Royal Assent. Item 3 of the table provides that Part 2 of Schedule 1 will commence on the later of:

(a)    immediately after the commencement of the provisions covered by table at Item 2; and

(b)   immediately after the commencement of Item 2 of Schedule 5 to the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Act 2021.

However the provisions of Part 2 of Schedule 1 will not commence at all if the event mentioned in paragraph (b) does not occur.

Item 4 of the table provides that Schedule 2 will commence on the day after the Amendment Act receives the Royal Assent.

Subclause 2(2) provides that any information in column 3 of the table is not part of the Act. It also clarifies that information may be inserted into column 3 of the table, or information in it may be edited, in any published version of the Act.

Clause 3 – Schedule

Clause3 provides that legislation that is specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule has effect according to its terms. This is a technical provision to give operational effect to the amendments contained in the Schedules.


 

SCHEDULE 1 – NATIONAL ENVIRONMENTAL STANDARDS

Part 1 – Main amendments

Environment Protection and Biodiversity Conservation Act 1999

Background to the amendments

The Independent Review of the Act identified a need for legally enforceable standards to underpin the effective operation of the Act. National Environmental Standards will set the requirements for decision-making to deliveroutcomes for the environment and heritage, and clearly define the fundamental processes that ensure sound and effective decision-making. They will be specific, and provide clear rules, giving upfront clarity and certainty for decision-makers and proponents.

Part 1 of Schedule 1 will enable the Minister to make standards, known as National Environmental Standards, which will underpin accredited environmental assessment and approval processes under bilateral agreements with states and territories, as well as certain decisions or things under the Act. National Environmental Standards will be a legislative instrument for the purposes of the Legislation Act.

Approval bilateral agreements allow states and territories to make environmental assessment and approval decisions in relation to Commonwealth protected matters. National Environmental Standards will underpin the entry into, and ongoing operation of, bilateral agreements. The accreditation of state and territory assessment and approval processes will be contingent on those processes not being inconsistent with the National Environmental Standards. The amendments in Part 1 of Schedule 1 will provide assurance that accredited state and territory processes for environmental assessments and approvals are sound and directed towards delivering national environmental outcomes for nationally protected matters.

The amendments will also enable the Minister to determine certain decisions and things under the Act that will be subject to the National Environmental Standards. Once a determination has been made by the Minister, the person making the decision, or doing the thing, must be satisfied that the decision or thing is not inconsistent with a relevant National Environmental Standard. Whether a decision or thing is not inconsistent with a National Environmental Standard can be determined by reference to a range of factors including policies, plans, programs and funding activities of the Commonwealth, states or territories. The Minister may make a decision, or do a thing, that is inconsistent with a National Environmental Standard relevant to the decision or thing if the Minister is satisfied that it is in the public interest to do so.

Detail of the amendments

Making, varying and revoking National Environmental Standards

Item 6 of Part 1 of Schedule 1 inserts new Chapter 3A and new Part 5A into the Act relating to National Environmental Standards. The simplified outline at new section 65B provides an outline of Part 5A. The outline is not intended to be comprehensive, and has been included to assist readers to understand, rather than replace, the substantive provisions of Part 5A.

Making a National Environmental Standard

National Environmental Standards will deliver outcomes for the environment and heritage,  and clearly define the fundamental processes that ensure sound and effective decision-making. New subsection 65C(1) gives the Minister the power to make National Environmental Standards for the purposes of the Act. Item 7 amends section 528 of the Act to define a National Environmental Standard as a standard in force under Part 5A. 

When a National Environmental Standard is first made, it will be treated as an ‘interim’ Standard until it has undergone its first review (new subsection 65G(1) requires the Minister to cause reviews to be undertaken of each National Environmental Standard, with the first review to be undertaken within 2 years of the Standard commencing (new subsection 65G(2)).

A National Environmental Standard will be a legislative instrument for the purposes of the Legislation Act. As such, the consultation requirements of section 17 of that Act will apply. Section 17 requires appropriate and reasonably practicable consultation to be undertaken before a legislative instrument is made. Appropriate consultation will depend on the circumstances, but will include the extent to which the consultation process drew on the knowledge of persons having expertise in fields relevant to the proposed National Environmental Standard, and the extent to which persons likely to be affected by the proposed National Environmental Standard had an adequate opportunity to comment on its proposed content. It is anticipated that the National Environmental Standards will be developed in consultation with science, Indigenous, environmental and business stakeholders and the community, as well as the states and territories.

While a National Environmental Standard will be a legislative instrument, the disallowance provision of the Legislation Act will not apply to the first National Environmental Standard that is made in relation to a particular matter (new subsection 65C(3)). Variations to a National Environmental Standard, and subsequent National Environmental Standards that relate to the same matter, will be subject to the disallowance provisions of the Legislation Act.

National Environmental Standards in force under new Part 5A will be integral to facilitating single-touch approvals under accredited state and territory environmental assessment and approval processes. The disallowance of the first Standard made in relation to a particular matter would frustrate this process, as it would mean no National Environmental Standards would exist for a particular matter and bilateral agreements would not be underpinned by the National Environmental Standards. As the Minister must be satisfied that the processes accredited for a bilateral agreement are not inconsistent with one or more National Environmental Standards that are in force under new Part 5A (see Items 1 and 2), they are an essential pre-requisite for the entry into, and the ongoing operation of, bilateral agreements with the states and territories. As such, an exemption from the disallowance provisions of the Legislation Act for the first Standard made in relation to a particular matter is required to ensure the effective operation of bilateral agreements. In addition, as a state or territory process proposed for accreditation for the purposes of a bilateral agreement will be benchmarked against the National Environmental Standards in force under new Part 5A, the exemption from disallowance is necessary to provide certainty to the states and territories, and assurance to the public generally, that those processes meet the necessary standards to make environmental assessment and approval decisions in relation to Commonwealth protected matters.  

Under section 14 of the Legislation Act, unless there is a contrary intention, legislative instruments:

·         may apply, adopt or incorporate (with or without modification) the provisions of a Commonwealth Act, a legislative instrument (within the meaning of the Legislation Act) or rules of court as in force at a particular time, or as in force from time to time; and

·         may only apply, adopt or incorporate (with or without modification) any matter contained in any other instrument or other writing as in force at the time the legislative instrument commences or a time before it commences.

New subsection 65C(4) creates a contrary intention for the purposes of subsection 14(2) of the Legislation Act. New subsection 65C(4) will enable a National Environmental Standard to apply, adopt or incorporate an instrument or other writing as it exists at a particular time, or as in force or existing from time to time, even if the instrument or other writing does not yet exist when the Standard is made. For example, a National Environmental Standard may make reference to Australia’s obligations under international conventions, or may refer to Commonwealth instruments, such as conservation advices. It is necessary to allow instruments or other writings to be applied, adopted or incorporated into a National Environmental Standard either as in force or existing from time to time to ensure the environmental outcomes of a Standard are able to be met, and will ensure the Standard remains contemporary as documents are updated or created over time. It is the intention that any instruments or other writings applied, adopted or incorporated into a National Environmental Standard will be freely and publicly available. For example, section 266B of the Act requires the Minister to publish conservation advices on the internet within 10 days of approval. 

Commencement of a National Environmental Standard

It is necessary to allow an appropriate period between the time a National Environmental Standard is made, and when it commences, to ensure that state and territory processes will not be inconsistent with a National Environmental Standard when it commences. New subsection 65C(2) clarifies that a National Environmental Standard will commence on the day specified in the Standard, which must be at least one month, but not more than 6 months, after the day on which the Standard is made. As a National Environmental Standard will be a legislative instrument and available on the Federal Register of Legislation, the date a Standard is made and commences will be readily available.

The restriction on the time within which a National Environmental Standard can commence will ensure that all processes to which a National Environmental Standard relates can be revised and updated (if necessary) to ensure those processes are not inconsistent with a National Environmental Standard on its commencement. This is necessary as Items 4 and 5 amend sections 58 and 59 of the Act to provide the Minister with the ability to suspend or cancel an approval bilateral agreement if the Minister is satisfied that a state or territory has given effect, or will give effect, to the agreement in a way that is inconsistent with a relevant National Environmental Standard.

Varying or revoking a National Environmental Standard

 

New subsection 65D(1) gives the Minister the power to vary or revoke a National Environmental Standard. An instrument varying or revoking a National Environmental Standard will be a legislative instrument for the purposes of the Legislation Act. As such, the consultation requirements of that Act (described above) will apply. An instrument varying or revoking a National Environmental Standard will be subject to the disallowance provisions of the Legislation Act.

New subsection 65D(2) clarifies that a variation of a National Environmental Standard will commence on the day specified in the variation, which must not be more than 6 months after the day on which the variation is made. As an instrument varying a National Environmental Standard will be a legislative instrument and available on the Federal Register of Legislation, the date a variation is made and commences will be readily available. This is necessary to allow an appropriate period between the time that a variation is made, and when it commences, to revise and update (if necessary) processes to which the Standard relates to ensure they are not inconsistent with the National Environmental Standard as varied.

There are circumstances where a delayed commencement of a variation to a National Environmental Standard will not be necessary. For example, a variation may be minor in nature and does not substantially affect the operation of a National Environmental Standard. Similarly, it is not necessary to delay commencement of an instrument revoking a National Environmental Standard.

Similar to National Environmental Standards made under new section 65C, new subsection 65D(3) also enables a variation of a National Environmental Standard to apply, adopt or incorporate instruments or other writings as they exist at a particular time, or as in force or existing from time, to time even if the instrument or writing does not exist when the standard is made. For the reasons outlined above, allowing instruments or other writings to be applied, adopted or incorporated into a variation of a National Environmental Standard either as in force or existing from time to time is necessary to ensure the environmental outcomes of a Standard are able to be met, and will enable the Standard to remain contemporary as documents are updated or created over time.

Transitional arrangements for National Environmental Standards and variations

 

New section 65E will enable a National Environmental Standard made under new section 65C, or a variation to a National Environmental Standard made under new section 65D, to specify the circumstances in which a National Environmental Standard does not apply in relation to a decision or thing covered by new subsection 65H(1) (new subsection 65H(1) requires a person making a decision, or doing a thing, that is determined in an instrument made under new subsection 65H(4), to be satisfied that the decision or thing is not inconsistent with a National Environmental Standard relevant to the decision or thing). This may relate to one or more processes that have begun under the Act before the commencement of the Standard (new subsection 65E(2)).

Review of National Environmental Standards

As stated above, when a National Environmental Standard is first made, it will be treated as an ‘interim’ Standard. To ensure National Environmental Standards remain contemporary, and reflect the latest information and available data, new section 65G requires a National Environmental Standard to undergo regular reviews. The first review must be undertaken within 2 years of the commencement of a Standard (new subsection 65G(2)). Once a Standard has undergone the first review, it will no longer be considered as an ‘interim’ Standard. Subsequent reviews are required at intervals of not more than 5 years (new subsection 65G(3)).

While the Minister must cause reviews to be undertaken of each National Environmental Standard (new subsection 65G(1)), the amendments provide the Minister with the flexibility to ensure the review is conducted by a person or persons with the appropriate expertise relevant to the specific Standard. This may include, for example, the Department or members of a committee established under the Act. The persons undertaking the review must give the Minister a written report of the review (new subsection 65G(4)), which the Minister must cause to be published on the Department’s website as soon as practicable after the report is given to the Minister (new subsection 65G(5)).

Application of the National Environmental Standards to state and territory assessment and approval processes

 

National Environmental Standards will underpin bilateral agreements with the states and territories. The accreditation of state and territory environmental assessment and approvals processes for an approval bilateral agreement, and the entry into an assessment bilateral agreement, will be contingent on the Minister being satisfied that the relevant state or territory management arrangement, authorisation process, or the manner in which the impacts of an action will be assessed, is not inconsistent with one or more National Environmental Standards in force under new Part 5A.

State and territory process must not be inconsistent with a National Environmental Standard

Under the current provisions of the Act, an action that is covered by an approval bilateral agreement does not require separate approval under the Act if the action has been approved and taken in accordance with a bilaterally accredited management arrangement or abilaterally accredited authorisation process (section 29). To accredit a management arrangement or an authorisation process for the purposes of an approval bilateral agreement, the Minister must be satisfied that the arrangement or process, and the law under which it is in force, or in which it is set out, meet the criteria prescribed in the regulations; there has been, or will be, an adequate assessment of the impacts of an action; and that any actions approved under an approval bilateral agreement will not have an unacceptable or unsustainable impact on a matter of national environmental significance (subsection 46(3)).

Item 1 of Part 1 amends subsection 46(3) to also require the Minister to besatisfied that the management arrangement or the authorisation process proposed for accreditation is not inconsistent with one or more National Environmental Standards in force under new Part 5A (new paragraph 46(3)(aa)).

Similarly, under the current provisions of the Act, the impacts of an action do not require assessment under Part 8 of the Act if they are assessed in a manner specified in an assessment bilateral agreement under section 47 of the Act (section 83). The Minister may only enter into an assessment bilateral agreement if the Minister is satisfied that the assessment of an action in the manner specified in the bilateral agreement will include an assessment of the impacts the action has, will have, or is likely to have, on each matter of national environmental significance (subsection 47(2)).

Item 2 of Part 1 repeals and replaces subsection 47(2) to also require that the Minister be satisfied that the specified manner of assessment under an assessment bilateral agreement is not inconsistent with one or more National Environmental Standards in force under new
Part 5A
.

Item 3 of Part 1 inserts new subsection 48A(3) into the Act  requiring approval bilateral agreements to include a provision that decisions approving the taking of actions in accordance with a bilaterally accredited management arrangement or a bilaterally accredited authorisation process will not be inconsistent with one or more National Environmental Standards in force under new Part 5A. An approval bilateral agreement will not have any effect if it does not include a provision of this nature. To satisfy this requirement, a provision of a bilateral agreement could set out the context by reference to which a decision under an accredited arrangement or process is determined to be not inconsistent with one or more National Environmental Standards that are in force and relevant to the decision. This context could include, for example, the collective impacts on protected matters of actions approved under the arrangement or process, the implementation of avoidance, mitigation and offset measures for all actions approved under the arrangement or process, and the implementation of other relevant environmental measures.

Items 1, 2 and 3 provide assurance that accredited state and territory environmental assessment and approval processes will be sound and directed towards delivering national environmental outcomes for nationally protected matters.

Notifying states and territories of new or varied National Environmental Standards

As stated above, the commencement of a new or varied National Environmental Standard will be delayed, enabling processes to which a National Environmental Standard relates to be revised and updated (if necessary). To help facilitate this process, new section 65F requires the Minister to notify the appropriate minister of a state or territory that is a party to an approval bilateral agreement or an assessment bilateral agreement of the making, variation or revocation of a National Environmental Standard. The notification must be in writing. This is further to the consultation undertaken with the states and territories before a National Environmental Standard is made or varied.

For a new or varied National Environmental Standard, the notification under new subsection 65F(1) must also include a request that the state or territory minister provide advice to the Minister as to whether a bilaterally accredited management arrangement or authorisation process for an approval bilateral agreement, or a specified manner of assessment for an assessment bilateral agreement, is inconsistent with a new or varied National Environmental Standard (new subsection 65F(2)). This requirement does not apply in relation to a variation if the Minister is satisfied that the variation is minor (new subsection 65F(3)). A variation will be considered to be minor if it does not involve a significant change in the effect of a National Environmental Standard. This could include, for example, correcting typographical errors or updating references to documents.

As it may be necessary for a state or territory to update the bilaterally accredited management arrangement or authorisation process, or the specified manner of assessment, as a result of the new or varied National Environmental Standard, the notification will be provided to the relevant state or territory minister as soon as practicable after the National Environmental Standard is made or varied.

If a process that underpins an approval bilateral agreement is inconsistent with a new or varied National Environmental Standard on its commencement, it will be open to the Minister to suspend and/or cancel the bilateral agreement.

Suspension and cancellation of bilateral agreements

Division 3 of Part 5 of the Act contains provisions that enable a bilateral agreement to be suspended or cancelled either generally or in relation to a specified class of actions. If the Minister believes that a state or territory has not complied, or will not comply, with the agreement, or if the Minister believes that the state or territory has not given effect, or will not give effect, to the agreement in a way that accords with the objects of the Act and promotes the discharge of Australia’s relevant international obligations, the Minister must consult with the relevant state or territory minister (section 58).

If, following that consultation process, the Minister is not satisfied of those matters, the Minister may give written notice of the suspension or cancellation of all or part of the bilateral agreement to the relevant state or territory minister (section 59). The Minister could give notice if, for example, a state or territory approved the taking of an action that caused a listed threatened species to become more threatened, or a state or territory approved an action that was not consistent with the protection, conservation and presentation of the values of a World Heritage property.

Item 4 inserts a new paragraph 58(1)(c) into the Act, requiring the Minister to consult with the relevant state or territory minister if the Minister believes that the state or territory has given effect, or will give effect, to an approval bilateral agreement in a way that is inconsistent with a National Environmental Standard. If, following that consultation, the Minister is satisfied this is the case, Item 5 inserts new subsection 59(1A) into the Act providing the Minister with the discretion to give written notice of the suspension or cancellation of all or part of the approval bilateral agreement to the relevant state or territory minister.

The Minister may exercise these powers where, for example, following a request to a state or territory minister under new section 65F, the Minister believes that the state or territory will give effect to an approval bilateral agreement in a way that is inconsistent with a National Environmental Standard as the process accredited under the agreement is inconsistent with a new or varied Standard.

Application of the National Environmental Standards to decisions under the Act

 

Decisions must not be inconsistent with a National Environmental Standard

New section 65H sets out how National Environmental Standards will apply to decisions made, or things done, under the Act where a National Environmental Standard is relevant to the decision or thing. New subsection 65H(1) requires a person making a decision, or doing a thing, that is determined by the Minister in an instrument made under new subsection 65H(4), to be satisfied that the decision or thing is not inconsistent with a National Environmental Standard. A determination of the Minister under new subsection 65H(4) will be a legislative instrument for the purposes of the Legislation Act, and will be subject to the disallowance provisions of that Act. As the determination will be a legislative instrument, and available on the Federal Register of Legislation, the decisions or things that the Minister has determined must not be inconsistent with a National Environmental Standard will be publicly available. 

When considering whether a decision or thing is not inconsistent with a National Environmental Standard relevant to the decision or thing, new subsection 65H(2) enables the person making the decision, or doing the thing, to take into account matters such as policies, plans or programs of the Commonwealth, a state or territory, or funding of activities related to the environment or the promotion, protection or conservation of heritage, by the Commonwealth, state or territory. New subsection 65H(3) clarifies that subsection 65H(2) does not limit the matters that a person may take into account in considering whether a decision or thing is not inconsistent with a National Environmental Standard relevant to the decision or thing. This ensures that all matters that are relevant to determining whether a particular decision or thing is not inconsistent with a relevant National Environmental Standard can be taken into account. For example, provided it can be shown that the impacts on the values of a National Heritage place are balanced by mechanisms that promote those values (which may, for example, be delivered through funding of activities by a state relating to the promotion of those values), a decision will not be inconsistent with a relevant National Environmental Standard.

Transitional arrangements

 

New subsection 65H(5) enables a determination of the Minister under new subsection 65H(4) to specify the circumstances in which new subsection 65H(1) will not apply to a decision or thing. Similar to new section 65E, it is anticipated that the circumstances will relate to one or more processes that have begun under the Act before the commencement of the determination under new subsection 65H(4) (new subsection 65H(6)).


 

Public interest exception

In certain circumstances, it may be necessary for a decision made or thing done to be inconsistent with a relevant National Environmental Standard where the Minister considers it is in the public interest. For example, in the context of the public interest, it may be necessary to balance environmental considerations with the social and/or economic impacts of a project, or where a Standard may not be met due to the need to balance multiple protected matters. New subsection 65H(7) recognises this, and provides the Minister with the ability to make a decision or do a thing that is inconsistent with a National Environmental Standard where the Minister is satisfied that it is in the public interest to do so.

New subsection 65H(8) enables the Minister to determine whether a decision or thing is subject to the public interest exception under new subsection 65H(7). A determination under new subsection 65H(8) could be made at the same time as a determination under new subsection 65H(4), or at a later time. A determination under new subsection 65H(8) is a legislative instrument for the purposes of the Legislation Act, and is subject to the disallowance provisions of that Act. As the determination will be a legislative instrument, and available on the Federal Register of Legislation, the decisions or things that the Minister has determined to be subject to the public interest exception will be publicly available.

If the Minister decides to apply the public interest exception to a decision or thing, new subsection 65H(9) requires the Minister to publish a statementon the Department’s website setting out the reasons why the Minister is satisfied that the decision or thing is in the public interest. This statement must be published as soon as practicable after making the public interest decision.

Application provisions

As a management arrangement or authorisation process is accredited for the purposes of a bilateral agreement, bilateral agreements are entered into before accreditation occurs. Item 8(1) clarifies that new paragraph 46(3)(aa) (inserted by Item 1) will apply in relation to the accreditation of a management arrangement or an authorisation process on or after the commencement of Item 8, regardless of whether the bilateral agreement was entered into before, on or after that commencement.

Item 8(2) clarifies that the repeal and substitution of subsection 47(2) by Item 2 will apply in relation to an assessment bilateral agreement entered into on or after the commencement of Item 8.

Item 8(3) clarifies that new subsection 48A(3A) (inserted by Item 3) applies in relation to a bilateral agreement entered into on or after the commencement of Item 8.

Items 8(4) and 8(5) clarify that the amendment to subsection 58(1) made by Item 4 and new subsection 59(1A) (inserted by Item 5) will apply in relation to an approval bilateral agreement entered into before, on or after the commencement of Item 8.

Item 8(6) clarifies that new subsection 65H(1) (inserted by Item 6) will apply to decisions made or things done on or after the commencement of Item 8. However, as this requirement will only be enlivened once a National Environmental Standard commences, Item 8(7) clarifies that the application of new subsection 65H(1) is subject to new section 65E and new subsection 65H(5) which allow a Standard, a variation to a Standard, or a determination under new subsection 65H(4) to contain transitional arrangements specifying the circumstances in which a Standard, variation or determination will apply to decisions and things generally.

Part 2 – Contingent amendments

Item 9 is a contingent amendment which amends paragraph 46(3)(aa) (inserted by Item 1 of Part 1) to clarify that, if there are one or more National Environmental Standards, the Minister is satisfied that the management arrangement or an authorisation process is not inconsistent with those Standards.

This amendment is required as Item 2 of Schedule 5 to the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2021 omits the reference to “the Minister is satisfied that” from subsection 46(3), and Items 3, 4 and 5 of Schedule 5 to that Bill insert a similar reference into paragraphs 46(3)(a), 46(3)(b) and 46(3)(c).

SCHEDULE 2 – ENVIRONMENT ASSURANCE COMMISSIONER

Environment Protection and Biodiversity Conservation Act 1999

Background to the amendments

The Independent Review of the Act identified the need for strong independent oversight of environmental assessment and approval systems, including accredited state and territory systems, to provide confidence that the outcomes of the National Environmental Standards are being achieved and the requirements of the EPBC Act are being upheld. 

Schedule 2 establishes the Environment Assurance Commissioner to provide strong, rigorous assurance that environmental assessment and approval systems, either under bilateral agreements with the states and territories, or under the Act, are working well and are delivering outcomes for the environment, business, and the community. Schedule 2 also specifies the arrangements governing the Commissioner’s appointment and the exercise of the Commissioner’s functions and powers, including the preparation of annual work plans and reporting requirements.  

Detail of the amendments

 

Establishment and functions of the Commissioner

 

Item 1 of Schedule 2 inserts a new Part 18A into the Act relating to the Environment Assurance Commissioner. The simplifiedoutline at new section 501A provides an outline of new Part 18A. The outline is not intended to be comprehensive, and has been included to assist readers to understand, rather than replace, the substantive provisions of Part 18A.


 

Establishment of the Commissioner

 

New section 501B provides that there is to be an Environment Assurance Commissioner. The Commissioner is established as an independent, statutory position within the Department.

To ensure that the person appointed as the Commissioner has the necessary qualifications for the role, a person is not eligible for appointment unless the Minister is satisfiedthat the person has a high level of expertise in one or more fields relevant to the Commissioner’s functions (new paragraph 501D(3)(a)). In addition, the Minister must also be satisfied that the person to be appointed as Commissioner does not have any interests (pecuniary or otherwise) that conflict, or could conflict, with the proper performance of the Commissioner’s functions (new paragraph 501D(3)(b)).

The Commissioner is appointed by the Governor-General, by written instrument, on either a full-time basis or a part-timebasis (new subsection 501D(1)). Under new subsection 501D(2), the Commissioner holds office for the period specified in the instrument of appointment, which must not exceed 5 years. The note to new subsection 501D(1) clarifies that the Commissioner may be reappointed under section 33AA of the AI Act (section 33AA provides that if an Act confers on a person or body a power to make an appointment, the power is taken to include a power of reappointment). Despite the application of section 33AA of the AI Act, new subsection 501D(4) provides that a person cannot be appointed for more than 2 terms.

New section 501E enables the Minister to appoint, by written instrument, a person to act as the Commissioner during a vacancy in the office of the Commissioner, or during any period where the Commissioner is either absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office. The note to new section 501E directs readers to sections 33AB and 33A of the AI Act for rules that apply to acting appointments.

New section 501T enables the Secretary of the Department to make the services of APS employees available for the purpose of assisting the Commissioner perform his or her functions.

The Commissioner will be an official of the Department for the purposes of the finance law (within the meaning of the PGPA Act) (new subsection 501N(1)). As such, the Commissioner will have certain responsibilities under the PGPA Act relating to the exercise of due care and diligence, acting honestly, in good faith and for a proper purpose, and not improperly using their position or information (see the note to new subsection 501N(1)). However, as new section 501J requires the Commissioner to disclose all interests (pecuniary or otherwise) the Commissioner has or acquires that conflict (or could conflict) with the proper performance of the Commissioner’s functions, section 29 of the PGPA Act does not apply (section 29 of the PGPA Act relates to the duty to disclose interests) (new subsection 501N(2)).

Functions and powers of the Commissioner

 

New section 501C sets out the functions of the Commissioner. To provide confidence that environmental assessment and approval systems are working well, the functions of the Commissioner include the ability to audit or monitor (or both) the operation of bilateral agreements (new paragraph 501C(1)(a)) and Commonwealth processes under the Act for making and enforcing approval decisions (new paragraphs 501C(1)(b) and 501C(1)(c)).

The ability of the Commissioner to monitor or audit (or both) the operation of bilateral agreements under new paragraph 501C(1)(a) would include, for example, states and territories implementation of the National Environmental Standards, whether the states and territories are adhering to the provisions of bilateral agreements, and whether states and territories are approving actions in accordance with the accredited processes. The Commissioner’s functions in relation to bilateral agreements would be in addition to any assurance mechanisms contained in bilateral agreements. States and territories will be responsible for the compliance and enforcement of actions approved under an approval bilateral agreement.

Similarly, in relation to environmental assessment and approval processes under the Act (new paragraph 501C(1)(b)), the Commissioner’s functions include the ability to monitor or audit (or both) the processes for making controlled action decisions under Part 7, the processes for the assessment of the relevant impacts of controlled actions under Part 8 and the processes for the approval of the taking of controlled actions under Part 9 (including decisions to attach conditions to an approval). To ensure all aspects of environmental assessment and approval processes under the Act are within the scope of the Commissioner’s functions, the Commissioner’s auditing and monitoring functions also apply to processes for assessing the impacts of an action under a strategic assessment undertaken under Division 1 of Part 10, and the granting of a strategic assessment approval under that Division. In addition, Subdivision A of Division 4 of Part 11 requires a Commonwealth agency or employee to obtain and consider the advice of the Minister before authorising specified actions with a significant impact on the environment, including: providing foreign aid; managing aircraft operations in airspace; adopting or implementing a major development plan for an aircraft; or actions authorised by a sea dumping permit (under the Environment Protection (Sea Dumping) Act 1981) or a Basel permit (granted under the Hazardous Waste (Regulation of Exports and Imports) Act 1989). As this process provides an alternative pathway for managing the environmental impacts of those actions, it is appropriate that the Commissioner’s functions also include the monitoring or auditing of the processes under Subdivision A of Division 4 of Part 11 for the giving of advice in relation to proposals to give authorisations of actions.

If the Commissioner conducts an audit under new paragraphs 501C(1)(a), (b) or (c), the Commissioner’s functions include the preparation of reports on those audits (new paragraph 501C(1)(d)). An audit report must be published on the internet by the Commissioner within
30 business days of completion (new subsection 501C(2)). Business days is defined in the
AI Act as a day that is not a Saturday, a Sunday or a public holiday in the place concerned (see section 2B of the AI Act).  

The Commissioner also has any other functions conferred on the Commissioner by new
Part 18A (new paragraph 501C(1)(e)), as well as any other functions prescribed by the regulations (new paragraph 501C(1)(f)). The Commissioner’s functions also include anything incidental to, or conducive to, the performance of the Commissioner’s functions (new paragraph 501C(1)(g)). 

As the Commissioner will provide oversight and assurance of environmental assessment and approval systems, new subsection 501C(3) makes it clear that the Commissioner’s functions do not include the monitoring or auditing of single decisions. The note to new paragraph 501C(3) clarifies that monitoring or auditing under new section 501C must be more general. Although the Commissioner is prevented from monitoring or auditing single decisions, new subsection 501C(3) does not prevent the Commissioner from undertaking an audit by reference to a sample of decisions. 

In order for the Commissioner to have access to information to perform their functions, new subsection 501C(4) enables the Commissioner to request a person to provide information or documents, or answer questions, if the Commissioner believes that a person has information or documents relevant to the performance of the Commissioner’s functions.

New section 501U will enable the Commissioner to disclose information, or provide a document the Commissioner obtains in the course of performing the Commissioner’s functions, to the persons or bodies specified in paragraphs 501U(1)(a) – (f). For the avoidance of doubt, new subsection 501U(2) clarifies that the information disclosed may be personal information (within the meaning of the Privacy Act 1988), or the document provided may contain personal information (also within the meaning of that Act).

To ensure the Commissioner has the necessary independence in order to perform their functions, new section 501R makes it clear that the Commissioner is not subject to the directions of the Minister in relation to the performance of the Commissioner’s functions.  Instead, new subsection 501S(1) enables the Minister to request that the Commissioner perform the functions covered by new paragraphs 501C(1)(a), (b), (c) or (d). The request of the Minister must be in writing, specify the matter to which the request relates, and include reasons for the request (new subsections 501S(1) and (2)).

The Commissioner can either agree, or refuse to agree, to the Minister’s request (new subsection 501S(3)). The Commissioner must then inform the Minister, in writing, of the Commissioner’s decision on the request and the reasons for the decision (new subsection 501S(4)).

To ensure the operation of the Commissioner is transparent, new subsection 501S(5) requires the Commissioner to publish on the internet the Minister’s request (and the reasons for the request), and the Commissioner’s decision (including reasons for the decision). This information must be published within 30 business days of the Commissioner’s decision. A business day is defined in the AI Act as a day that is not a Saturday, a Sunday or a public holiday in the place concerned (see section 2B of the AI Act).

The Commissioner may, in writing, delegate any or all of the Commissioner’s function or powers under new Part 18A to the Secretary of the Department or an SES employee, or acting SES employee, in the Department whose services have been made available under new section 501T (new subsection 501W(1)). However, the Commissioner is not able to delegate their functions under new subsection 501P(5) (finalisation of annual work plan), new subsections 501S(3) or (4) (agreeing, or refusing to agree, to requests of the Minister, and informing the Minister of the Commissioner’s decision (including reasons for the decision)) or section 501V (preparation of the annual report).

In exercising any delegated functions or powers, the delegate must comply with any direction of the Commissioner (new subsection 501W(3)).

Terms and conditions of appointment

 

Division 3 of new Part 18A sets out the terms and conditions of the Commissioner’s appointment, including remuneration (new section 501F), leave of absences (new section 501G), other paid work (new section 501H and Item 2), disclosure of interests (new section 501J), resignation (new section 501K) and termination of appointment (new section 501L).

New section 501M also clarifies that the Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by new Part 18A that are determined by the Minister.

Reporting requirements

 

Work plan

 

Division 4 of new Part 18A sets out the requirements for the Commissioner to prepare an annual work plan for each financial year, setting out the Commissioner’s priorities for that year (new subsection 501P(2)).

As soon as practicable before the start of each financial year, the Minister will be required to provide the Commissioner with a written statement of expectations for the year (new subsection 501P(1)). However, if the first day of the first term of office of the first Commissioner occurs in the first 6 months of a financial year, the Minister must provide a statement of expectations to the Commissioner for the remainder of the financial year as soon as practicable after that day (Item 3). The Commissioner is not required to prepare an annual work plan if the first day of the first term of office of the first Commissioner occurs in the last 6 months of a financial year.

The Commissioner must have regard to the Minister’s statement of expectations when preparing the annual work plan (new subsection 501P(3)).

Once the Commissioner has prepared the annual work plan, the Commissioner must provide it to the Minister (new subsection 501P(2)). The Minister may then either agree with the plan, and inform the Commissioner of this in writing, or make a written request for the Commissioner to make change to the plan (new subsection 501P(4)). If the Minister requests changes to the plan, the Minister must also include reasons for the changes in the request. While the Commissioner will be required to have regard to any changes requested by the Minister (new subsection 501P(5)), the Commissioner is not bound by those requests when finalising the annual work plan.

As soon as practicable after the annual work plan is finalised, the Commissioner must give the Minister a copy of the finalised plan (new subsection 501P(6)) and publish it on the internet with the Minister’s statement of expectations, and any requests of the Minister for changes to the work plan (including the reasons for the request) (new subsection 501P(7)).

Neither the finalised work plan nor the Minister’s statement of expectations are a legislative instrument for the purposes of the Legislation Act (new subsection 501P(8)). New subsection 501P(8) is merely declaratory of the law and is included to assist readers. A finalised work plan or the statement of expectations are not legislative in nature.

Under new subsection 501Q(1), the Commissioner may vary an annual work plan in writing, and provide a copy of the varied work plan to the Minister (new subsection 501Q(2)). The Commissioner must publish the varied annual work plan on the internet as soon as practicable after the plan has been varied (new subsection 501Q(3)). A variation of a work plan done under new subsection 501Q(1) is not a legislative instrument for the purposes of the Legislation Act (new subsection 501Q(4)). New subsection 501Q(4)) is merely declaratory of the law and is included to assist readers. A variation of an annual work plan is not legislative in nature.

Annual reports

 

New section 501V requires the Commissioner to prepare an annual report about the Commissioner’s activities during that year. The Commissioner may either prepare and give the Minister the report for presentation to the Parliament (new paragraph 501V(1)(a)) or the Commissioner may prepare and give the Minister the report for inclusion in the Department’s annual report given to the Minister under section 46 of the PGPA Act (new paragraph 501V(1)(b)). However, the Commissioner is only required to prepare an annual report for each financial year for which there is an annual work plan under new section 501P (see Item 4).

The Commissioner must publish the report on the internet as soon as practicable after the Minister has laid the report before each House of Parliament if new subsection 501V(1)(a) applies (new subsection 501V(2)(a)), or as soon as practicable after the Department’s annual report is laid before each House of the Parliament if new subsection 501V(1)(b) applies (new paragraph 501V(2)(b)).


 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) 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 Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 will ensure that approval bilateral agreements with states and territories are underpinned by national environmental standards, supported by strong assurance and oversight mechanisms. 

The Independent Review of the Environment Protection and Biodiversity Conservation
Act 1999
identified a need for legally enforceable standards to underpin the effective operation of the Act. National Environmental Standards will set the requirements for decision-making to deliveroutcomes for the environment and heritage, and will ensure that Commonwealth requirements and obligations for environmental approval and other decisions are upheld, regardless of which jurisdiction makes an approval decision.  

The Review also identified the need for strong independent oversight of environmental assessment and approval systems, including accredited state and territory systems, to provide confidence that the outcomes of the National Environmental Standards are being achieved and the requirements of the EPBC Act are being upheld. 

The Bill will:

·         establish a framework for the making, varying, revoking and application of National Environmental Standards. The application of the Standards to bilateral agreements with the states and territories will provide confidence that the requirements of the Act are being met when they conduct project assessments and make approval decisions under accredited processes; and

·         establish an Environment Assurance Commissioner to undertake transparent monitoring or auditing (or both) of the operation of bilateral agreements with the states and territories and Commonwealth processes under the Act for making and enforcing approval decisions.

Human rights implications

 

The Bill does not engage any of the applicable rights or freedoms.

National Environmental Standards will be legislative instruments that will set the requirements for decision-making to deliver outcomes for the environment and clearly define the fundamental processes that ensure sound and effective decision-making. Certain decisions or things under the Act determined by the Minister must not be inconsistent with a relevant National Environmental Standard.

The requirement that the decision-maker be satisfied certain decisions or things are not be inconsistent with a relevant National Environmental Standard does not remove the requirement for assessment and approval of actions that may have an unacceptable environmental impact. Rather, it will ensure clarity of objective, universally applicable standards that proponents must meet.

The Environment Assurance Commissioner will provide strong, independent oversight of environmental assessment and approval systems, including accredited state and territory systems, to provide confidence that the outcomes of the National Environmental Standards are being achieved and the requirements of the EPBC Act are being upheld.

The implementation of National Environmental Standards and the establishment of the Environment Assurance Commissioner may promote the right to health under Article 12(1) of the International Covenant on Economic, Social and Cultural Rights. The right to health is a broad concept that can be broken down into more specific entitlements including, relevantly, the rights to: healthy workplace and natural environments; the prevention, treatment and control of diseases; and access to safe and potable water. To the extent that National Environmental Standards will underpin bilateral agreements with states and territories and certain decisions or things under the Act, combined with strong assurance that environmental assessment and approval arrangements are working well and delivering outcomes for the environment, will improve the outcomes for the protection of Australia’s environment and heritage and biodiversity conservation, and will ensure development in an ecologically sustainable manner over the long term. Together, these factors will protect the right to a healthy natural environment.

Conclusion

The measures in the Bill are 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, as the Bill does not engage any human rights issues.

 

(Circulated by authority of the Minister for the Environment, the Hon. Sussan Ley MP)