Introductory Info

Date introduced: 25 February 2021
House: House of Representatives
Portfolio: Environment
Commencement:  Schedule 2 and Part 1 of Schedule 1 commence the day after Royal Assent. Part 2 of Schedule 1 commences on the later of:

• immediately after the commencement of Part 1 of Schedule 1 and
• immediately after the commencement of item 2 of Schedule 5 to the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (if enacted). However, Part 2 of Schedule 1 will not commence at all if that item does not commence.

The Bills Digest at a glance

Background

• In 2019–20, Professor Graeme Samuel conducted a ten-year statutory review of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) (Samuel Review).
• The Final Report of the Samuel Review, released in January 2021, concluded that the EPBC Act is ‘ineffective’ and requires ‘fundamental reform’.[1]
• The Final Report made 38 recommendations and proposed a pathway of staged reform in three tranches. It also warned that ‘Governments should avoid the temptation to cherry pick from a highly interconnected suite of recommendations’.[2]
• The Government has not provided a formal comprehensive response to the Final Report.

Purpose of the Bill

• The Bill progresses some components of the Samuel Review’s proposed ‘tranche 1’ reforms by amending the EPBC Act to establish:
  • a framework for making and applying National Environmental Standards (Schedule 1) and
  • an Environment Assurance Commissioner (EAC) with monitoring and audit functions (Schedule 2).
• The Bill is closely related to the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (Streamlining Bill), currently before Parliament. The Streamlining Bill proposes to amend the EPBC Act to expand and clarify provisions which allow the Commonwealth to delegate environmental approval powers to the states and territories through bilateral agreements.

Key issues

• Industry groups broadly support the Bill, including the framework for National Environmental Standards and the proposed EAC. They consider this Bill, together with the Streamlining Bill, would provide certainty and clarity while addressing regulatory duplication in environmental approvals. However, several industry groups suggest that any National Environmental Standards made under the Bill should reflect the existing requirements of the EPBC Act.
• Other stakeholders, including environmental, legal and scientific organisations, generally do not support the Bill, expressing considerable concern. Many noted the lack of a comprehensive government response to the Final Report of the Samuel Review, and suggested that the Government was ‘cherry picking’ recommendations and making piecemeal reforms, rather than implementing the full range of ‘tranche 1’ reforms identified in the Final Report.[3]
• Many of these other stakeholders also suggested that the Bill does not properly reflect the recommendations in the Samuel Review which the Bill is proposing to implement. Their concerns included:
  • uncertainty as to the content and application of the proposed National Environmental Standards due to the broad Ministerial discretion provided, as well as the lack of parliamentary scrutiny of the initial standards and
  • the proposed EAC’s limited powers, resourcing and independence.

Purpose and structure of the Bill

The purpose of the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 (the Bill) is to amend the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) to establish:

• a framework for making, varying, revoking and applying National Environmental Standards (Schedule 1) and
• an Environment Assurance Commissioner (EAC) to monitor and audit the operation of bilateral agreements with the states and territories as well as to oversee Commonwealth processes under the EPBC Act for making and enforcing approval decisions (Schedule 2).

Background

The EPBC Act is currently administered by the Department of Agriculture, Water and the Environment (the Department).[4]

The EPBC Act provides that certain actions (including projects, developments, undertakings or activities),[5] known as ‘controlled actions’, must be referred for environmental assessment and approval by the Commonwealth Environment Minister. Under the EPBC Act, a ‘controlled action’[6] is an action that has, will have or is likely to have a significant impact on:

•    a ‘matter of national environmental significance’[7]
•    the environment on Commonwealth land[8] or
•    the environment, where the action is undertaken by the Commonwealth Government or a Commonwealth agency.[9]

The current matters of ‘national environmental significance’, which are largely based on Australia’s responsibilities under international agreements dealing with environmental protection, are set out in Part 3 of the EPBC Act as follows:

•    world heritage properties
•    national heritage places
•    wetlands of international importance
•    listed threatened species and ecological communities
•    listed migratory species
•    Commonwealth marine areas
•    the Great Barrier Reef Marine Park
•    nuclear actions (such as uranium mines) and
•    water resources in relation to large coal mining and coal seam gas developments (known as the ‘water trigger’).[10]

A more detailed overview of the EPBC Act is available in the Parliamentary Library’s Environment Protection and Biodiversity Conservation Act 1999: A Quick Guide.[11]

Environmental assessment processes

Actions that require approval under the EPBC Act undergo an environmental assessment process. A useful flowchart of the environmental assessment process is available on the Department’s website.[12] There are three key stages to this process:

1. Referral: A proposed action is first ‘referred’ by the proponent to the Commonwealth Environment Minister for his or her decision as to whether the action is a ‘controlled action’: that is, whether it requires formal assessment and approval under the EPBC Act.[13] This decision is based on whether the proposed action is likely to have a significant impact on one or more of the matters of national environmental significance (as listed above) or on the environment if it involves Commonwealth land or a Commonwealth agency. If approval is required, then the proposed action proceeds to the assessment and approval stage.

2. Assessment: The Minister (or his or her delegate) determines the method of assessment for the controlled action, based on considerations set out in the EPBC Act and the Environment Protection and Biodiversity Conservation Regulations 2000 (EPBC Regulations). The assessment methods include: an accredited assessment approach, assessment based on information contained in the referral to the Commonwealth, assessment based on preliminary documentation, a public environment report (PER), an environmental impact statement (EIS) or a public inquiry.[14]The appropriate assessment approach will depend on a range of matters, such as the scale and nature of an action’s impacts.[15]

In practice, assessment bilateral agreements are in place with all states and territories (as discussed below). This means that many projects are assessed under accredited state or territory processes, but the Commonwealth Environment Minister makes the final decision as to whether to approve the action (and whether the approval is subject to conditions).[16]

3. Approval: Once a project has been assessed, the Commonwealth Environment Minister decides whether to approve an action under the EPBC Act, and the conditions to attach to that approval.[17]

Assessment and approval may also be required at the state or territory level under relevant state or territory legislation. Some industry groups argue this is unnecessary duplication which, in turn, results in additional costs and delays for those projects.[18] In an attempt to minimise this duplication, the EPBC Act allows the Commonwealth to enter into bilateral agreements with the states and territories, as discussed in the next section.

Bilateral agreements

Bilateral agreements are made under Part 5 of the EPBC Act and enable the Commonwealth to accredit relevant state and territory processes, to effectively delegate the assessment and/or approval of actions which would otherwise require assessment and approval under the EPBC Act. The aim is to minimise duplication in the assessment and approval process for actions which require approval under both Commonwealth and state or territory laws.

There are two types of bilateral agreements:

•  assessment bilateral agreements, made under subsection 47(1) of the EPBC Act, which provide for a single assessment process by accrediting a state or territory process to assess the environmental impacts of a proposed action.[19] After assessment, the proposed action still requires two separate approval decisions from the Commonwealth (under the EPBC Act) and relevant state or territory frameworks
•  approval bilateral agreements, which can accredit the assessment and approval process of a state or territory.[20] A proposed action taken in accordance with a process accredited under an approval bilateral agreement does not require approval by the Commonwealth Minister.[21] Approval bilateral agreements cannot currently cover projects involving the water trigger.[22]

The EPBC Act has contained provisions for both assessment and approval bilateral agreements since it first came into force in 2000, although they were one of the more controversial aspects of the EPBC Act at the time of its original passage through Parliament.[23]

Assessment bilateral agreements have been made with all states and territories.[24] No state or territory approval processes have been accredited under approval bilateral agreements to date.[25]

Draft approval bilateral agreements were published for some states and territories in 2014–15, but none were finalised.[26] In March 2014, the Commonwealth Government also released a policy document, Standards for Accreditation of Environmental Approvals under the Environment Protection and Biodiversity Conservation Act 1999, which sets out environmental standards and considerations for accreditation of state and territory approval processes through bilateral agreements.[27]

EPBC Act review

The EPBC Act contains a statutory requirement to review the operation of the Act every ten years.[28] The last review (known as the Hawke Review) reported in 2009.[29] The Government response to the review was released in 2011.[30] Legislation to implement its recommendations was never introduced prior to the change of government in 2013.

In October 2019, the Minister announced the next independent statutory review, led by Professor Graeme Samuel.[31] The review released a discussion paper for public consultation in November 2019, and nearly 30,000 submissions were received.[32]

Interim Report

The review released an Interim Report on 20 July 2020.[33] The Interim Report found the EPBC Act to be ‘ineffective and inefficient’[34] and ‘not fit to address current or future environmental challenges’.[35] In the context of this Bill, two key aspects of the Interim report were the proposals for National Environmental Standards and an independent environmental regulator. The Interim Report suggested that ‘fundamental reform is required’ and that ‘new, legally enforceable National Environmental Standards should be the foundation’ of that reform.[36]

The Interim Report also noted a lack of trust in the EPBC Act: the community does not trust the Act to deliver effective protection of the environment, while industry views the Act as ‘cumbersome, duplicative and slow’.[37] To further build confidence, the Interim Report proposed an ‘independent compliance and enforcement regulator’ as an ‘independent cop on the beat … to deliver rigorous, transparent compliance and enforcement’.[38]

Government response to interim report

On 20 July 2020, following the release of the Interim Report, the Minister for the Environment stated that the Commonwealth will ‘prioritise the development of new National Environmental Standards, further streamlining approval processes with State governments and national engagement on Indigenous cultural heritage’.[39] She further stated that the Commonwealth will commit to certain ‘priority areas on the basis of the interim report’, including to develop National Environmental Standards and to progress approval bilateral agreements with ‘willing states’.[40] The Minister immediately ruled out the establishment of an independent regulator, but proposed that the Commonwealth would ‘take steps to strengthen compliance functions and ensure that all bilateral agreements with States and Territories are subject to rigorous assurance monitoring’.[41]

On 24 July 2020, the Prime Minister announced that the new National Cabinet had ‘agreed to move to single-touch environmental approvals underpinned by National Environmental Standards for Commonwealth environmental matters’.[42]

On 6 March 2020, the Government published a notice of intention to develop a draft approval bilateral agreement with the Northern Territory.[43] On 7 August 2020, the Government published notices of intention to develop draft approval bilateral agreements with all remaining states and territories.[44]

EPBC Streamlining Bill

In August 2020, the Government introduced a closely related Bill: the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (Streamlining Bill). That Bill proposes to amend the EPBC Act to expand and clarify provisions which allow the Commonwealth to delegate environmental approval powers to the states and territories through bilateral agreements (to create ‘single touch’ environmental approvals). As outlined in the Parliamentary Library’s Bills Digest, that Bill has been heavily criticised by some stakeholders for:

• being ‘rushed’ through Parliament before the finalisation of the independent statutory review
• replicating a 2014 Bill, formulated before the Samuel Review commenced (the Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014) and
• failing to address key recommendations in the Interim Report, particularly the development of National Environmental Standards.[45]

The Streamlining Bill passed the House of Representatives in September 2020 and was the subject of a Senate Committee inquiry.[46] The Senate Committee report recommended that the Bill be passed.[47] However, the Greens, Labor, and three crossbench senators (Senators Griff, Lambie and Patrick) wrote dissenting reports recommending that the Bill not be passed.[48]

The Streamlining Bill has not yet been considered in the Senate Chamber.[49] On 22 February 2021, Senators Griff, Lambie and Patrick stated that the Streamlining Bill ‘should not be passed before National Environmental Standards and an independent Environmental Assurance Commissioner have also been legislated’.[50]

Final report

The Final Report of the Samuel Review was released on 28 January 2021.[51] The Final Report concluded that the EPBC Act is ‘ineffective’, ‘not fit to address current or future environmental challenges’ and requires ‘fundamental reform’.[52] The Final Report made 38 recommendations, which it described as ‘substantial and necessary reforms to reverse the current state of environmental decline’.[53]

The Final Report recommended ‘a pathway of staged reform’ in three tranches and identified at least 14 recommendations as priority ‘tranche 1’ reforms which should be ‘immediately implemented’.[54] At the same time, the report warned that ‘Governments should avoid the temptation to cherry pick from a highly interconnected suite of recommendations’.[55]

The ‘centrepiece’ of the Samuel Review’s proposed reforms was to immediately amend the EPBC Act to ‘enable the development and implementation of legally enforceable National Environmental Standards’ (Recommendation 3).[56] The review proposed that these standards should be a ‘set of binding and enforceable Regulations’ which ‘focus on outcomes for matters of national environmental significance and on the fundamental processes for sound decision‑making’.[57] Appendix B of the Final Report set out a detailed set of National Environmental Standards, which the report recommended ‘should be adopted in full’.[58]

The Final Report proposed that the National Environmental Standards would underpin and provide confidence to accredit state and territory arrangements to deliver single-touch environmental approvals (Recommendation 14).[59]

The review further recommended that this accreditation be subject to rigorous, transparent oversight by the Commonwealth, including comprehensive audit by a new independent statutory Environment Assurance Commissioner (EAC).[60] Recommendation 23 proposed the immediate establishment of the EAC by statutory appointment and proposed that the EAC would have a number of other responsibilities (in addition to auditing accredited arrangements).[61]

The above recommendations are the key recommendations relevant to this Bill, and they are discussed in further detail in the ‘Key issues and provisions’ section of this Digest.

The Bill does not implement the other priority ‘tranche 1’ reforms identified in the Final Report including:

• recasting the statutory advisory committees and ensuring appropriate secretariat support and resourcing (Recommendation 12)
• implementing a modern suite of compliance and enforcement powers and improving transparency and accountability for the application of these powers (Recommendation 30)
• repairing the EPBC Act to fix inconsistencies, gaps and conflicts (Recommendation 9), improving durability of the settings for accredited decision-makers (Recommendation 14), and revising the offsets policy (Recommendation 27)
• instigating work on complex enabling reforms, such as appointing an interim environmental information supply chain custodian (Recommendation 31) and developing monitoring and evaluation plans for each matter of national environmental significance (MNES) (Recommendation 33)
• Indigenous-specific reforms, such as:
  • instigating a review of national-level cultural heritage protections (Recommendation 7)
  • requiring transparent and respectful consideration of Indigenous knowledge and science in decision-making (Recommendation 5)
  • making an initial National Environmental Standard for Indigenous engagement and participation in decision-making based on the recommended Standard set out in Appendix B2 of the report (Recommendation 5), and then further refining this Standard through an Indigenous-led process and
  • working with Indigenous Australians to meet their aspirations to manage their land in partnership with the Commonwealth (Recommendation 8).[62]

Government response to final report

To date, the Government has not published a formal response to the Samuel Review. However, in her second reading speech, the Minister for the Environment did state:

… the review concluded that the EPBC Act needed fundamental reform, it also recommended that this be pursued in staged tranches, taking time to deliver well-considered adjustments.

I have committed to working through the full details of the recommendations of the review. We will do this in consultation with business, industry, environment groups, farmers, Indigenous Australians, and states and territories to deliver lasting reforms to national environmental law.

With the [S]treamlining [B]ill and this [B]ill, the government has commenced the first phase of reform, introducing amendments to establish the central pillars recommended by the review. These include the delivery of robust single-touch approval agreements that are underpinned by national environmental standards and subject to strong and independent assurance.

The Australian government is committed to delivering the reforms needed to improve the act, in a methodical, well-planned way.

Further phases of reform will build on these efforts and our ongoing discussion with stakeholders.[63]

In February 2021, the Government reportedly circulated draft National Environmental Standards which largely restated the existing requirements of the EPBC Act.[64] Final draft standards were published on the Department’s website in late April.[65] These standards are discussed further in the ‘Key issues and provisions’ section.

Committee consideration

Senate Environment and Communications Committee

The Bill was referred to the Senate Environment and Communications Legislation Committee for inquiry and report by 1 June 2021. Details are on the Inquiry homepage. The Committee received 133 submission, two supplementary submissions and 751 form letters as part of an email campaign opposing the Bill.[66] A public hearing was held in Canberra on 4 May 2021.[67] Issues raised in submissions are discussed in the ‘Position of major interest groups’ and ‘Key issues and provisions’ sections of this Digest.

The Committee’s Report was released on 8 June 2021 and the Committee recommends that the Bill be passed,[68] subject to two amendments:

• that ‘the government introduce amendments to subsection 65G(2) to require the first review of any interim standard to be completed within two years of the standard commencing’ (recommendation 1) and
• that ‘the government introduce amendments to section 65C to specify interim standards sunset after a period of two years from the date of commencement and that any renewal of an interim standard is subject to disallowance’ (recommendation 2).[69]

Dissenting reports from the ALP, Australian Greens and Independent Senator Rex Patrick are discussed in the ‘Policy position of non-government parties/independents’ section of this Digest.

Senate Standing Committee for the Scrutiny of Bills

The Senate Scrutiny of Bills Committee made comments in relation to several provisions in the Bill and requested further advice from the Minister on a number of issues.[70] The Minister responded to the Committee’s comments in a letter dated 13 April 2021 and the Committee commented on this response in its Scrutiny Digest of 21 April 2021.[71] The Committee’s comments and the Minister’s response are discussed further in relation to the relevant provisions in the ‘Key issues and provisions’ section of this Digest.

Policy position of non-government parties/independents

The ALP has described the Bill as ‘inconsistent with the Samuel Review’.[72] Ms Butler, Shadow Minister for the Environment and Water, suggested that the Bill ignores the ‘substance of the report’ and is ‘cherry-picking’ its recommendations.[73] Ms Butler also suggested the Government is ‘pursuing second-rate’ National Environmental Standards. At the same time, Ms Butler stated that Labor would ‘work constructively on the reform process and consider any sensible proposals’ and would ‘give this new Bill the consideration it warrants’.[74] These views are reiterated in the ALP Senators’ dissenting report to the Committee Inquiry into the Bill.[75] That report recommends:

that the government withdraw this bill and instead propose, for the parliament’s consideration, an interconnected suite of reforms that:

• provide for stronger environmental protections to address the overall state of decline and the state of increasing threat
• establish a tough cop on the beat to help restore trust and
• support efficient and effective decision-making under the EPBC Act in the interests of avoiding unnecessary delays to jobs and investment.[76]

The Greens have described the Bill as ‘making a mockery’ of the Samuel Review, suggesting that the Government’s ‘latest attempt to weaken Australia’s environmental laws completely ignores their own expert’s recommendations and will lock in the demise of our wildlife and iconic natural places’.[77] Senator Hanson-Young, Greens Environment spokesperson, stated:

We need strong environmental standards and laws that protect our iconic natural places and precious wildlife and an independent watchdog to hold governments and corporate interests to account. This bill doesn’t even get close to delivering that.[78]

Senator Hanson-Young’s dissenting report on behalf of the Greens to the Committee Inquiry recommends ‘that [the] bill not be passed’.[79]

Before the Bill was introduced, Centre Alliance expressed concerns about the Government’s approach to the EPBC Act in response to the Samuel Review. Ms Sharkie noted:

The Government hasn’t produced a formal, comprehensive response to Professor Samuel’s review and there has been no opportunity for public consultation on the proposed national standards or the design of the position of an independent Environmental Assurance Commissioner.[80]

She suggested that ‘effective, legally enforceable National Environmental Standards should be the foundation’, along with an ‘independent umpire’.[81]

Senators Griff, Lambie and Patrick also stated prior to the introduction of this Bill that the Streamlining Bill ‘should not be passed before National Environmental Standards and an independent Environmental Assurance Commissioner have also been legislated’.[82] Senator Patrick has also reportedly indicated that prior to ‘blindly passing pieces of legislation’, he wants to see a ‘plan for how the review recommendations are going to be implemented, including timeframes’.[83] He has reportedly stated that the Minister ‘would have to put up a very good case as to why she would take a different approach to that recommended by [the] Samuel [review]’.[84]

Senator Patrick’s dissenting report to the Committee Inquiry reiterated these points, recommending:

•    ‘the bill should not be passed with the standards as proposed by the Government’
•    ‘the bill should not be passed until the National Environmental Standards are brought into the primary legislation’
•    ‘the reasons and thresholds for making an exemption, in the national interest, must be set out in the primary legislation. These decisions must explicitly be subject to merits review’
•    ‘the Environmental Assurance Commissioner’s role must be expanded to include compliance and enforcement and the commissioner must be given teeth’ and
•    ‘the Streamlining Environmental Approvals bill should not be debated until this bill has passed through the Senate’.[85]

Mr Andrew Wilkie has introduced a Bill to establish a Commonwealth Environment Protection Authority, as an ‘independent body to depoliticise, streamline and strengthen environmental regulation’.[86] In introducing that Bill, Mr Wilkie expressed concern that the Environmental Assurance Commissioner proposed by this Bill would have:

… no power to investigate proponents, no power to compel provision of information and no power to actually fix anything. This toothless tiger wouldn't even have the power to investigate individual decisions related to projects, and [the government] appears to have completely ignored Professor Samuel's recommendation for an independent Office of Compliance and Enforcement.[87]

At the time of writing, other non-government parties and independents do not appear to have commented directly on the Bill.

Position of major interest groups

The following section provides a broad overview of the position of some major interest groups, with further details discussed in the ‘Key issues and provisions’ section of this Digest.

Industry groups

Industry groups generally supported the Bill in submissions to the Senate Committee inquiry. For example, in its submission, the Business Council of Australia supported the Bill, describing it as a ‘practical and necessary step along the reform pathway’.[88] However, the Business Council also urged the Government to ‘set a clear timetable for the longer-term reforms, to provide confidence and certainty for all stakeholders in the process ahead’.[89]

The Minerals Council similarly supported the Bill, suggesting that together with the Streamlining Bill, it ‘fulfills the core tenets of the Samuel Review recommendations’ to establish National Environmental Standards, accredit state and territory processes using the standards as a benchmark and create an EAC.[90] The Minerals Council considered that National Environmental Standards would ‘provide clarity and certainty for the accreditation of state and territory approval process’, enabling ‘duplication to be addressed while achieving strong environmental outcomes’.[91] The Minerals Council also considered that the EAC would provide the independent oversight ‘needed to improve community confidence and trust in the EPBC Act’.[92]

The Australian Petroleum Production and Exploration Association (APPEA) similarly broadly supported the Bill, including the phased introduction of National Environmental Standards and the establishment of the Environment Assurance Commissioner.[93]

The Property Council of Australia and the Urban Development Institute of Australia (UDIA) National supported the Bill, suggesting that the ‘principles outlined in the Bill are sound and consistent with the objectives of the reform agenda’.[94] They described the Bill as a neat complement to the Streamlining Bill and expressed support for the ‘goal of devolution and single point of assessment’.[95]

Some industry groups noted that they supported the intent of National Environmental Standards, but not the standards as proposed in the Final Report of the Samuel Review.[96] The National Farmers Federation (NFF), for example, broadly supported the arrangements proposed for the National Environmental Standards and the EAC in the Bill.[97] However, the NFF expressed concerns about the standards proposed in the Final Report of the Samuel Review, stating that it was inclined to support standards which reflect the current obligations under the Act.[98]

Environmental organisations

Environmental organisations did not support the Bill.[99] Many considered that the Bill is inconsistent with the Samuel Review, or only partially implements some of the review’s recommendations.[100] Many conservation groups appeared to consider that the Bill was ‘cherry‑picking’ some measures in an attempt to get Senate support for this Bill and the Streamlining Bill and thereby facilitate the handover of Commonwealth approval powers to the states and territories.[101] The Australian Conservation Foundation (ACF), for example, strongly encouraged the Government to release a comprehensive response to the 38 inter-connected recommendations in the Samuel Review.[102]

The World Wide Fund for Nature-Australia (WWF-Australia) described the Bill as ‘yet another attempt to cherry-pick one part of the Independent Review findings without consideration for more integrated reform that would address the rapidly declining state of Australia’s natural environment’.[103] WWF-Australia similarly recommended that the Government provide a full response to the Final Report, and establish a timeline to address the findings, and a public consultation process for considering both the Final Report and Government Response.[104]

The Environmental Defenders Office (EDO) suggested that this Bill and the Streamlining Bill be ‘withdrawn and replaced by a comprehensive legislative package’ that implements the tranche 1 reforms identified in the Samuel Review Final Report.[105]

Many conservation groups emphasised the need for strong and enforceable National Environmental Standards, and expressed concern at the lack of detail in the Bill as to the content of the National Environmental Standards, as well as concern that the Government has developed interim standards which ‘merely replicate the existing provisions of the EPBC Act’.[106] For example, the Australian Conservation Foundation (ACF) described ‘the complete abandonment of the set of National Environmental Standards contained in the final report of the independent review’ as the ‘most concerning element of the Government’s approach’.[107]

Several environment organisations also expressed particular concern with the ‘public interest’ exemption, which would enable the Minister to make decisions that are inconsistent with new National Environmental Standards if he or she considers it to be in the ‘public interest’.[108] The Humane Society International (HSI) described this as a ‘a major loophole’ which would undermine the National Environmental Standards.[109] This provision is discussed further in the ‘Key issues and provisions’ section of this Digest.

Conservation groups were also concerned that the proposed EAC would not have sufficient powers or resources and would be effectively ‘toothless’, particularly because the EAC would not have the power to audit individual decisions.[110]

Science sector

The Australian Academy of Science has expressed support for the recommendations of the Samuel Review, including ‘strong, consistent, effective and clear’ National Environmental Standards which ‘address the shortcomings of the current EPBC Act’.[111] However, the Academy observed that the Bill’s amendments ‘are structural and do not speak to the content of the Standards’.[112] The Academy suggested that the draft standards should be released for public comment, to provide assurance that the Standards envisaged in the Bill will meet the criteria in the Samuel Review.[113]

As with other stakeholders, several submissions from the science sector were concerned that the Bill only partially implements some of the recommendations made in the Samuel Review.[114] For example, the Australian Academy of Science expressed support for the Samuel reforms ‘in their entirety’, and noted that the Bill does not address several areas, including strengthening cultural heritage protections; monitoring, evaluation, and reporting on the effectiveness of the Act itself; and cultivating and applying scientific evidence through high-quality data and analysis tools.[115] The Academy was concerned that ‘in the absence of clear signals and a committed, published, timetable … key reforms will not be made and the opportunity lost, to the serious detriment of Australia’s natural systems’.[116]

Similarly, the Threatened Species Recovery Hub considered that ‘the changes outlined in the current Bill appear unlikely to benefit MNES [matters of national environmental significance], and indeed could significantly increase the risk of poor environmental outcomes’.[117]

The Wentworth Group of Concerned Scientists described the Bill as ‘an important step forward’, but the Group set out three key concerns in relation to the Bill:

• failure to ‘prescribe clear requirements for the quality and application of national environmental standards’
• insufficient powers and resources for the EAC to undertake independent compliance and enforcement of Commonwealth, states and territories and
• ‘no public commitment that all the urgent reforms identified by the final Report will be implemented to deliver comprehensive improvement to the Act’.[118]

The Group made several recommendations to address these concerns (some of these are detailed in the ‘Key issues and provisions’ section). The Group suggested that the Bill be opposed until these concerns were addressed.[119]

State and territory governments

As noted earlier, National Cabinet has reportedly ‘agreed to move to single-touch environmental approvals underpinned by National Environmental Standards for Commonwealth environmental matters’.[120] The Prime Minister announced that the National Cabinet also agreed in December 2020 ‘to develop national environmental standards reflecting the current requirements of the EPBC Act’.[121]

However, media reports indicate that some state and territory governments have reservations on this issue.[122] For example, the ACT Minister for the Environment has reportedly expressed concerns that the federal government is ‘rushing the process’ which might ‘lock in’ environmental standards which are weaker than those proposed in the Final report of the Samuel Review.[123]

In a submission to the Senate Commission inquiry, the ACT Minister for the Environment stated her concern about ‘the absence of a timetable and pathway for reform consistent’ with the Final Report of the Samuel Review.[124] She considered that the ‘Federal Government should respond to all 38 recommendations of the Samuel report prior to progressing this legislation’.[125] In particular, she noted that ‘it is unclear’ whether the National Environmental Standards recommended in the Samuel report would be implemented.[126] Finally, the ACT Minister noted that additional resourcing from the Commonwealth will be necessary for accredited states and territories to administer an approval bilateral agreement and to undertake additional reporting requirements.[127]

The Western Australian (WA) Government also made a submission to the Senate Committee inquiry. In that submission, the WA Government supported amending the EPBC Act ‘in-principle’ to allow the Commonwealth Minister to make National Environmental Standards to underpin bilateral agreements and assessment and approval of actions under the EPBC Act.[128] However, the WA Government raised concerns about the provision to apply the standards to decision-making by the Commonwealth Minister,[129] and considered that the consultation requirements for making or amending the standards were ‘not sufficient’.[130]

Others

The Law Council of Australia considered that the Bill should only progress following a ‘full and comprehensive’ Government response to the Final Report.[131] The Law Council supported the introduction of legally enforceable National Environmental Standards ‘in principle’.[132] However, the Law Council suggested that there should be clear requirements around the quality of those Standards, along with requirements to ensure the ‘consistent and comprehensive application’ of those Standards.[133] The Council further suggested that the Standards should be available for public and parliamentary scrutiny, and also subject to disallowance.[134] The Law Council expressed support for the ‘full suite of nine Standards recommended in the Final Report’ as an ‘important starting point’, and noted that ‘the Bill and its explanatory materials do not indicate whether the recommended Standards included in the Final Report will be adopted’.[135]

The Law Council also considered that the EAC as proposed by the Bill ‘should not be progressed’ without significantly strengthening compliance and enforcement mechanisms in the EPBC Act, as set out in the Final Report of the Samuel Review (in particular, under Recommendations 29 and 30).[136] The Law Council also commented that the EAC’s powers as provided in the Bill are ‘not comprehensive and fall short of the standard for the EAC contemplated in the Final Report’.[137] The Law Council also considered ‘there is a blurred line between the EAC and the Department in terms of operational work, thereby potentially jeopardising the EAC’s independence’. The Law Council suggested that the Bill currently ‘places the burden of ensuring actual compliance with, and enforcement of, any Standards predominantly on States and Territories’.[138]

The Indigenous Advisory Committee (IAC, established under section 505A of the EPBC Act) suggested that broader consultation needs to be undertaken ‘with Land Councils and other key groups that represent the interests of Aboriginal and Torres Strait Islander Peoples who may be impacted by legislative reform of the EPBC Act’.[139] The IAC was concerned that the interim National Environmental Standards proposed by the Bill ‘will overlook the objectives of the Act in relation to Indigenous peoples interests and rights’ and the Bill does not mandate consultation with Indigenous stakeholders in relation to the standards.[140] The IAC also noted that the interim standards that had been released ‘completely omit’ the Indigenous Engagement and Participation standard recommended in the Final Report of the Samuel Review.[141]

Financial implications

According to the Explanatory Memorandum, the framework for National Environmental Standards in Schedule 1 will have no financial impacts.[142] The establishment of the Environment Assurance Commissioner in Schedule 2 is estimated to cost the Commonwealth ‘no more than $9 million over the next four years’.[143] However, the Explanatory Memorandum also states that:

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.[144]

As outlined in the Parliamentary Library’s Budget Review 2021–22, the recent Federal Budget provided $9 million over four years from 2021–22 to establish the EAC.[145] No additional funding was provided to develop National Environmental Standards, or to support states and territories under the ‘single-touch environmental approvals’ proposal.[146]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[147]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights had no comment on the Bill.[148]

Key issues and provisions

As outlined earlier in this Digest, the Bill purports to amend the EPBC Act to implement some of the key recommendations of the Final Report of the Samuel Review:

• to ‘enable the development and implementation of legally enforceable National Environmental Standards’ (Recommendation 3)[149] and
• to establish an Environment Assurance Commissioner to oversee audits of decision-making by the Commonwealth under the EPBC Act, as well as accredited parties under accredited arrangements made under the EPBC Act (Recommendation 23).[150]

In turn, these proposals should ‘provide confidence to accredit state and territory arrangements to deliver single-touch environmental approvals in the short-term’ by ensuring that accreditation is:

• underpinned by legally enforceable National Environmental Standards and
• subject to rigorous, transparent oversight by the Commonwealth, including comprehensive audit by the independent Environment Assurance Commissioner (Recommendation 14).[151]

However, a key issue for many stakeholders was the lack of a comprehensive government response to the Final Report to the Samuel Review. They were concerned that the Government was ‘cherry-picking’ recommendations from the report, given the absence from the Bill of the other ‘tranche 1’ reforms identified in Final Report.[152] Those other ‘tranche 1’ reforms are outlined in the ‘Background’ section of this Digest.

In addition, while industry groups broadly supported the content of the Bill, other stakeholders raised numerous concerns with multiple provisions of the Bill, including the extent to which the provisions of the Bill fully reflect the actual detail of the recommendations in the Samuel Review. Some of the key concerns are discussed further below. However, given the large number of detailed concerns, the following information is a summary overview and not comprehensive.

National environmental standards (Schedule 1)

Part 1 of Schedule 1 of the Bill contains amendments to the EPBC Act which would enable the Minister to make National Environmental Standards. Item 6 of Part 1 of Schedule 1 inserts new Chapter 3A and new Part 5A into the EPBC Act relating to National Environmental Standards.

This would implement Recommendation 3 of the Final Report of the Samuel Review which proposed that the EPBC Act be ‘immediately amended to enable the development and implementation of legally enforceable National Environmental Standards’.[153] Recommendation 3 further elaborated:

a) The Act should set out the process for making, implementing and reviewing National Environmental Standards. The Act should include specific provisions about their governance, consultation, monitoring and review.

b) The Act should require that activities and decisions made by the Minister under the Act, or those under an accredited arrangement, be consistent with National Environmental Standards.

c) The Act should include a specific power for the Minister to exercise discretion to make a decision that is inconsistent with the National Environmental Standards. The use of this power should be a rare exception, demonstrably justified in the public interest and accompanied by a published statement of reasons which includes the environmental implications of the decision.

d) National Environmental Standards should be first made in a way that takes account of the current legal settings of the Act. The National Environmental Standards set out in detail in Appendix B should be adopted in full. The remainder of the suite of Standards should be developed without delay to enable the full suite of 9 Standards to be implemented immediately. Standards should be refined within 12 months.[154]

Making standards

Proposed subsection 65C(1) in the new Part 5A provides that the Minister may, by legislative instrument, make National Environment Standards for the purposes of the EPBC Act. In other words, proposed subsection 65C(1) gives the Minister the discretion to make National Environment Standards: it would not be mandatory for the Minister to make National Environmental Standards.

Several stakeholders suggested that the development of National Environmental Standards should be mandatory, not left to the Minister’s discretion, particularly given that National Environmental Standards are the ‘centrepiece’ of the reforms recommended by the Samuel Review.[155]

While the Samuel Review recommendations (as outlined above) do not appear to specifically state whether the power to make standards should be mandatory or discretionary, it is notable that the review states, among other matters:

The development of Environmental Standards and regional plans, and improvements in the data, information and regulatory systems, are central to improving the quality and efficiency of development assessment and approval processes.[156] [emphasis added]

Disallowance of standards

Proposed subsection 65C(3) provides that the first National Environmental Standard made in relation to a particular matter will not be disallowable under section 42 of the Legislation Act 2003. Variations to a National Environmental Standard, and subsequent standards that relate to the same matter, will be subject to the disallowance provisions of the Legislation Act.[157] The Explanatory Memorandum suggested that the reason for this is the standards:

… 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.[158]

The NFF supported the approach of the initial standards not being disallowable ‘to ensure they do not erode certainty nor confidence, and to allow them to be further refined’.[159] However, many other stakeholders considered that the interim standards should be disallowable.[160] For example, the Wentworth Group of Concerned Scientists stated:

If the first set of standards fall short of what is required, the Bill prevents those standards from being disallowed by Parliament, leaving the potential for poor standards to be locked in, undermining the effectiveness of the Act.[161]

Scrutiny concerns

The Senate Scrutiny of Bills Committee commented that proposed section 65C would leave significant matters (that is, National Environmental Standards) to delegated legislation. The Committee expressed its view that significant matters, such as the matters that will be dealt with in National Environmental Standards, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided.[162] The Committee observed that, in this instance, the Explanatory Memorandum contains ‘no justification regarding why it is necessary to allow such significant matters to be set out in delegated legislation’.[163]

The Committee also noted that proposed subsection 65C(3) provides that disallowance would not apply in relation to each of the first National Environmental Standards made under section 65C in relation to a particular matter. The Committee further noted its expectation that ‘any exemption of delegated legislation from the usual disallowance process should be fully justified in the [E]xplanatory [M]emorandum’.[164] The Committee noted there is some explanation for this exemption in the Explanatory Memorandum,[165] but also pointed out that instances of disallowance by the Parliament are very low, and that certainty may also be achieved by having delegated legislation come into effect after the disallowance period has expired.[166]

The Committee therefore requested the Minister’s detailed advice as to why it is considered necessary and appropriate to establish National Environmental Standards by legislative instrument and to exempt the first National Environmental Standards from disallowance. The Committee also asked for the Minister’s advice as to whether the Bill can be amended to include at least high-level guidance regarding the content of National Environmental Standards on the face of the primary legislation, particularly in light of the proposal to exempt first standards from disallowance.[167]

In response, the Minister advised that establishing National Environmental Standards as a legislative instrument provides flexibility for the standards to respond to new information and changing circumstances.[168] The Minister further advised that a standard will be treated as an ‘interim’ standard until it has undergone its first review, and that exempting ‘interim’ standards from disallowance provides certainty for processes involving bilateral approval agreements to support the implementation of single touch environmental approvals.[169]

The Senate Scrutiny of Bills Committee noted the Minister’s advice but reiterated its view that ‘a desire for certainty is unlikely to be sufficient justification for exempting delegated legislation from the parliamentary disallowance process’.[170] The Committee noted its concerns ‘are heightened by the absence of legislative guidance as to the content of national environmental standards’.[171] The Committee also noted there is no requirement in the Bill that standards must be varied or remade following a first review, and it would be possible for ‘interim’ National Environmental Standards to continue in existence indefinitely without ever being subject to parliamentary oversight.[172]

The Committee requested further advice from the Minister as to whether the Bill can be amended to provide certainty in relation to the first standards made under proposed section 65C by:

• requiring the positive approval of each House of the Parliament before the first standards come into effect or
• providing that the first standards do not come into effect until a disallowance period of five sitting days has expired.[173]

The Committee also requested the Minister’s further advice as to whether, at a minimum, the Bill can be amended to provide for the automatic repeal of the first standards following the first review of a standard.[174]

In response, the Minister advised ‘requiring the positive approval of each House of the Parliament before the first standards come into effect, or providing for a shorter period of disallowance after which the standards commence would delay the transition to single touch environmental approvals’ as ‘it would reduce the certainty required for the benchmarking of state and territory processes, the commitment states and territories must make to not act inconsistently with the standards, and agreement to the terms of approval bilateral agreements’.[175] The Minister further stated ‘automatic repeal of the first standards following a review would also create uncertainty and delay the transition to single touch environmental approvals’.[176]

The Committee thanked the Minister for her response and reitrearted:

its consistent scrutiny view that exempting legislation from the usual parliamentary disallowance process, and therefore from democratic oversight by the Commonwealth Parliament, is only justified in exceptional circumstances. As noted in its previous comments on the bill, the committee does not consider that a desire for certainty or a short delay to the commencement of a new scheme is likely to be a sufficient justification for exempting delegated legislation from the parliamentary disallowance process. This is particularly so as there are range of legislative options for reducing uncertainty, such as those suggested by the committee. Consequently, the committee continues to have significant scrutiny concerns in relation to the exemption of the first national environmental standards from disallowance and notes that its scrutiny concerns have not been adequately addressed by the minister.[177]

Accordingly, the Committee requested that the Bill be amended:

to provide certainty in relation to the first standards made under proposed section 65C by:

• requiring the positive approval of each House of the Parliament before the first standards come into effect; or
• providing that the first standards do not come into effect until a disallowance period of five sitting days has expired.

If such an amendment is not considered appropriate, the committee requests, at a minimum, that the bill be amended to provide for the automatic repeal of the first standards following the first review of a standard undertaken in accordance with proposed subsection 65G(2).[178]

Content of the standards

The Bill establishes a framework for National Environmental Standards, but the actual content of the standards will be crucial. The Samuel Review emphasised the importance of the standards setting ‘clear requirements for those that interact with the EPBC Act and clear bounds for decision-makers’.[179] However, the Bill does not contain any requirements or criteria in relation to the content of the standards.

The Wentworth Group of Concerned Scientists, for example, expressed concern that in the absence of clear requirements for the content of the standards, ‘it is impossible to guarantee that States and Territories protect matters of national environmental significance in the national interest or that the poor environmental outcomes currently occurring under the EPBC Act would be addressed’.[180] The Wentworth Group therefore recommended that the Bill be amended to require the standards to be developed in a ‘scientific, evidence-based manner by appropriate experts’, and to be consistent with the objectives of the EPBC Act, including that they ‘maintain or enhance’ the absolute outcomes for all matters of national environmental significance; and prevent cumulative impacts at all scales (national, state, regional and individual project levels).[181]

Draft standards

As noted earlier in this Digest, Appendix B of the Final Report of the Samuel Review set out a detailed set of standards which the review proposed should be made immediately. However, in December 2020, National Cabinet reportedly agreed ‘to develop national environmental standards reflecting the current requirements of the EPBC Act’.[182] In February 2021, the Government reportedly circulated standards which restated the existing requirements of the EPBC Act.[183]

Final draft standards were then published on the Department’s website in late April.[184] The Departmental website states that the standard ‘reflects the current requirements of the EPBC Act’.[185]

There are substantial differences between the final draft standards and the recommended standards as proposed in Appendix B of the Final Report. For example, the standards proposed by the Samuel Review refer to concepts such as addressing cumulative impacts, and decisions being based on the best available information.[186] These concepts are absent from the final draft standards. In addition, the draft standards only cover matters of national environmental significance and do not address the Samuel Review’s recommendations for specific national environmental standards for Indigenous engagement and participation in environmental decision‑making, a standard for environmental compliance and enforcement and a standard for data and information.[187] The EDO observed that ‘considerable expert input went into development of the interim standards proposed in the Final Report’ and suggested that these standards ‘must be the starting point for developing standards’.[188]

As outlined earlier in this Digest, conservation groups have also expressed concern that the standards as drafted by the Government are simply ‘the clauses of the EPBC Act rearranged on another piece of paper’.[189] The Wentworth Group of Concerned Scientists described the interim national standards circulated in February as ‘alarmingly short of any acceptable standards’, therefore ‘underlining the need for strong requirements for the quality, application and outcomes focus of standards to be specified in the Bill’.[190]

In contrast, industry groups expressed support for standards which reflected current EPBC Act settings, rather than the standards proposed by the Samuel Review.[191] The NFF, for example, suggested that the ‘current obligations are an appropriate baseline’ from which standards can be further refined in two years’ time’.[192] The NFF also considered that there was insufficient consultation in relation to some of the standards in the Final Report, such as the proposed NES for Indigenous participation and engagement.[193]

Consultation on standards

As noted earlier, Recommendation 3(a) of the Samuel Review proposed that the EPBC Act should be amended to include specific provisions about consultation, monitoring and review of the proposed standards.[194] The Bill does not set out any specific consultation requirements for the development of national environmental standards, although section 17 of the Legislation Act will apply. Section 17 requires ‘appropriate and reasonably practicable’ consultation to be undertaken before a legislative instrument is made. Proposed section 65G, discussed further below, provides for review of the standards.[195]

As noted earlier, draft national environmental standards were published on the Department’s website in late April.[196] There does not appear to be any formal public consultation process in relation to those draft standards.

Incorporating extrinsic materials

Proposed subsection 65C(4) provides that a National Environmental Standard may make provision in relation to a matter by applying, adopting or incorporating any matter contained in any other instrument or writing as in force or existing from time to time.

Several stakeholders, including industry groups, raised concerns with this subsection. For example, APPEA and the Business Council of Australia were concerned this would, in effect, allow administrative guidelines to have the same status as regulations or legislation, without having to go through the legislative process and parliamentary scrutiny.[197]

In addition, this type of provision means that the content of the standards can change in accordance with any changes made to the external document. The Senate Scrutiny of Bills Committee noted such provisions raise general scrutiny concerns as they:

• enable changes to be made to the law in the absence of parliamentary scrutiny
• can create uncertainty in the law and
• mean that those obliged to obey the law may have inadequate access to its terms, particularly where relevant information, including standards and other incorporated documents, are not publicly available or require a fee to access.[198]

The Committee noted the advice in the Explanatory Memorandum that National Environmental Standards may refer to Australia’s obligations under international conventions, or may refer to instruments, such as conservation advices, which would be freely and publicly available.[199] However, the Committee was concerned that the incorporation of external documents in force from time to time ‘may operate to change the requirements set out in these instruments without any involvement from Parliament’.[200] The Committee therefore requested the Minister’s advice as to why it is considered necessary and appropriate to incorporate documents as in force or existing from time to time, noting that this approach may mean that future changes to an incorporated document could operate to change important aspects of the National Environment Standards without any involvement from Parliament.[201]

In response, the Minister advised that this approach is ‘necessary and appropriate’ to ensure standards remain contemporary as those documents evolve over time’.[202] The Minister also advised that the ability to incorporate documents such as conservation advices as they exist from time to time ensures the protections in the standards reflect the latest scientific information, and remain commensurate with changing environmental management processes.[203]

In light of this information provided by the Minister, the Committee made no further comment on this matter, but requested that an addendum to the Explanatory Memorandum, containing the information provided by the Minister, be tabled in the Parliament as soon as practicable.[204]

Varying or revoking National Environmental Standards

Proposed subsection 65D(1) provides that the Minister may vary or revoke a National Environmental Standard. An instrument varying or revoking a National Environmental Standard will be a disallowable legislative instrument, and the consultation requirements of the Legislation Act (described above) will apply.[205]

Under proposed subsection 65D(2), a variation would commence on the day specified in the variation, which must be not more than six months after the variation is made. The Explanatory Memorandum notes that it 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.[206]

The Law Council queried whether this six month timeframe would be sufficient for states and territories which may need to make legislative amendments to accommodate a varied standard to avoid inconsistency.[207]

Notifying states and territories of new or varied National Environmental Standards

Proposed section 65F requires the Commonwealth Environment Minister to notify, in writing, the appropriate minister of a state or territory (that is a party to a bilateral agreement) of the making, variation or revocation of a National Environmental Standard.

The Explanatory Memorandum suggests that this is ‘further to the consultation undertaken with the states and territories before a National Environmental Standard is made or varied’.[208] However, as noted earlier, there is no requirement for consultation with states under the Bill as proposed, but section 17 of the Legislation Act does require ‘appropriate and reasonably practicable’ consultation to be undertaken before a legislative instrument is made.

For a new or varied National Environmental Standard, the notification under proposed subsection 65F(1) must also include a request that the state or territory minister advise the Commonwealth environment 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 (proposed subsection 65F(2)).

The requirement in proposed subsection 65F(2) does not apply in relation to a variation if the Minister is satisfied that the variation is minor.[209] The Explanatory Memorandum suggests that:

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.[210]

The Explanatory Memorandum further states:

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.[211]

The Law Council raised numerous concerns in relation to proposed 65F and the associated processes for suspending or cancelling bilateral agreements in the case of inconsistency with National Environmental Standards.[212] In particular, the Law Council was concerned that, among other matters:

… the efficacy of this process depends on the State or Territory self-identifying whether its bilaterally accredited arrangements or authorisation processes, or assessments of any relevant actions, are inconsistent with the Standard in response to a section 65F request. There is no obligation on the Minister to independently assess whether this is the case. Such an obligation should be included in the Bill, as part of reinforcing the Commonwealth’s role in ensuring that Standards are met at the national level.[213]

Reviewing standards

Proposed subsection 65G(1) provides that the Minister must cause reviews to be undertaken of each National Environmental Standard. The first review must be undertaken within two years of the standards commencing,[214] and subsequent reviews at intervals of not more than five years.[215]

The written report of the review must be given to the Minister and must be published on the Department's website.[216] There is no requirement for these reports be tabled in Parliament.

Stakeholders such as the Law Council suggested that the Bill should explicitly require the review to be undertaken by independent experts, the report to be tabled in Parliament, and the Minister to publicly respond to the review report within a specified timeframe.[217]

Scrutiny concerns

The Senate Scrutiny of Bills Committee similarly raised concerns in relation to the lack of a tabling requirement for these review reports and requested that proposed section 65G be amended to provide that the report of a review must be tabled in each House of the Parliament.[218]

The Scrutiny Committee noted that ‘not providing for the review report to be tabled in Parliament reduces the scope for parliamentary scrutiny’, because ‘tabling documents in Parliament alerts parliamentarians to their existence and provides opportunities for debate that are not available where documents are not made public or are only published online’.[219] As such, the Committee stated its expectation that there should be ‘appropriate justification for not including a requirement for review reports to be tabled in Parliament’.[220]

In response, the Minister advised that it is not necessary for a review report to be tabled in Parliament in order to provide opportunities for parliamentary scrutiny of the findings of the report.[221] The Minister further advised that parliamentary scrutiny of substantive matters would be ensured by the ability of Parliament to review variations to standards as a result of a review.[222]

The Committee noted the Minister’s advice but stated that it considered that this approach was not an adequate substitute for a legislative tabling requirement. The Committee noted, for example, that there is no requirement that standards be varied as a result of a review.[223] The Committee reiterated its view that an absence of a tabling requirement reduces the scope for parliamentary scrutiny as the process of tabling documents in Parliament alerts parliamentarians to their existence and provides opportunities for debate that are not available where documents are only published online.[224] The Committee therefore drew its concerns to the attention of Senators and left to the Senate the appropriateness of not providing for review reports to be tabled in Parliament.[225]

Application of the National Environment Standards

Appendix B of the Final Report of the Samuel Review proposed that the National Environmental Standards be applied in several ways.[226] In particular, the Final Report suggested that the following should be consistent with the National Environmental Standards:

1. activities and decisions made by the Environment Minister under the EPBC Act, including both
   1. individual project decisions and
   2. accreditation of state and territory processes and arrangements
2. activities and decisions of a third party under an accredited regulatory process or arrangement. ‘This includes decisions about the approval or authorisation of individual projects or actions.’[227]

As outlined below, the Bill provides that the accreditation of state and territory environmental assessment and approvals processes, as well as certain ‘decisions or things’ under the EPBC Act itself, will need to be consistent with any in-force National Environmental Standards. However, it is not clear whether individual decisions made under accredited state processes or arrangements will need to be consistent with the standards under the Bill as currently drafted.

Some stakeholders raised general concerns about the proposed application of the standards. For example, industry groups such as the Business Council of Australia suggested that the Bill is largely focussed on bilateral agreements and needs to be clearer in relation to the broader set of other possible accredited management arrangements or authorisation processes under the EPBC Act.[228] Both the Business Council and APPEA cited the example of the National Offshore Petroleum Safety and Environmental Management Authority, which was endorsed under the EPBC Act in 2014.[229]

Application to bilateral agreements

Items 1–5 of Schedule 1 to the Bill will apply the National Environmental Standards to certain aspects of approval bilateral agreements. In particular, accreditation of state and territory environmental assessment and approvals processes will be contingent on the Minister being satisfied that the relevant state or territory arrangement or process, or the manner in which the impacts of an action will be assessed, is not inconsistent with one or more National Environmental Standards.[230]

Application to approval bilateral agreements

Items 1 and 3 of Schedule 1 of the Bill provide for the application of National Environmental Standards in relation to approval bilateral agreements.

Currently, under paragraph 29(1)(e) of the EPBC 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 a bilaterally accredited authorisation process.

Subsection 46(3) of the EPBC Act currently requires the Minister to be satisfied of certain matters before accrediting a management arrangement or an authorisation process for the purposes of an approval bilateral agreement. That is, 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 relevant impacts of actions approved in accordance with the arrangement or process and
• that any actions approved under an approval bilateral agreement will not have unacceptable or unsustainable impacts on a matter of national environmental significance.

Item 1 of Schedule 1 proposes to amend subsection 46(3) to insert proposed paragraph 46(3)(aa) which would require the Minister to be also satisfied that the management arrangement or the authorisation process proposed for accreditation is not inconsistent with one or more National Environmental Standards (if there are any standards in force).[231]

Several stakeholders, such as the Law Council and the EDO, suggested that this was a ‘relatively weak’ test, and a weaker test than that proposed in the Final Report of the Samuel Review.[232] The Final Report recommended that the EPBC Act should:

… require that activities and decisions made by the Minister under the Act, or those under an accreditation arrangement, be consistent with National Environmental Standards.[233] [emphasis added]

In contrast, proposed paragraph 46(3)(aa) requires that a management arrangement or authorisation process ‘not be inconsistent with’ national standards, which the Law Council and the EDO considered to be weaker than requiring decisions to ‘be consistent with’ mandatory national environmental standards.[234]

Item 3 inserts proposed subsection 48A(3A) to require 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 (if any standards are in force).[235]

Application to assessment bilateral agreements

As outlined earlier in this Digest, actions covered by an assessment bilateral agreement made under section 47 of the EPBC Act do not require separate assessment under Part 8 of the Act.[236] Under subsection 47(2), the Minister may only enter into an assessment bilateral agreement if satisfied that assessments accredited under the bilateral agreement will include an assessment of an action’s impacts on each matter of national environmental significance.

Item 2 of Schedule 1 provides for National Environmental Standards to be taken into account before entering into assessment bilateral agreements. It does this by proposing to repeal and replace subsection 47(2) to require that the Minister be additionally satisfied that the specified manner of assessment under an assessment bilateral agreement is not inconsistent with one or more National Environmental Standards (if there are any standards in force).

Again, some stakeholders, including the Law Council, suggested that this provision be revised to ‘require demonstration of consistency with the Standards, rather than a lack of inconsistency’.[237]

Subitem 8(2) clarifies this requirement will only apply in relation to an assessment bilateral agreement entered into on or after the commencement of Item 8 (that is, the day after Royal Assent). In other words, this requirement will not be applied to the existing assessment bilateral agreements with states and territories that have been in place since 2015.

Cancelling or suspending approval bilateral agreements

Sections 57–64 of the EPBC Act enable the Commonwealth Environment Minister to suspend or cancel bilateral agreements in certain circumstances. Under section 58, the Commonwealth Environment Minister must consult with the appropriate state or territory minister if the Commonwealth Minister believes that a state or territory:

• has not complied, or will not comply, with the bilateral agreement
• 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.

Item 4 inserts proposed paragraph 58(1)(c) to add an additional requirement for 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. While the existing requirements in section 58 apply to both assessment and approval bilateral agreements, the new requirement in proposed paragraph 58(1)(c) would only apply to approval bilateral agreements. The Explanatory Memorandum does not appear to provide any explanation for the exclusion of assessment bilateral agreements from this requirement.

Currently, section 59 provides that, following that consultation, Minister may give written notice to the relevant state or territory minister of the suspension or cancellation of all or part of the bilateral agreement if the Minister is not satisfied that the state or territory has:

• complied with, or will comply with, the bilateral agreement and
• given effect, or will give effect, to the bilateral agreement in a way that accords with the objects of the Act and promotes the discharge of Australia’s relevant international obligations.

Item 5 inserts proposed subsection 59(1A) to provide that, following consultation under proposed paragraph 58(1)(c), the Commonwealth Environment Minister may give a state or territory minister written notice of the suspension or cancellation of all or part of an approval bilateral agreement. The Commonwealth Minister must be satisfied 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. Again, this provision will only apply to approval bilateral agreements.

The Law Council again suggested that proposed subsection 59(1A) be amended to revise the ‘not inconsistent’ approach with a requirement of consistency.[238] Indeed, the Law Council broadly suggested that items 1–5 of the Bill ‘require rewording so as to ensure consistent and objective application of a comprehensive suite of national Standards, and to avoid jurisdictional negotiation of Standards’.[239]

The Bill does not contain any equivalent provisions that would allow assessment bilateral agreements to be suspended or cancelled if they are not being applied in a manner consistent with any National Environmental Standard.

Applications of standards to ‘decisions or things’ under the EPBC Act

Proposed subsection 65H(1), inserted by item 6 of Schedule 1 of the Bill, requires a person ‘making a decision, or doing a thing’ under the EPBC Act to be satisfied that the decision or thing is ‘not inconsistent with’ a National Environmental Standard. The relevant ‘decisions or things’ will be determined by the Minister in a disallowable legislative instrument to be made under proposed subsection 65H(4).[240]

It is not clear which ‘decisions or things’ will be listed under proposed section 65H. It seems likely, for example, that project decisions under the EPBC Act (such as whether a project is a controlled action, the level of assessment, and the final approval decision) will be listed in the legislative instrument under proposed section 65H. This would be consistent with the proposals in the Samuel Review, which recommended, among other matters, that activities and decisions made by the Minister under the EPBC Act should be consistent with the National Environmental Standards, including decisions on the approval of individual projects or actions where they trigger the EPBC Act.[241]

It is possible that proposed section 65H will apply to a much wider range of ‘decisions or things’. However, this provision potentially also ‘gives the Minister discretion to exclude a large number of decisions of things under the EPBC Act from the requirement to not be inconsistent with Standards’.[242]

The Explanatory Memorandum does not give any examples of the types of decisions or things that might be included in such a Ministerial determination. As outlined below, the Senate Scrutiny of Bills Committee raised concerns that this approach meant that significant matters are being left to delegated legislation. Indeed, it is not clear why at least some ‘decisions or things’ could not be listed in the Bill itself, perhaps with a provision enabling additional matters to be determined through a legislative instrument. For example, section 391 of the EPBC Act lists decisions under the Act where the Minister must take into account the precautionary principle. Alternatively, the Law Council considered that:

… the starting point should be, as recommended by Professor Samuel, that all activities of government under the Act must be consistent with the Standards. The Executive discretion to depart from this requirement should be tightly confined – “a rare exception, demonstrably justified in the public interest, with reasons and environmental implications transparently communicated”.[243] [emphasis added]

Proposed subsection 65H(2) creates a broad range of matters to be considered when deciding if a relevant decision or thing is ‘not inconsistent’ with a Standard, including Commonwealth, state or territory funding, policies, plans or programs.[244] The Explanatory Memorandum states:

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.[245]

The Law Council considered that proposed subsection 65H(2) should be deleted, as it risks ‘opening the door for negotiation’ with the relevant state or territory:

For example, it may be submitted by a State or Territory that while the strict terms of a Standard are not met for a particular development (for example, because there will be significant impacts on a MNES), there will be funding or ‘promotion’ of conservation elsewhere that will balance out the specific inconsistency. Room is left for decisions to be endorsed on the basis of collective regional outcomes broader than a specific project. While the Law Council acknowledges the importance of regional outcomes, this approach will not address cumulative impacts of individual projects (another issue identified in the Final Report and contrary to its recommendations).[246]

Application and transitional arrangements

Proposed section 65E will enable a National Environmental Standard (or a variation to a National Environmental Standard) to specify the circumstances in which the standard does not apply in relation to a ‘decision or thing’ covered by proposed subsection 65H(1). This may include circumstances where one or more processes have begun under the Act before the commencement of the standard (proposed subsection 65E(2)).

Proposed subsection 65H(5) also enables a Ministerial determination under proposed subsection 65H(4) to exclude certain decisions or things from the requirement in subsection 65H(1) to be consistent with a National Environmental Standard. This includes, for example, decisions or things relating to processes that have begun under the EPBC Act before the commencement of a determination (proposed subsection 65H(6)).

Public interest exemption

Recommendation 3(c) of the Final Report of the Samuel Review proposed:

The Act should include a specific power for the Minister to exercise discretion to make a decision that is inconsistent with the National Environmental Standards. The use of this power should be a rare exception, demonstrably justified in the public interest and accompanied by a published statement of reasons which includes the environmental implications of the decision.[247] [emphasis added]

Proposed subsection 65H(7) of the Bill 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. ‘Public interest’ is not defined by the Bill, but the Explanatory Memorandum gives the following 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.[248]

Proposed subsection 65H(8) enables the Minister to make a determination as to whether a ‘decision or thing’ is subject to the public interest exception. A determination under proposed subsection 65H(8) will be a legislative instrument for the purposes of the Legislation Act. As such, the determination will be publicly available on the Federal Register of Legislation and will also be subject to disallowance by either House of Parliament.

If the Minister decides to apply the public interest exception, proposed subsection 65H(9) requires the Minister to publish a statement on 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.

Some industry groups supported this exemption. For example, APPEA suggested that ‘while such an exemption is sensible it would be beneficial to elaborate on how such decisions would be made in practice’.[249]

However, many other stakeholders were highly critical of the breadth of Ministerial discretion in this proposed ‘public interest’ exemption, including the lack of guidance on what might constitute the ‘public interest’.[250] For example, HSI noted that that there is no definition of ‘public interest’ and expressed concern about the significant ‘potential for misuse of this power’. To support this concern, HSI stated that the existing ‘national interest’ exemption in the EPBC Act has been ‘misused for political reasons’.[251]

The ‘national interest’ test is set out in section 158 of the EPBC Act. Section 158 enables the Minister to exempt a specified person from the application of specified environmental approval requirements under the EPBC Act if the Minister is satisfied it is in the ‘national interest’. In determining the national interest, the Minister may consider Australia's defence or security or a national emergency, including an emergency to which a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020) relates.[252] National interest exemptions are published on the EPBC exemption notices database.[253]

HSI and other stakeholders criticised this existing exemption in section 158, particularly for the breadth of Ministerial discretion which it enables.[254] For example, HSI pointed out the controversial ‘national interest’ exemptions that have been made in the past, such as for the dispersal of Grey Headed Flying Foxes in Bateman’s Bay in New South Wales.[255] HSI were concerned that the ‘public interest is an even lower bar than national interest’.[256]

The Law Council commended the fact that a Ministerial ‘public interest’ determination would be disallowable. However, the Law Council suggested (among other matters) that these provisions should ‘list non-exhaustive criteria to which the Minister must have regard in making this decision’, including the objects of the EPBC Act.[257]

The Law Council and others suggested that an obligation be inserted to require the Minister’s statement of reasons under proposed subsection 65H(9) to include an explanation of the environmental impacts associated with the exception. This would also ensure consistency with recommendation 3(c) of the Final Report.[258]

Scrutiny concerns

The Senate Scrutiny of Bills Committee also commented on proposed section 65H, and in particular, raised concerns about leaving such significant matters, such as the range of matters that must be consistent with a National Environmental Standard (or are exempt from the requirements to be consistent with a standard), to delegated legislation. The Committee queried whether the Bill could be amended to include at least high-level guidance regarding these matters on the face of the primary legislation.[259] The Committee noted that these provisions appear to provide the Minister with a broad power to determine the scope of matters that must be consistent with National Environmental Standards. The Committee also noted that the Explanatory Memorandum contains no justification regarding why it is necessary to allow such significant matters to be set out in delegated legislation.[260]

The Committee therefore requested the Minister's detailed advice as to:

• why it is considered necessary and appropriate to leave the determination of decisions or things that must be consistent with a National Environmental Standard to delegated legislation and
• whether the Bill can be amended to include at least high-level guidance regarding these matters on the face of the primary legislation.[261]

In response, the Minister advised that enabling the Minister to determine which decisions or things under the EPBC Act must not be inconsistent with a National Environmental Standard, or that are subject to the public interest exception, provides flexibility to apply the standards to different decisions or things gradually, as standards are developed and made over time.[262] The Minister also advised that it is not considered appropriate to include guidance in the primary legislation as to these matters, as the content of the determinations will be dependent on the nature and purpose of the standards to be made.[263]

The Scrutiny of Bills Committee noted this advice but reiterated its consistent view that ‘a desire for administrative flexibility is generally not, of itself, sufficient justification for the inclusion of significant matters in delegated legislation.’[264] The Committee considered that:

… the establishment of national environmental standards by legislative instrument, along with the determination by legislative instrument of decisions or things that must be consistent with a national environmental standard, or that may be subject to a public interest exception, provides the minister with broad discretion to determine the scope and operation of the proposed scheme for environmental approvals. The committee considers that such an approach considerably limits the ability of Parliament to have appropriate oversight over this scheme.[265]

The Committee drew its scrutiny concerns to the attention of Senators and left to the Senate as a whole the appropriateness of leaving the determination of decisions or things that must be consistent with a National Environmental Standard, or are exempt from requirements to be consistent with a standard, to delegated legislation. The Committee also drew this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.[266]

Environment Assurance Commissioner

Schedule 2 of the Bill proposes to amend the EPBC Act to establish an Environment Assurance Commissioner (EAC) as a statutory position within the Department of Agriculture, Water and the Environment (the Department).

This Schedule of the Bill broadly aims to implement recommendation 23 of the Final Report of the Samuel Review, which proposed the immediate establishment of a new statutory position of EAC to oversee and audit the performance of decision-makers under the EPBC Act, including the Commonwealth and accredited parties.[267]

As outlined further below, the Final Report broadly proposed that the EAC would:

• be ‘free from political interference’
• have powers akin to those of the Australian National Audit Office (ANAO), including wide access and information-gathering powers and
• be provided with stable and reliable funding and resourcing.[268]

The Final Report suggested the establishment of the EAC would help provide accountability and build community trust and confidence in accredited arrangements.[269]

As outlined in the ‘Position of Major Industry Groups’, industry groups broadly supported the EAC as proposed by the Bill. However, as outlined below, other stakeholders, particularly the Law Council and environment groups, criticised the EAC’s limited powers and lack of resourcing and independence. The Australian Conservation Foundation, for example, described the Bill’s proposed EAC as a ‘toothless tiger’.[270] The extent to which this Schedule of the Bill accords with the EAC as proposed in the Final Report of the Samuel Review is also discussed further below.

Appointment

Under proposed section 501D, the EAC would be appointed by the Governor-General for a period of up to five years. That person cannot be appointed for more than two terms.[271]

A person is not eligible for appointment unless the Minister is satisfied that the person has a high level of expertise in one or more fields relevant to the Commissioner’s functions and that the person does not have any interests (pecuniary or otherwise) that conflict, or could conflict, with the proper performance of the Commissioner’s functions.[272]

Proposed section 501N provides that the EAC is an ‘official’ of the Department under the Public Governance, Performance and Accountability Act 2013 (PGPA Act).[273]

Proposed sections 501D–501M set out the terms and conditions of the Commissioner’s appointment, including requirements for the disclosure of interests (proposed section 501J). These provisions appear to be broadly similar to the terms and conditions provided in other legislation appointing other Commonwealth statutory officials.[274]

Functions and powers

The EAC’s functions are set out in proposed section 501C and include to monitor or audit:

• the operation of bilateral agreements (proposed paragraph 501(1)(a))
• processes for making environmental assessment and approval decisions under the EPBC Act (proposed paragraph 501(1)(b)) and
• actions taken to monitor compliance with the environmental assessment and approval processes under the EPBC Act (proposed paragraph 501(1)(c)).

Other functions may be prescribed by Regulations.[275]

To compare, the Final Report of the Samuel Review proposed the following functions for the EAC:

• oversight of the audit and performance of the Commonwealth including the proposed new Office of Compliance and Enforcement (as proposed in Recommendation 30 of the report)
• oversight of the audit and performance of an accredited party under an accredited arrangement
• investigation of complaints about the performance or operation of decision-makers and
• providing recommendations to the Commonwealth Environment Minister where adverse findings are made
• regular and transparent reporting to Australian Parliament (via the Environment Minister), including tabling reports on the performance of all arrangements, with specified timeframes.[276]

These functions appear to be wider than those proposed by the Bill, although, as noted above, additional functions may be prescribed by Regulation. The Law Council, for example, suggested that proposed section 501C does not appear to enable the auditing of decision-making by the Commonwealth under the EPBC Act generally, or to provide for reporting on the performance of the Commonwealth and accredited parties against the Standards.[277] Similarly, several stakeholders noted that the Bill does not set out a complaints process or procedure, or any kind of ‘whistleblowing’ mechanism.[278] The Law Council considered that the EAC should be afforded the full range of audit functions as proposed in the Final Report.[279]

The Law Council further pointed out that proposed subparagraph 501C(1)(b)(v), which refers to the giving of advice under Subdivision A of Division 4 of Part 11, potentially includes a diverse range of powers to audit and/or monitor actions such as providing foreign aid, managing aircraft operations in airspace, adopting or implementing a major development plan for an airport; or actions authorised by a sea dumping permit or a hazardous waste permit.[280] As the Law Council noted, this ‘could result in the EAC receiving requests to divert resources to these areas’, and is not in line with the Final Report of the Samuel Review.[281]

No review of single decisions

Proposed subsection 501C(3) provides that the EAC is not permitted to monitor or audit a single decision. As the Explanatory Memorandum notes, this would not prevent the EAC undertaking an audit by reference to a ‘sample of decisions’.[282]

This is consistent with the Samuel Review, which considered that the EAC’s functions should not involve resolving ‘individual matters of contention’.[283] At the same time, the review suggested that the EAC should:

… in relation to allegations of project-level non-compliance, include processes to refer the complaint to the appropriate compliance and enforcement authority and to follow up to ensure the complaint is duly investigated.[284]

The Bill’s approach may be considered to accord with similar statutory officials, such as:

• the Inspector-General of Biosecurity, who is not permitted to review only a single performance of a function, or a single exercise of a power, by a single biosecurity official[285] and
• the Inspector‑General of Live Animal Exports, who is not permitted to review only a single performance of a function, or a single exercise of a power, by a single live‑stock export official.[286]

As noted earlier in this Digest, many interest groups expressed concern that the proposed Commissioner would be prevented from looking at individual approval decisions.[287] The Law Council, for example, suggested that this limit on auditing single decisions should be removed to:

… improve the EAC’s responsiveness to issues as they arise, so that he or she is not required to wait for a pattern of inconsistency or non-compliance before being able to audit/monitor a decision maker.[288]

However, the Minerals Council supported this approach as an ‘appropriate balance’, suggesting the power to monitor or audit an individual decision would duplicate existing compliance auditing processes that are ‘well established’.[289]

Information-gathering powers

The Samuel Review suggested that, to assist in fulfilling its audit functions, the EAC should:

… have powers akin to those of the ANAO [Australian National Audit Office], which include wide access and information-gathering powers, including the power to obtain and handle information and documents, conduct interviews and access premises.[290] [emphasis added]

Proposed subsection 501C(4) provides that the EAC may request a person to provide information or documents, or answer questions, if the EAC reasonably believes that the person has information or documents relevant to the performance of his or her functions. However, the EAC has no power to compel or direct a person to provide information, and there appears to be no obligation to respond or consequences for failure to respond to such a request.

In contrast, the Auditor-General Act 1997 provides for a much wider range of information‑gathering powers.[291] In particular, under section 32, the Auditor-General may direct a person to:

• provide any information that the Auditor‑General requires
• attend and give evidence before the Auditor‑General or an authorised official and/or
• produce any documents in the custody or under the control of the person.

The Auditor-General Act also provides penalties for non-compliance with a direction made by the Auditor-General under section 32.[292]

Some stakeholders suggested that the proposed powers of the EAC are too limited and should include powers to compel the production of information.[293] However, the Minerals Council, for example, suggested that the EAC’s power to request information or documents is ‘proportionate’ to the EAC’s role.[294]

Independence

The Final Report of the Samuel Review proposed that the EAC should be ‘independent of government, free from real or perceived political interference’.[295]

Proposed section 501R provides that the EAC is not subject to directions of the Minister in relation to the Commissioner’s functions. However, the Minister would have input into the EAC’s work in several ways.

First, the Minister may request the EAC to perform certain functions under proposed section 501S. The Minister’s request must be in writing, specify the matter to which the request relates, and include reasons for the request.[296] Under proposed subsection 501S(3), the EAC can either agree, or refuse to agree, to the Minister’s request. The EAC must inform the Minister, in writing, of his or her decision on the request and the reasons for the decision.[297]

In addition, the Minister has input into the EAC’s work plans and priorities under proposed section 501P in several ways. First, the Minister must provide the EAC with a written statement of expectations for each financial year.[298] The EAC must have regard to this statement of expectations when preparing its annual work plan, which sets out the EAC’s priorities for that year.[299] In addition, the EAC must provide its annual work plan to the Minister.[300] The Minister may then either agree with the plan, or make a written request for the EAC to make changes to the plan.[301] If the Minister requests changes to the plan, the Minister must include reasons for the changes in the request. The EAC will be required to have regard to any changes requested by the Minister,[302] but is not bound by those requests when finalising the annual work plan. The final annual work plan is given to the Minister, and must be published on the internet, along with the Minister’s statement of expectations, and any requests by the Minister for changes to the work plan (including the reasons for the request).[303]

These provisions appear to be inconsistent with the Samuel Review, which proposed that the EAC should be similar to the Commonwealth Auditor-General.[304] The Auditor-General is an independent officer of the Parliament with responsibility under the Auditor-General Act for auditing Commonwealth entities and reporting to Parliament. Under section 10 of the Auditor‑General Act, the Auditor‑General must have regard to the audit priorities of the Parliament determined by the Joint Committee of Public Accounts and Audit (JCPAA) and any reports made by that Committee.[305] The Samuel Review suggested that, like the Auditor-General, the EAC should not be subject to direction from anyone in relation to whether or not a particular audit is to be conducted, the way in which a particular audit is to be conducted and the priority to be given to any particular matter.[306]

Some stakeholders expressed concern that the Bill as currently drafted does not provide sufficient independence for the EAC.[307] As the Environmental Defenders Office observes in its submission to the Senate Committee inquiry, these provisions provide ‘a clear and active role for the Minister to input and shape annual work plans’ and it is unlikely in practice that the EAC will make plans inconsistent with Ministerial expectations.[308] The Law Council, for example, suggested a range of amendments to increase the independence of the EAC including:

• deleting references in proposed section 501P to the Minister providing a ‘written statement of expectations’ and agreeing with or requesting changes to the EAC’s work plan
• amending proposed section 501S to ensure that if the Minister requests the EAC to carry out additional work and the EAC agrees to do so, the EAC must be additionally resourced to carry out the work over and above his or her identified priorities.[309]

As outlined further below, the EAC’s independence may also potentially be undermined by a lack of resourcing and dedicated staffing.

Resourcing

The Samuel Review proposed that the EAC should ‘be supported by a standing, well-resourced audit function within the Department of Agriculture, Water and the Environment’ and:

… be provided with stable and reliable funding and resourcing over forward budget estimates, including administrative funds to support a team of dedicated audit officers within the Department of Agriculture, Water and the Environment.[310] [emphasis added]

According to the Explanatory Memorandum, the EAC is estimated to cost the Commonwealth no more than $9 million over the next four years, but ‘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’.[311]

Proposed section 501T of the Bill provides that the Secretary of the Department may make the services of APS employees available for the purpose of assisting the EAC to perform his or her functions. In other words, the EAC is dependent on the Department for staffing and has no dedicated staff. With no guaranteed funding or staff, this potentially leaves the EAC vulnerable to the decisions of Departmental officials which the EAC is monitoring and auditing, and creates, at the very least, a perceived risk to the independence of the EAC.

Several stakeholders also expressed concern about this provision and the lack of mandated or guaranteed resourcing for the EAC.[312] The National Environmental Law Association (NELA), for example, suggested that the EAC’s role ‘seems to be more like an internal audit function rather than an independent audit function’.[313] The EDO suggested that ‘to ensure actual independence of the EAC’, departmental staff made available to the EAC would need to be answerable to the EAC and not the Departmental Secretary.[314] The EDO considered that ‘the EAC may be independent in law but may have a heavy influence due to a close relationship with, and dependency on, the Department’.[315]

Delegation

Proposed section 501W enables the EAC to delegate his or her functions or powers to the Departmental Secretary or an SES employee.[316] Some stakeholders suggested that it is not appropriate for the EAC to delegate powers in this way.[317] For example, the Law Council of Australia suggested this proposed section be deleted, as it ‘may undermine the EAC’s independent audit role… [and] create conflicts for Departmental staff being afforded audit functions at the same time as carrying out their operational roles’.[318] The Law Council considered that it ‘would be preferable to ensure that the EAC is fully resourced, without needing to delegate across the Department’.[319]

Reporting

The Final Report of the Samuel Review proposed that the EAC be responsible for publicly reporting on the performance of the Commonwealth and accredited parties. The EAC would report to the Parliament, through the Minister, with reports tabled within a prescribed time frame.[320]

The Samuel Review proposed that the EAC reports would provide advice and recommendations for action to the Commonwealth Environment Minister, where material issues of concern are found. The Samuel Review stated that Minister should be required to publicly respond to the EAC’s advice and recommendations within a reasonable timeframe specified in the Act.[321]

If the EAC conducts an audit under proposed section 501C (as outlined earlier), the EAC must prepare a report and publish that audit report on the internet within 30 business days of completion.[322]

Proposed section 501V provides for the EAC to give the Minister an annual report on the EAC’s activities, which would be tabled in Parliament, either as a separate report, or to be included in the Departmental annual report.

There is no requirement in the Bill for audit reports to be provided to the Minister or tabled in Parliament, nor for the Minister to respond to any of the EAC’s reports. This was a concern for several stakeholders.[323] For example, the NELA noted that the Bill requires the Commissioner to give annual reports to the Minister, but ‘these reports only relate to the Commissioner’s activities, rather than the performance of Commonwealth and accredited parties against national environmental standards as recommended in the Samuel Review report’.[324] As the Wentworth Group of Concerned Scientists stated:

… it is unclear what action would result from Commissioner’s audits, should unsatisfactory processes or outcomes be identified.[325]

Calls for a strong, independent regulator

As noted earlier in this Digest, the Interim Report of the Samuel Review recommended a key reform should be the establishment of a ‘strong, independent cop on the beat’: that is, a ‘modern, independent regulator responsible for monitoring, compliance, enforcement and assurance’.[326] However, the establishment of an independent regulator was immediately ruled out by the Environment Minister, Sussan Ley.[327]

As such, the Final Report of the Samuel Review instead recommended the immediate establishment of an ‘Environmental Assurance Commissioner’, with functions for monitoring and/or auditing certain aspects of the operation of the EPBC Act. This differs considerably from an independent regulator which would have a stronger range of compliance and enforcement powers (including coercive investigation or enforcement powers).[328]

In particular, the EAC does not directly monitor compliance with the EPBC Act, but rather can monitor or audit the actions taken by others to monitor compliance with environmental assessment and approval provisions of the EPBC Act. As outlined earlier, the information-gathering powers of the proposed EAC are also quite limited. In addition, while the EAC is an independent statutory official, and is not subject to direction by the Minister, he or she will be dependent on the Department for staffing and has no guaranteed funding allocation.

Several stakeholders expressed support for the establishment of an independent Commonwealth Environment Protection Authority as their preferred approach to ensure strong, independent compliance and enforcement.[329] For example, HSI and WWF-Australia pointed to the Commonwealth Environment Protection Authority Bill 2021, introduced as a private Member’s Bill by Mr Andrew Wilkie, as a model to establish a Commonwealth Environment Protection Authority with a wide range of compliance and enforcement powers.[330]

Concluding comments

The Bill, combined with the Streamlining Bill currently before Parliament, purports to implement key reforms proposed by the Final Report of the ten-year independent statutory review of the EPBC Act conducted by Professor Graeme Samuel. This includes setting out a framework for National Environmental Standards to support the delegation of environmental approval powers to the states and territories through bilateral agreements. The Bill also establishes an Environmental Assurance Commissioner to monitor and audit the operation of bilateral agreements, as well as Commonwealth environmental assessment and approval processes.

While industry groups are largely supportive of the Bill, the Bill has attracted considerable criticism from environmental, scientific and legal organisations. A key concern for many stakeholders has been the absence of a comprehensive government response to the Final Report of the Samuel Review. Although the Samuel Review recommended reform be pursued in staged tranches, it warned the Government not to ‘cherry pick’ from its ‘highly interconnected’ recommendations. However, this Bill would only partially implement a handful of the ‘tranche 1’ reforms identified in Final Report.[331]

The Bill is also not entirely consistent with the recommendations that it is implementing. While the Bill sets out an overarching framework for National Environmental Standards, many stakeholders were concerned, among other matters, that the detail of the content and application of standards is left largely to the Minister’s discretion. The draft National Environmental Standards recently published by the Government reflect the existing requirements of the EPBC Act and not the National Environmental Standards recommended in the Final Report.

The Bill’s proposed Environmental Assurance Commissioner would oversee and audit the performance of decision-makers under the EPBC Act, including the Commonwealth and accredited parties. Again, this proposal does not fully reflect the recommendations of the Final Report of the Samuel Review. Stakeholders were concerned that the Commissioner would be dependent on the Department for staffing, be subject to a considerable amount of Ministerial intervention, and have very limited powers and resources. These concerns were compounded by the absence of any provisions in the Bill to implement the Final Report’s associated recommendations to reform the compliance and enforcement mechanisms in the EPBC Act.[332]