Chapter 2Key provisions of the bills
2.1This chapter outlines the key provisions of the Nature Positive (Environment Protection Australia) Bill 2024 (the EPA bill); the Nature Positive (Environment Information Australia) Bill 2024 (the EIA bill); and the Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024 (theAmendmentbill) (collectively the bills).
2.2Submitter views on the provisions, as well as broader perspectives on these reforms, are set out in Chapters 3 to 5.
Nature Positive (Environment Protection Australia) Bill 2024
Establishment of the Environment Protection Australia (EPA) and CEO of the EPA
2.3The EPA Bill proposes to establish a new statutory Commonwealth entity known as Environment Protection Australia (EPA). The EPA bill Explanatory Memorandum (EM) states that the EPA would 'support the delivery of accountable, efficient, outcomes‑focussed and transparent environmental regulatory decision-making.'
2.4The bill would also establish the role of the CEO of the EPA, who would be assisted by the EPA in the performance of its functions. These functions would include regulatory activities such as:
undertaking education, compliance and enforcement activities;
issuing permits and licences; and
undertaking delegated activities, which may include assessments and decision-making about development proposals, including approval conditions.
2.5The CEO's functions are to be conferred on them under a range of Commonwealth environmental laws including the:
Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act);
Environment Protection (Sea Dumping) Act 1981;
Hazardous Waste (Regulation of Exports and Imports) Act 1989;
Ozone Protection and Synthetic Greenhouse Gas Management Act 1989; Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995; and Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Act 1995;
Product Emissions Standards Act 2017;
Recycling and Waste Reduction Act 2020;and
Underwater Cultural Heritage Act 2018.
2.6The CEO would also advise and assist the Minister for the Environment and Water (the Minister) including to make recommendations on opportunities to improve regulation under laws that confer functions on the CEO.
2.7The EPA is expected to be established on 1 July 2025 on the bill's commencement, if passed. It would initially operate within DCCEEW to administer current environmental laws.
Transparency and accountability mechanisms
2.8The CEO would be subject to a number of mechanisms to provide transparency and accountability, while assuring the independence of the role.
2.9The Minister would have the ability to issue the CEO with a Statement of Expectations setting out the Minister's expectations of the CEO and EPA by providing 'greater clarity about government policies and objectives relevant to EPA, including the policies and priorities the agency is expected to observe in conducting its operations'. However, a Statement of Expectations from the Minister cannot direct the CEO in the performance of its powers or exercise of its functions.
2.10The CEO would be required to give the Minister a Statement of Intent in response, with both the Statement of Expectations and the Statement of Intent to be published.
2.11The CEO would also be required to establish and maintain electronic registers of decisions that would be available on the EPA's website. As outlined in the EM:
Transparency about the decisions made by EPA would promote public confidence in the regulator and enable consistency and integrity in the application of the environmental Acts on the regulated public.
2.12A decision of the CEO is a 'registerable decision' if the decision is prescribed as such by any Act or by a legislative instrument made under the proposed EPA Act.
2.13The EPA bill provides that in certain circumstances the CEO can suspend the operation of a register, for example, to prevent, mitigate or minimise abuse of criminal activity involving the register. The CEO would also be empowered to not publish information on a register if the CEO considers its publication would, or could be reasonably expected to:
endanger public safety;
cause damage to a matter protected by Part 3 of the EPBC Act [matters of national environmental significance (MNES)]; or
cause damage to the security, defence or international relations of Australia.
Appointment of the CEO
2.14The EPA bill provides that the CEO would be an independent statutory appointment, appointed by the Governor-General for a fixed term. Such appointments would usually be made on the recommendation of the Minister or the government of the day.
2.15In appointing the CEO, the Minister would need to be satisfied that the appointee has the requisite knowledge or experience in public sector administration or governance and regulation, as well as in one or more of the following areas:
conservation of biodiversity;
ecologically sustainable development;
heritage;
Indigenous affairs;
law;
law enforcement;
natural resource management; or
any other matters as prescribed by the rules.
2.16As outlined in the EM, these areas of knowledge or experience are considered appropriate:
…as they directly relate to the functions and powers conferred on the CEO under Commonwealth environmental legislation, while balancing the need to have an individual who has sufficient knowledge and experience to lead a Commonwealth statutory body.
2.17A number of other provisions set out the proposed arrangements for the CEO's appointment including:
that the CEO is to be appointed on a full-time basis and must not be re‑appointed more than once;
that the CEO's appointment period must not exceed five years;
acting appointments, remuneration, leave of absence, other paid work and resignation arrangements.
2.18The EPA bill also sets out the circumstances in which the Governor-General may terminate the appointment of the CEO. These circumstances include misbehaviour, physical or mental incapacity, bankruptcy and other financial circumstances, engaging in paid work outside the duties of the CEO's office without the Minister's approval, and failure to disclose material personal interests as outlined in the Public Governance, Performance and Accountability Act 2013.
Establishment of an advisory group
2.19The EPA bill would enable the CEO to establish an advisory group that would 'at the request of the CEO, provide advice or assistance in relation to the performance of the CEO's functions and the exercise of the CEO's powers'.
2.20In appointing a person to the advisory group, the CEO would need to be satisfied that the person has the relevant skills, expertise or Indigenous cultural knowledge.
2.21Where considered appropriate by the CEO, the CEO would be able to publish the advice of the advisory group (or one or more of its members) with respect to the performance of the CEO's functions or exercise of its powers. This discretion is intended to support transparency, while balancing the need to protect information that is not appropriate to be made public such as 'advice relating to compliance matters' or which 'may compromise environmental protection of a protected matter'.
2.22Under the EPA bill, the CEO would be required to consider this advice where it is provided in relation to a decision, however the CEO would not be bound by it. This recognises the need for the CEO to consider 'a range of information in making decisions in accordance with the requirements of relevant legislation'.
Periodic review of the EPA's administration
2.23The EPA bill provides for a statutory independent review of the EPA's administration to be completed within five years of the EPA's establishment, and subsequently on a five-yearly basis.
2.24The review would consider whether, and to what extent:
the EPA has supported the delivery of accountable, efficient, outcomes‑focused and transparent environmental regulatory decision-making; and
the CEO and EPA have met the expectations set out in any statements of expectations given by the Minister.
2.25To support transparency and accountability, the reviewer would be required to provide the Minister with a report on the review, with the Minister responsible for publishing the review, providing it to the CEO and tabling it in each House of Parliament within 15 sitting days after receiving the report.
2.26Submitter feedback on the establishment of the EPA is set out in Chapter 3.
Nature Positive (Environment Information Australia) Bill
Establishment of the Head of Environment Information Australia
2.27The EIA bill proposes to establish a statutory position of the Head of Environment Information Australia to provide 'better, more readily available and useable data and reporting on the environment' and 'underpin more streamlined and informed environmental decisions that reduce negative impacts, and increase positive impacts, on nature.'
2.28The key statutory functions of the HEIA would include:
providing the Minister, the EPA CEO, and the public with access to high‑quality environmental information and data;
identifying and maintaining a public register of national environmental information assets that are critical to regulatory decision-making;
developing and implementing a monitoring, evaluation and reporting framework, including setting a baseline, to report on Australia's progress towards nature positive;
preparing and publishing a State of the Environment report every two years; and
establishing and maintaining environmental economic accounts.
2.29The HEIA would be an Australian Public Service (APS) employee, appointed at Senior Executive Service (SES) level within DCCEEW.
2.30Staff assisting the HEIA may be APS employees within DCCEEW or external contractors engaged by the Secretary.
2.31The HEIA is expected to be established on 1 July 2025 on the EIA bill's commencement, if passed. The EIA has already been created within DCCEEW.
Independence of the HEIA
2.32The Minister described the HEIA as 'an independent position with a legislative mandate to provide environmental data and information' and 'transparently report on trends in the environment'.
2.33The EIA bill outlines the proposed parameters of the HEIA's independence, stating that the HEIA would not be subject to the direction of the Minister, the Secretary, or anyone else, in relation to:
developing and implementing the nature positive monitoring, evaluation and reporting framework;
preparing and publishing State of the Environment reports;
establishing and maintaining environmental economic accounts; and
other functions as prescribed by the rules.
Information gathering powers
2.34The HEIA would draw on a wide range of information sources, including 'scientific bodies, academic institutions, project proponents, environmental groups and Commonwealth, State and Territory regulators'.
2.35The HEIA may request information, advice or documents relating to the HEIA's role from any person or body. The information gathering powers of the HEIA's are non-coercive. Bodies and individuals cannot be compelled to provide data or information to the HEIA.
2.36The EIA bill includes a protective framework which would seek to balance the appropriate use and disclosure of information against the protection of sensitive information. The sharing of sensitive information would be enabled for authorised purposes, including:
to assist a commonwealth, state or territory government body to perform its functions;
to assist with enforcement of laws;
to reduce a serious risk to human health; and
to reduce a serious risk to the environment.
2.37There are provisions for a range of civil penalties to be imposed where use or disclosure of information occurs other than as authorised.
National environmental information assets
2.38The HEIA would have the power to declare particular sources of information to be national environmental information assets and would be required to publish a register of these assets online.
2.39The public declaration of national environmental information assets is intended to 'provide transparency, certainty and accountability around their management and availability' and the impact of any changes to those assets on regulatory decision making.
2.40The EM notes that the EIA bill would not change who owns, controls or maintains a declared national environmental information asset, nor impose any obligations on an asset holder.
2.41The EIA bill, however, contains provisions that would enable the Minister to make rules to prescribe the circumstances in which an asset holder may notify the HEIA of proposed changes to the content, availability, or accessibility of an asset.
Nature positive monitoring, evaluation and reporting framework
2.42The EIA bill defines 'nature positive' as 'an improvement in the diversity, abundance, resilience and integrity of ecosystems from a baseline.' The baseline from which achievements would be evaluated is to be determined by the HEIA by 31 December 2025.
2.43The HEIA would be tasked with developing and implementing a monitoring, evaluation and reporting framework that they would use 'to gather information about, and assess and publicly report on, whether and to what extent nature positive is being achieved' at a national level.
2.44In assessing whether nature positive is being achieved, the HEIA would consider 'whether there has been an improvement in the diversity, abundance and resilience of species that form part of ecosystems.'
2.45The framework would be complemented by national commitments, goals and strategies for achieving nature positive. such as the Threatened Species Action Plan and National Biodiversity Strategy and Action Plan.
State of the Environment reports
2.46The EIA bill would require the HEIA to provide biennial State of the Environment reports, containing information and analysis of trends based on standardised, high quality national data drawn from the monitoring, evaluation and reporting framework.
2.47State of the Environment reports would also be required to draw on the knowledge and insights of experts in environmental science, as well as Aboriginal and Torres Strait Islander peoples' knowledge of land management and biodiversity conservation.
2.48The Minister would be required to table a response to each State of the Environment report within six months of its publication. Responses would be required to specify environmental targets to be achieved and the timelines for their achievement. These targets would be defined as national environmental goals.
2.49The EM to the EIA bill notes that 'requiring the Government to publicly commit to its environmental goals and respond to the findings of the State of the Environment reports' would increase public accountability. It proposes that this establishes an iterative process of drawing on evidence of current environmental conditions and progress towards achieving environmental goals, while informing actions to bring about further improvements.
Environmental economic accounts
2.50The EIA bill would give the HEIA responsibility for establishing and maintaining environmental economic accounts. These would be statistical accounts that describe the condition of the environment and its relationship with the economy by organising statistics and data in a standardised framework using a common set of accounting concepts, structures, rules and principles.
2.51Information drawn from environmental economic accounts would provide governments with 'a clearer understanding of environmental impacts, both positive and negative, in economy-wide decision making.'
2.52Environmental economic accounts would be established by legislation in order to highlight their fundamental role in environmental reporting and understanding trends. This would also raise the prominence of environmental economic accounting to the level of the Australian System of National Accounts.
2.53The HEIA would be assisted in establishing and maintaining the accounts produced by the Australian Bureau of Statistics, and may also maintain environmental economic accounts established by another organisation.
2.54A statement of one or more of the environmental economic accounts would be required to be provided to the Minister at least once every 12 months. The Minister would be required to table the statement within 15 sitting days of receiving it.
Periodic reviews of the EIA's administration
2.55The EIA bill would establish a framework for five-yearly reviews of the administration of the EIA. The Minister would be required to appoint an independent reviewer to consider whether, and to what extent, the proposed EIA Act had improved the availability and accessibility of high quality national environmental information and data and improved accountability for matters that affect the environment through regular, comprehensive and transparent reporting.
2.56The Minister would be required to table the report of each five-yearly review within 15 sitting days of receiving it. A government response to each review would also be required to be tabled by the Minister within six months.
2.57Submitter feedback on the establishment of the EIA and the HEIA is discussed in Chapter 4.
Nature Positive (Environment Law Amendments and Transitional Provisions) Bill
2.58The Amendment bill comprises 13 schedules and provides the transitional provisions to support the establishment of the EPA and the Head of the EIA.
2.59This includes direct consequential amendments to the:
Environment Protection (Sea Dumping) Act 1981;
Hazardous Waste (Regulation of Exports and Imports) Act 1989;
Ozone Protection and Synthetic Greenhouse Gas Management Act 1989; Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995; and Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Act 1995;
Product Emissions Standards Act 2017;
Recycling and Waste Reduction Act 2020;and
Underwater Cultural Heritage Act 2018.
2.60In addition, proposed amendments to the EPBC Act would:
strengthen compliance and enforcement regulatory tools by expanding and updating audit powers, and introducing environment protection orders;
increase criminal and civil penalties for contraventions and introduce a civil penalty formula;
confer compliance and enforcement functions and powers and species permitting to the CEO of EPA;
provide that a proponent can object to the 'stopping of the clock' when the Minister requests additional information to enable the Minister to make an informed decision about a proposed action under the EPBC Act;
provide for the Minister and Secretary to delegate their powers and functions to the CEO and EPA staff; and
confer compliance and enforcement powers and functions to the Director of National Parks, where the relevant activity relates to a Commonwealth reserve or conservation zone.
2.61The following section outlines the key provisions in the Amendment bill relating to the proposed transfer of compliance and enforcement powers to the CEO of the EPA. These include strengthened compliance and enforcement powers such as proposed increases in criminal and civil penalties, the ability to issue environment protection orders, expanded audit powers and changes to 'stop the clock' provisions.
Transfer of administrative, compliance and enforcement powers to the CEO
2.62The Amendment bill sets out the transitional provisions to support the establishment of the EPA. These include consequential amendments to eight environmental Acts and to specific provisions of the EPBC Act. These would confer functions onto the CEO of the EPA on its establishment on 1 July 2025, subject to the bills' passage.
2.63The Amendment bill also proposes to amend the eight environmental Acts to provide the CEO of the EPA with functions relating to the granting of permits or licences, appointment of authorised officers or inspectors, the exercise of existing regulatory powers under the Regulatory Powers (Standard Provisions) Act 2014, and some other functions and powers.
2.64The Amendment bill would also amend various provisions of the EPBC Act to transfer responsibility for certain functions and compliance and enforcement powers from the Minister or Secretary to the CEO.
2.65Notably, these include:
issuing evidentiary certificates in relation to a contravention of a civil penalty provision under the requirements for environmental approvals;
granting (and refusing to grant) permits for activities which may kill, injure, take, trade, keep or move a member of a listed species in or on a Commonwealth area;
appointing inspectors to ensure compliance, investigate non-compliance and to enforce the provisions of the EPBC Act, including through arrangements with the states and territories; and
undertaking compliance and enforcement activities relating to remedying environmental damage or dealing with the detention of suspected foreign offenders.
Stronger compliance and enforcement powers
2.66The Amendment bill also includes a range of provisions that would introduce stronger compliance and enforcement powers. These include increased penalties for non-compliance, new powers to issue environment protection orders (EPOs), expanded audit powers, and proposed 'stop the clock' amendments.
2.67These provisions would commence the day after the proposed Transitional Provisions Act receives Royal Assent, irrespective of whether the EPA bill and EIA bill also pass the Parliament and receive Royal Assent 'to ensure that they can be utilised immediately in combating non-compliance with the EPBC Act'.
2.68Compliance and enforcement powers in the EPBC Act, including the new audit and EPO powers, would transfer to the CEO on establishment of the EPA.
2.69The Amendment bill would also confer key powers directly onto the Director of National Parks.
Increased penalties for non-compliance
2.70The EPBC Act currently contains a range of provisions, the contravention of which can attract criminal penalties or a civil pecuniary penalty. Currently, the maximum penalty for breaching the EPBC Act is:
a civil penalty of up to 5,000 penalty units for an individual or up to 50,000 penalty units for a body corporate;
a criminal penalty of up to 7 years imprisonment and/or 420 penalty units.
2.71The Amendment bill proposes to increase the maximum monetary penalty for certain criminal offence provisions and to introduce a new civil penalty formula for certain civil penalty provisions.
2.72With respect to criminal penalties, the criminal penalties associated with contravening a prohibition of certain parts of the EPBC Act would be increased to 1,000 penalty units, reflecting the 'seriousness of these contraventions'.
2.73A new civil penalty formula would be introduced for contraventions of the more serious civil penalty provisions of the EPBC Act. These include where a person or body corporate takes an action that has a significant impact on an MNES without a requisite approval, or contravenes a condition of an approval.
2.74Under this formula, the maximum civil penalty that a court could order for a contravention of the requirements relating to MNES or to approvals of actions under the EPBC Act would be calculated based on either or both of the financial benefits derived and detriment avoided as a result of the misconduct, or for bodies corporate, their annual turnover:
a person in breach of a provision where a civil penalty applies, might be required to pay the greater of 5,000 penalty units, or the value of the benefit derived and/or detriment avoided multiplied by three; and
a body corporate might be required to pay the greater of 50,000 penaltyunits, the value of the benefit derived and/or detriment avoided multiplied by three, or 10 per cent of their annual turnover 12 months before the breach (up to a maximum of 2.5 million penalty units).
2.75As stated in the EM, the proposed civil penalty formula is modelled on comparable schemes in Commonwealth legislation targeting financial crime such as the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001. It is 'intended to act as an effective deterrent for environmental misconduct that is seen as a 'cost of doing business' by high-net-worth-entities', recognising the seriousness of environmental damage and its similar impact as financial crime.
Expanded audit powers
2.76Audit powers would also be expanded through the introduction of compliance audits and updates would be made to directed environmental audit powers. These powers would transfer to the CEO when the EPA is established as an independent statutory authority.
2.77Compliance audits would be used to monitor compliance with the relevant approval, permit, permission, exemption, or order. A compliance audit would be able to be undertaken by an inspector or a registered auditor when required by the Minister. Audits could be conducted without notice, however, the auditor would need to provide the relevant person with a description of the scope of the audit.
2.78Directed environment audits currently allow the Minister to issue a person with a notice requiring them to conduct an environmental audit. That person must then appoint an auditor to conduct the audit in accordance with that notice.
2.79Directed environment audits are currently limited in the EPBC Act to the holder of an environmental authority. The Amendment bill would expand this to allow directed environmental audits to apply to persons who are subject to an EPO, a conservation order, a remediation determination, or a remediation order.
Environment Protection Orders
2.80The Amendment bill would also introduce new powers for the Minister (and subsequently the CEO of the EPA) to issue EPOs that could be used to address, prevent, treat and mitigate imminent significant environment risks and harm.
2.81These could be issued to a person or a body corporate to secure compliance with the EPBC Act, or to take necessary measures to investigate, prevent and control actions. They are intended for use in response to urgent circumstances where there is an imminent threat of serious damage to a protected matter, or where the damage has already occurred. These proposed orders are based on comparable orders already used in the States and Territories.
2.82Prior to issuing an EPO, the Minister must reasonably believe that a person or body corporate has contravened or is likely to contravene the EPBC Act or regulations, or a condition of an environmental authority under which a person is approved to take an action.
2.83An EPO would be revoked when the Minister reasonably believes that it is no longer necessary for the purposes for which it was issued or would otherwise lapse if a timeframe is specified in the EPO.
2.84Penalties would apply for not complying with an EPO, or for hindering or obstructing someone else from complying with an EPO. The maximum penalty for the offence would be 1,000 penalty units, with a body corporate liable for five times this amount as a maximum penalty.
2.85The Amendment bill also provides that there would be no provision for a person who is subject to an EPO to have the order reviewed on its merits. The EM states that this is 'necessary and appropriate because of the urgency of the circumstances in which an environment protection order would be issued. Similarly, the Minister would not be required to observe any requirements of the natural justice hearing rule in relation to the issue or variation of an EPO, however a person would be able to seek judicial review of a decision to issue or vary an EPO.
Changes to 'stop the clock' provisions
2.86The EPBC Act currently includes a number of 'stop the clock' provisions which have the effect of extending the timeframe for the referral, assessment and approval of actions that have, may have or are likely to have a significant impact on protected matters or the environment generally.
2.87These provisions provide that where further information is requested, the time between the request being made and the time the information is provided to the decision-maker is not counted for the purposes of the time period for making the particular decision (that is, 'the clock is stopped').
2.88The 'stop the clock' amendments would require the Minister to provide notice of a request for further information and the reason for the request. Where further information is needed, proponents would have up to five business days to decide whether decision-making timeframes should stop, while that information is sought.
2.89The Amendment bill EM outlines that these changes 'would give proponents a greater understanding of why additional information is requested and a greater say in the statutory timeframe.'
2.90Submitter feedback on the key provisions of the Amendment bill is outlined in Chapter 5.