8 March 2021
What you need to know
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The Commonwealth Government has introduced into Parliament the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021, which aims to implement amendments to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) following the Independent Review of the Act.
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The proposed reforms create a framework for the introduction of National Environmental Standards and the independent role of the Environment Assurance Commissioner.
What you need to do
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As these reforms progress, organisations will need to be mindful of how the introduction of new National Environmental Standards may affect the referral, assessment and approval process under the EPBC Act.
On 25 February 2021, the Commonwealth Government introduced the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 (the Bill) into Parliament. The Bill proposes amendments to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) following the release of the Final Report of the Independent Review of the Act undertaken by Professor Graeme Samuel (the Samuel Review).
The Bill responds to some of the recommendations for immediate reform made in the Samuel Review, and seeks to:
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establish a framework for the making, varying, revoking and application of National Environmental Standards;
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apply the National Environmental Standards to bilateral agreements with States and Territories; and
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establish an Environment Assurance Commissioner to monitor and audit bilateral agreements and other processes under the EPBC Act.
National Environmental Standards
Schedule 1 of the Bill proposes to introduce a new Chapter 3A into the EPBC Act which will allow the Minister for the Environment to make, vary and revoke National Environmental Standards (Standards).
The introduction of Standards was one of the key recommendations of the Samuel Review. The intention of the Standards, as proposed by the Samuel Review, was to introduce strong, measurable and legally enforceable standards, made and implemented by the Minister for the Environment, to define the outcomes and underpin and uplift the operation of the EPBC Act.
The first Standards made under these new provisions cannot be disallowed by Parliament, and must be reviewed within 2 years of their commencement. Following this, reviews of the Standards must occur every 5 years.
The Bill requires all decisions under the EPBC Act to be consistent with the Standards. The Minister for the Environment can make decisions inconsistent with the Standards, but only when the Minister is satisfied that it is in the public interest.
Schedule 1 of the Bill also amends existing sections of the EPBC Act to apply the Standards to bilateral agreements with States and Territories. Relevant assessments and approvals processes of States and Territories will be required to be consistent with the Standards, which is intended to standardise the assessment and approval process across jurisdictions.
Environment Assurance Commissioner
Schedule 2 of the Bill inserts a new Part 18A into the EPBC Act, which creates the position of the Environment Assurance Commissioner (the Commissioner). Again, this is in response to the Samuel Review's recommendation to provide strong and independent oversight of the arrangements under the EPBC Act.
The Commissioner's functions under the new provisions would include monitoring and auditing of the:
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operation of bilateral agreements with States and Territories; and
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Commonwealth process for making and enforcing decisions, including the processes for making controlled action decisions, assessing relevant impacts and the approval of controlled actions.
The Commissioner's role would be to oversee processes under the EPBC Act, and not to review individual decisions or become an additional review step in any appeal process.
The Commissioner is proposed to be an independent role within the Commonwealth Department of Agriculture, Water and the Environment, appointed by the Governor-General for a term of up to 5 years. The Commissioner will not be subject to directions from the Minister.
The Commissioner's work plan for the year will be made public, along within any audit reports produced by the Commissioner. The Commissioner must also produce an annual report that will be tabled in Parliament and be publicly available.
How the Bill Responds to the Samuel Review
Although the Bill has been introduced in response to the Samuel Review, there are some departures from Professor Samuel's recommendations.
The Samuel Review recommended that the initial National Environmental Standards take the form appended to the Samuel Review. In February 2021, Interim National Environmental Standards were leaked to the media. These were considerably different to the draft Standards in the Samuel Review, and were criticised by the federal opposition, crossbench senators, State MPs and environmental groups as being inadequate and largely reproducing the existing requirements of the EPBC Act. Further, the Samuel Review recommended that the first review of any Interim Standards occur within 12 months, whereas the Bill allows 2 years.
The role of the Commissioner is similar to that recommended by the Samuel Review, with the exception that the Bill does not explicitly require the Commissioner's annual report to assess the performance of the Commonwealth and accredited parties under bilateral agreements against the Standards. The Bill instead requires the Commissioner to give an annual report of "the Commissioner's activities during that year".
Other recommendations for immediate action in the Samuel Review, for example, replacing the Indigenous Advisory Committee with the Indigenous Engagement and Participation Committee and adopting the National Environmental Standard for Indigenous engagement and participation in decisions making, have not been addressed by this Bill.
In the second reading speech for the Bill, the Minister the for Environment noted that this is the first stage of EPBC Act reform, and that she is committed to working through the recommendations of the Samuel Review in consultation with business, industry, environment groups, farmers, Indigenous Australians and States and Territories.
Next Steps
The Bill was introduced in the House of Representatives on 25 February 2021. The Senate referred the Bill to the Senate Environment and Communications Legislation Committee, which is due to report by 1 June 2021.
This current Bill follows the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (Streamlining Bill), which was tabled in Parliament in August 2020. The Streamlining Bill aims to remove potential obstacles to the Commonwealth delegating its EPBC Act assessment and approval powers to the States and Territories. The Streamlining Bill is currently before the Senate, and a report by Senate Environment and Communications Legislation Committee was released on the Streamlining Bill on 27 November 2020.
The Senate Committee recommended that the Bill be passed subject to the Explanatory Memorandum being amended to clarify that bilateral agreements will be underpinned by strong Commonwealth-led National Environmental Standards. There were dissenting reports from Labor, the Greens and the Cross-bench.
For further information, please contact:
Jane Hall, Ashurst
jane.hall@ashurst.com
