Background

On Thursday 25 February, the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 was introduced into Federal Parliament.

The Bill proposes amendments to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to introduce a head power to set National Environmental Standards and establish an independent Environment Assurance Commissioner following recommendations from the Final Report of the Independent Review of the EPBC Act, publicly released 28 January 2021.

Legally enforceable National Environmental Standards

Under the Bill, a framework will be established for the creation, amendment, implementation, and revocation of National Environmental Standards. These Standards will be developed in consultation with science, Indigenous, environmental, and business stakeholders; the community; and states and territories.

National Standards will underpin bilateral agreements and be subject to review within two years of commencement, followed by five-yearly subsequent reviews. The results of these reviews will be reported to the Commonwealth Environment Minister and published on the Department of Agriculture, Water, and the Environment (DAWE) website.

All decisions or ‘things’ done under the EPBC Act are not to be inconsistent with National Standards; this includes, but is not limited to, policies, plans, programs, and funding. An exemption for matters of public interest is proposed, where, at the discretion of the Commonwealth Environment Minister, a decision or ‘thing’ considered in the public interest may be undertaken which is inconsistent with the Standards. A statement of reasons is required to be published by the Minister when this occurs.

Where a bilateral agreement is in place, the creation, amendment, or revocation of a National Standard requires the Commonwealth Environment Minister to notify the State Environment Minister, and request advice on whether any bilaterally accredited system or process is inconsistent with the Standard as created or amended (excluding minor variations). Transitional arrangements are to be detailed in each National Standard.

When a National Standard is first made, it is considered an ‘interim’ Standard until it has undergone its first review. Interim Standards will not be disallowable in Parliament, variations and subsequent National Standards will be subject to disallowance.

Independent Environment Assurance Commissioner

Under the Bill, an Environment Assurance Commissioner (EAC) will be established to undertake transparent monitoring and / or auditing of the operation of bilateral agreements and Commonwealth processes under the EPBC Act for making and enforcing approval decisions. The EAC is not to monitor or audit individual decisions.

Appointed by the Governor-General, the EAC will be independent of Government and supported by DAWE staff. The EAC will be appointed on a full-time or part-time basis for a term not exceeding 5 years and not more than two terms.

Taking into consideration a statement of expectations provided by the Commonwealth Environment Minister, the EAC is to develop and publish an annual audit plan. All audit reports are to be published within 30 days of completion, and an annual report of EAC activities is to be provided to the Commonwealth Environment Minister each financial year and made publicly available.

Establishment of the EAC is currently estimated to cost the Commonwealth $9 million over the next four years.

See the Explanatory Memorandum for further information and context on the Bill.

CME Position

CME supports the introduction of a head power to set National Environmental Standards and ensure that Standards are legally enforceable. CME supports the Government’s Interim National Standards (the Interim Standards) as an accurate reflection of the current settings of the EPBC Act and associated policies.

It is appropriate for the Interim Standards to accurately reflect the current settings of the EPBC Act under which projects are assessed. Any future enhancement of these Standards must be subject to detailed consultation, in line with considered reforms to the Act, to ensure they deliver on their intent and avoid creating unintended and unworkable conditions.

CME supports the introduction of an independent assurer responsible for transparent oversight of compliance with the National Environmental Standards.

Under a devolved decision-making model, the role and function of an independent assurer must complement (not duplicate) the compliance, enforcement, and assurance activities of accredited states / territories. Duplication of compliance and enforcement effort at the Commonwealth level would reduce administrative efficiency and impose additional unnecessary regulatory burden and costs.

CME strongly supports ‘single touch’ approvals under a devolved decision-making model (proposed Commonwealth-WA bilateral), supported by the above checks and balances.

The Government’s proposed Interim Standards, and corresponding EPBC Act amendments proposed under this Bill, in combination with the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020, present an immediate opportunity to establish effective and robust reform. Devolution to the States under a ‘single touch’ approvals system can effectively streamline environmental assessments whilst maintaining environmental protections. There are currently more than $100 billion of projects in the pipeline across the Western Australia resources sector alone, which could be brought forward up to 6-12 months under the proposed streamlining reforms.