Bills Digest No. 5 2002-03
National Environment Protection Council Amendment Bill
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
National Environment Protection
Council Amendment Bill 2002
26 June 2002
House: House of Representatives
Portfolio: Environment and Heritage
Sections 1 to 3
commence on Royal Assent. However, the operational sections of the
Bill (schedule 1) commence on a day to be fixed by proclamation, or
twelve months after Royal Assent, which is the earlier.
The amend the National Environment
Protection Council Act 1994 so as to:
- enable the NEPC Secretariat to provide support and assistance
to other environment-related ministerial councils;
- provide a simplified process for making minor variations to
national environment protection measures; and
- require five-yearly reviews of the Act.
Schedule 4 of the 1992 Intergovernmental
Agreement on the Environment (IGAE) provided for the
establishment of a national body to make certain nationally
consistent measures for the protection of the environment. The
schedule also provided for legislation to be developed:
which will enable the Commonwealth and State
Parliaments to authorise the [body] to establish any measures. The
legislation will also establish mechanisms for the application of
measures in the States. The legislation will ensure that any
measures established by the [body]...will apply throughout
Australia, as a valid law of each jurisdiction.(1)
The Commonwealth passed the National
Environment Protection Council Act (NEPCA) in 1994, with
corresponding 'mirror' legislation being made in the other
jurisdictions at the same time.(2) Membership of the
NEPC is made up of Commonwealth, State and Territory Ministers (not
necessarily environment Ministers). It is currently chaired by the
Commonwealth Environment Minister, the Hon David Kemp. The NEPC is
supported by an officials-level Committee. Secretariat and
operational support functions are performed by the NEPC Service
Council. Both the Committee and the Service Council were
established by the NEPCA.
In June 2001, the Council of Australia
Governments established the Environment Protection and Heritage
Council. Under this arrangement, the NEPC effectively became a
constituent part of the new Ministerial Council, but retained its
identity as a statutory body with its powers and functions deriving
from the NEPCA.
Section 14 of the NEPCA sets out the
environmental issues the NEPC may address through the making of
national environment protection measures, or NEPMs. These are:
- ambient air quality;
- ambient marine, estuarine and fresh water quality;
- the protection of amenity in relation to noise, but only if
differences in environmental requirements relating to noise would
have an adverse effect on national markets for goods and
- general guidelines for the assessment of site
- environmental impacts associated with hazardous wastes;
- the re-use and recycling of used materials; and
- motor vehicle noise and emissions.
In introducing the NEPCA, the Government said
that the NEPMs were designed to:
give all Australians the benefit of equivalent
environment protection and to ensure that investment decisions of
business are not distorted by variations in environmental standards
between Australian jurisdictions.(3)
The NEPCA sets out a public consultation period
for the development of NEPMs.(4) NEPMs are also
disallowable instruments for the purposes of section 46A of the
Acts Interpretation Act 1901.(5)
Decisions to approve the final form of the NEPM
require a two-thirds majority of NEPC members. Once the relevant
NEPM comes into operation following tabling in the Commonwealth
Parliament and not having been disallowed, NEPM implementation
becomes mandatory for all the NEPC member jurisdictions.
The NEPCA was supplemented by the National
Environment Protection Measures (Implementation) Act 1998
which set out various ways by which NEPMs may be applied to
Commonwealth places and activities, eg through applying State laws,
making of Commonwealth regulations or through use of environmental
audits or environmental management plans. More background on the
issues surrounding the 1998 Act can be found in the relevant
In the last four years, the NEPC has made six
NEPMs. These are:
- Ambient air quality (July 1998)
- Movement of controlled waste between states and territories
- National pollutant inventory (July 1998)
- Assessment of site contamination (December 1999)
- Used packaging materials (July 1999), and
- Diesel vehicle emissions (June 2001).
A NEPM on 'air toxics'(6) is also
under development by the NEPC.
The review of the National
Environment Protection Council Act 1994
Paragraph 64(1)(b) of the NEPCA requires that
the NEPCA and its State and Territory equivalents be reviewed after
five years operation to establish the extent to which the objects
of the Acts have been achieved. This review was commissioned in
2000. The terms of reference of the review included an examination
of the effectiveness of both the NEPC 'model' and the current NEPMs
in terms of meeting the environmental protection and non-distortion
objectives expressed in the IGAE and NEPCA. The terms of reference
also included an examination of the various procedural practices of
the NEPC and its development of NEPMs.
the National Environment Protection Council
(including its support structure) has been as effective as could
reasonably be expected however I consider that the time has come
when it is appropriate to make decisions about where the Council is
It would be possible to continue the Council
along much the same lines as it has been operating during recent
years. This reflects what has been described as the "existing
philosophy" of making NEPMs only for issues which are of a truly
national complexion and which are most efficiently handled by a
statutory national process .
Alternatively, it would be possible to give the
Council a broader mandate, with a responsibility to develop
national environmental policies and, as appropriate, nationally
consistent regulatory measures across the full spectrum of matters
listed in section 14(1) of the Acts. Such an approach would, in my
opinion, be more in keeping with the intent of those who drafted
the IGAE .
I think it important that the members of Council
address this fundamental question before any other decisions are
taken. In doing so, they will need to have regard to the financial
The issue of the role of the Council has been
largely dealt with by the incorporation of the NEPC into the
Environment Protection and Heritage Council, as mentioned
The report also recommended that proposed
variations to NEPMs that the NEPC consider to be of a minor nature
be made through less complex notification and consultation
procedures. The report's conclusions and full list of the
recommendations can be found in paragraphs 386-403.
Schedule 1 - Amendment of the
National Environment Protection Council Act 1994
Items 1 and 3
amend subsection 6(1) and section 13 respectively to provide that
the NEPC can direct the Services Corporation to 'provide assistance
and support' to other environment-related Ministerial Councils.
Item 5 inserts new
Division 2A to 'streamline' the procedure for making minor
variations to NEPMs. This is main element of the Bill.
Under new subsection 22A(1),
the streamlined procedure only applies where:
- the proposed variation is supported by a unanimous NEPC
- the resolution states that the variation will not involve a
'significant change in the effect' of the NEPM.
There is no guidance in the Bill or the NEPCA on
what would constitute a 'significant change'. There is no
requirement for the Council to have reasonable grounds on which to
base its conclusion as to the significance of the variation,
although this issue must be included in the public consultation
explanatory statement (see next paragraph).
Under the streamlined procedure, the NEPC must
prepare a draft of the proposed variation and a statement that
explains the reasons for the proposed variation, the nature and
effect of the proposed variation, and the reasons why the Council
is satisfied it is minor (ie not a significant change in its
effect): new subsection 22A(2). The draft and
explanatory statement are available for public comment for at least
one month.(9) Notice of the public comment period must
be published in a newspaper circulating in the relevant states or
territories: new subsection 22B(2).
When making a final decision on the proposed
minor variation, new subsection 22C provides that
the NEPC must have regard to:
- any submissions it receives
- the consistency of the measure with the principles of
environmental policy set out in section 3 of the IGAE
- relevant international agreements to which Australia is a
- any regional environmental differences in Australia.
Item 8 inserts new
subsections 64(3) and (4) to provide for the NEPCA to be
reviewed at a rolling series of five yearly intervals. This would
mean the next review would start in 2005. The report of each review
must to be tabled in Parliament within 12 months of the end of the
relevant five year period.
- Schedule 4 also allows the Commonwealth or a State or Territory
to retain any existing more stringent environmental
- Unless otherwise stated, where reference is made to particular
provisions of the NEPCA, it should assumed that equivalent
provisions are contained in the State and Territory 'NEPC' Acts.
- Second reading speech, the Hon Senator Chris Schacht,
Senate Debates 6 June 1994 p. 1315.
- Existing sections 16 20.
- Existing section 21.
- These are described by the NEPC as 'hazardous gaseous, aerosol
or particulate pollutants which are present in the air in low
- Donald McMichael, Review of the National Environment
Protection Acts, 31 January 2001 at: http://www.nepc.gov.au/pdf/NEPC_Act_Review.pdf
- Paragraphs 387 395.
- This compares to a two month public comment period for a
variation of a NEPM under current procedures: existing section 20.
Also, the current procedures require a comprehensive impact
statement to be drawn up as part of the consultation process.
12 August 2002
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