2.1
The committee received submissions from business and industry groups, environmental organisations, the legal profession, academia, and interested individuals. Generally, business and industry groups support the fundamental intention of the bill and recognise it as a first step in an ongoing reform process that is consistent with the direction of the Samuel review. Environmental, legal and academic representatives express reservations about some provisions in both schedules of the bill and suggest it selectively draws from the Samuel review, which is contrary to the review's recommendations.
2.2
Regardless of differences in views, there is broad agreement that reform to the Act with regard to environmental approvals is required. Amongst other things, it is agreed the Act is overly complex and requires streamlining, and it is not meeting its objectives to protect the natural environment.
2.3
This chapter begins by highlighting the areas of agreement between submitters and witnesses. It then discusses the grounds upon which organisations support or oppose the bill. The chapter addresses comments made on each of the two schedules.
2.4
The discussion on Schedule 1 includes the following issues:
requirements for bilateral agreements;
national environmental standards;
various aspects of discretion provided for in the bill; and
the status of interim standards.
2.5
The discussion on Schedule 2 explores views on the functions and powers of the environmental assurance commissioner, work plans, resourcing, and delegation.
Agreement on the need for environmental reform
2.6
While views differed on the provisions of the bill, there was notable consensus that the reform process outlined by the Samuel review must continue, and it must continue without delay. Central to this reform process was the need for negotiation and agreement on the final national environmental standards.
2.7
For many submitters, the interim standard (resulting from a decision of National Cabinet and discussed below), is a starting point on the way to achieving the outcomes-based standards required to address a system that is not currently realising its objectives. As expressed by the Minerals Council of Australia:
…outcome based standards are always better than prescriptive based standards. Meeting the objects of an Act through an outcomes based approach ensures you get continuous improvement along the way. Prescriptive based approaches just maintain the status quo.
2.8
The Places You Love Alliance similarly agreed on the nature of standards:
Outcome standards are the tool required to measure the cumulative impacts of successive waves of development to enable government to establish the overall sustainability of development trajectories and to apply conditions accordingly.
2.9
The Business Council of Australia expressed the views of many submitters when it acknowledged that, while the bill incorporates a review of interim standards prior to their finalisation as national environmental standards, the government must outline the review process and commence the process as soon as possible. It stated:
This will provide confidence to all stakeholders—whether it be business, conservation groups, Indigenous Australians, scientists or the broader community—that we are all committed to a dynamic system, subject to constant learning and improvement. What we can't afford to have is a stop-start reform process. This legislation is the just the beginning of improvement and refinement.
2.10
The Business Council of Australia pointed to the 'unprecedented agreement in recent months on how to lift environmental standards while continuing to promote economic development'. Notwithstanding the diverse groups involved in consultations during the Samuel review, key stakeholders were of the view there was agreement on 80 per cent of the substance of measurable and quantifiable standards and governments being held to account for outcomes. Stakeholders acknowledged protecting the environment and major project approvals need not be mutually exclusive; rather, environmental processes could represent a win-win, if done properly.
2.11
Much goodwill exists to continue consultation on future standards and streamlining environmental approvals. It was well recognised that, despite the current double handling and involvement of two levels of government, environmental outcomes are not improving. Complexity, duplication and confusion lead, in a worst-case scenario, to net environmental loss or a worse environmental outcome. Submitters strongly endorsed the view that the Samuel report provides a roadmap to improved environmental protections and more efficient approval processes.
2.12
Acknowledging the forward-looking views of business and industry groups and their desire for confidence to invest, Professor Craig Moritz from the Australian Academy of Science stated:
The issue we're facing is that, if we keep accumulating more and more threatened species, listed species and so forth, that we have to deal with, under the Act, in whatever form it's in, and that we have to deal with to meet our international obligations under the Convention on Biological Diversity, the developers and farmers and miners are not going to be able to do anything without tripping over a threatened species.
It's going to cause long-term damage to the economy. And Professor Samuel made this really clear. It's an economic issue as well as an environmental issue. So, if we can turn the ship around—and I believe he has laid out the correct pathway to do that—then it is a win-win. There's a reason that BHP in the Pilbara are so enthusiastic about regional agreements, in that they can put their investments in the context of the whole region, the context of the cumulative impacts, and they support this process.
General support for the bill
2.13
While much of the following discussion deals with a range of concerns about the proposed legislation and the government's response to the Samuel review, there was support for the bill as the first step on the government's reform path. A range of groups agreed the legislation will contribute to achieving an appropriate balance between environmental protection and economic development.
2.14
The Business Council of Australia was of the view the standards would define environmental outcomes in the national interest and the bill would establish processes for integrated and efficient decision-making. It would facilitate effective devolution of decision-making to achieve a single touch approach to assessment and approvals. It contains provisions that would ensure rigorous, independent monitoring, compliance, enforcement and assurances that would be 'progressive, proportional, and well resourced'.
2.15
The Minerals Council of Australia similarly saw positive outcomes from the effective integration of Commonwealth and state and territory processes that would 'improve outcomes for business, the environment and enhance community confidence in environmental protection'.
2.16
Organisations that supported the bill recognised progress on reform would be incremental. The fundamentally important first step was creating enforceable national environmental standards with stable accreditation settings and independent oversight.
2.17
These perspectives reflected evidence provided by departmental officials that environmental reform is complex. The department stated the government has committed to delivering the reforms needed to improve the Act, 'in a methodical, well planned way'. This is consistent with the Samuel review, which recommended reform be pursued in staged tranches.
2.18
Many organisations recognised it was a decision of National Cabinet that the immediate priority was to implement single touch environmental approvals underpinned by national environmental standards that reflect the current requirements of the Act, and supported by strong assurance. As foreshadowed by the department, 'further phases of reform will build on these streamlining efforts to address further changes and improvements, including to national environmental standards, taking into account the recommendations of the EPBC Act review'. According to the department, the proposed legislation is consistent with the Samuel review and reflects the priorities endorsed by the National Cabinet.
2.19
According to the Association of Mining and Exploration Companies (AMEC) the national environmental standards will be a long-lasting environmental legislative framework. This increases the importance of a phased approach, including the introduction of interim and reviewable standards. The AMEC argued it is necessary that the standards are workable, achievable, and accepted by industry. Without this assurance the standards will not meet their intended purpose and risk introducing further complexity or restrictiveness that would have unintended consequences for industry.
Schedule 1—Bilateral agreements and standards
2.20
Submitters predominantly commented on the two elements of Schedule 1: amendments that require processes and decisions made under state and territory bilateral agreements to be 'not inconsistent' with the national standards; and the processes and content of the standards themselves. These comments largely stem from a view the bill does not properly reflect aspects of the Samuel review.
Bilateral agreements
2.21
The amendments proposed in the bill would introduce a requirement that bilateral agreements and various decisions and processes made under them be 'not inconsistent' with the national standards.
2.22
Some submitters noted 'not inconsistent' is a weaker requirement than called for in the Samuel review, which specified such arrangements under bilateral agreements should be 'consistent' with the national environmental standards. 'Not inconsistent', according to the Threatened Species Recovery Hub, 'has a weaker legal meaning, and increases the degree of subjectivity and uncertainty in assessments of whether a decision or thing complies with a standard'.
2.23
More specifically, the Law Council of Australia and the Environmental Defenders Office pointed out the use of 'not inconsistent' provides for negotiation—both on whether state and territory environment impact assessment processes, and individual decisions under accredited arrangements, are not inconsistent with the standards.
2.24
The ability to negotiate is foreshadowed by the bill's explanatory memorandum, which specifies states and territories may be able to set out the context by which they are of the view a decision under an accredited arrangement or process is not inconsistent with the standards. The context could include the collective impacts of actions; implementation of avoidance, mitigation and offset measures for actions; and the implementation of other relevant environmental measures.
2.25
The Law Council of Australia and the Environmental Defenders Office recommended amendments to ensure the consistent and objective application of the standards to avoid jurisdictional negotiation of standards.
2.26
Although some argued the ability to negotiate might lead to a patchwork of arrangements, the department was of the view negotiation could lead to convergence:
…in effect we are saying to the states that, regardless what your legislation is and how you operate it, you will need to meet this requirement. I think there's some argument there that that will have, in some way, a harmonising effect in relation to what is application of disparate pieces of legislation at the state level at the current point in time.
The national environmental standards
2.27
As discussed in Chapter 1, Schedule 1 of the bill would provide for national environmental standards to be made and specifies a range of other requirements for the standards. While some groups recognised the government was taking a staged approach to the implementation of the recommendations in the Samuel review, others sought more immediate action on the findings of the review. This was reflected in views on the bill.
Detail in the bill
2.28
Several organisations questioned whether there is sufficient detail in the bill as to the substance and application of the national standards, and pointed out the bill does not require any particular standards to be made. Further, given there are no provisions in the bill that specify the quality, coverage or enforcement of the standards, there were concerns the standards may not be capable of protecting matters of national environmental significance.
2.29
Specifically, submitters pointed out the bill would not require any standard to be:
sufficiently robust and directed to deliver the objectives of the Act;
relevant to activities and decisions at all scales, including policies, plans and programs, as recommended in the Samuel review;
capable of maintaining or enhancing the absolute outcomes for all matters of national environmental significance and preventing cumulative impacts at all scales.
2.30
The Australian Conservation Foundation stated the consequence of 'ambiguous and poorly defined legislative frameworks and standards' will be 'greater contestation and lack of trust in the overall regulatory system'.
Delegation, disallowance and review
2.31
In combination, that the standards would be delegated to the Executive, that the first (interim) standards would not be subject to parliamentary disallowance, and that there would be no requirement for the standards to be updated following the mandated review which is to commence within two years, caused concern for some organisations.
2.32
The Law Council of Australia opposed significant matters being delegated to the Executive in an open manner and argued for any delegation to be tightly confined and subject to parliamentary oversight. It was of the view there are no grounds for exempting interim (first) standards from disallowance, describing the case advanced in the explanatory memorandum as neither reasonable nor proportionate. The Council stated there are no legitimate obstacles to the period for disallowance being observed prior to any single touch approval process with the states or territories being progressed.
2.33
More broadly, there was a view the bill would make it possible for the interim standards, which are not disallowable by the Parliament, to become the final standards following the legislated review. Concerns as to this possibility were heightened by the fact the bill contains no requirements for the conduct of the review, including that it be undertaken by independent scientific experts, or for the minister to respond publicly or amend the interim standards prior to them becoming final national environmental standards.
2.34
This arrangement would potentially allow for what some see as an inadequate standard to be in force for an extended period of time—particularly since there is no provision to shorten the usual 10-year sunsetting period for legislative instruments. The result, according to some groups, could be a deficient standard being the basis of negotiations between the Commonwealth and states and territories for bilateral agreements.
2.35
Accordingly, the Law Council of Australia called for a sunset clause to be added to any interim standard made under the bill, and for the bill to be amended to incorporate the requirement for a pre-sunsetting review. A sunsetting clause would ensure interim standards would cease and provide an imperative for stakeholders to complete the process started during the Samuel review. A requirement for a pre-sunsetting review would ensure appropriate scrutiny of the standards and avoid the 'risk of perpetual extensions of the sunsetting period without such scrutiny occurring'.
2.36
However, given the role of the interim standard in the overall reform process, there was support for non-disallowance of interim standards, and the review arrangements provided for the interim standards. In particular, the Minerals Council of Australia pointed out the standard released by the government was an interim measure that would allow the government to progress with the reform agenda recommended by the Samuel review. The council stated:
The interim standards merely reflect the current requirements of the Act. That does align with the intent of Professor Samuel and, given there is no substantial change, it makes sense that that's creating the vehicle on which we can establish and revise standards into the future.
It makes complete sense that, therefore, we make the final standards set in regulation and disallowable from that point onwards, because that's where they will start to diverge from the current circumstances. It will also allow current reforms processes and reforms to the Act to take place over the next year or two, which will, of course, feed down into the standards…
2.37
The bill's explanatory memorandum also emphasised the importance of having an interim standard in place so the government could pursue the reforms recommended in the Samuel review, and agreed by the National Cabinet:
National Environmental Standards in force under new Part 5A 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.
Incorporation of other material
2.38
Amendments in the bill would allow standards to incorporate other material (writing) that may or may not be in place at the time of the making of the instrument. This would potentially allow for the standards to be amended without Parliamentary scrutiny. The bill's explanatory memorandum argues this is necessary to ensure the standards remain contemporary as documents are updated or created over time.
2.39
A number of organisations expressed concern about this type of extra‑legislative amendment. It was opposed by the Minerals Council of Australia and the Business Council of Australia on the grounds that the material incorporated could expand the remit of the standards. There is a view the provision has the potential to elevate administrative guidelines incorporated into the standards to the same status as regulation or legislation.
2.40
The provision was also opposed on the basis it could be misused—a small gain in Executive convenience is overshadowed by the risks: inappropriate delegation of legislative power, loss of the Senate's scrutiny powers concerning legislative change, and loss of Executive control over its own policy. Dr Peter Burnett, an Honorary Associate Professor at the Australian National University and former senior executive in the department responsible for the administration and reform of the Act, stated the effect of the provision:
…is to give another party, including possibly a state minister, a de facto right to amend a Commonwealth legislative instrument, without legislative process or scrutiny. As a result, that other party can make or amend an instrument to which these provisions apply, such as a Commonwealth or State environmental offsets policy, in ways that may not have been envisaged by the minister when making the standard or, more importantly, reasonably anticipated by persons affected by the instrument concerned. Indeed, a state policy to which the standard referred might be made or amended in a form contrary to Commonwealth policy…
2.41
Although acknowledging the provision would allow for the standards to remain contemporary with updated conservation advices and best-available information, the Environmental Defenders Office called for clarification on how the minister would determine whether decisions are 'not inconsistent' if relevant writings are not finalised in a timely manner. For instance, it stated:
It would be of concern if a standard could refer to a non-existent future policy, or if bilateral agreements could be finalised based on a non-existent future policy (noting that the Streamlining Environmental Approvals Bill proposes accreditation of policies, guidelines and subordinate instruments not 'in law').
Discretion in the application and variation of the standards
2.42
While the bill would embed the standards in bilateral agreements, there was concern some provisions could, whether intentionally or otherwise, provide for a range of scenarios where the standards potentially would not apply. This was partly because the bill allows for decision makers, including the minister, to exercise discretion in ways that are not substantively limited.
Discretion when notifying the states
2.43
The bill would require the minister to 'request' the state or territory minister advises of any accreditation arrangements or processes inconsistent with a standard or variation to a standard. The bill's explanatory memorandum states, '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'.
2.44
Noting the importance of this provision in embedding the standards in bilateral agreements, the Environmental Defenders Office questioned the lack of definition in the provision. The requirement for the states to report does not apply if the minister is of the view the variation is 'minor'—there is no definition of 'minor' in the bill.
2.45
The bill's explanatory memorandum, however, does provide guidance on the meaning of 'minor':
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.
2.46
The Law Council of Australia questioned the efficacy of the reporting process itself—it depends on states and territories self-identifying whether there may be inconsistencies with the standards. The bill does not place any obligation on the minister to independently assess whether this is the case. The Council recommended, amongst other things, this obligation be included in the bill as part of reinforcing the Commonwealth's role in ensuring the standards are met at the national level.
2.47
The bill's explanatory memorandum explains the safeguards in the bill and provides assurance decisions will be not inconsistent with any standard. Several provisions in the bill would ensure decisions made by states and territories approving the taking of actions in accordance with bilaterally accredited management arrangements or authorisation processes, will not be inconsistent with any national environmental standard. A range of provisions, in combination:
…provide assurance that accredited state and territory environmental assessment and approval processes will be sound and directed towards delivering national environmental outcomes for nationally protected matters… 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.
2.48
The department further emphasised this point:
In the space of the bilateral agreements with the states, the states are required, through this bill, to make a commitment to not act inconsistently with the standards. In that sense, the bill doesn't give them any latitude in that regard… Within the architecture of the bilateral agreements themselves, there will also be assurance which is designed to ensure states are following through on the commitments they have to make to not be inconsistent with the standard and all the other requirements of part 5 of the Act, which will also be in the bilateral agreements. So there will be reporting, there will be evaluation mechanisms and there will be audit mechanisms which are conducted on a regular basis to control that system.
2.49
Through this process, the department expects to see a broadening of the reach of the Act. It emphasised, 'we are saying to the states that, regardless what your legislation is and how you operate it, you will need to meet this requirement [not to act inconsistently with the standards]'.
2.50
The Law Council of Australia was also concerned the provision presumes states and territories would amend their processes to avoid inconsistency with the standards by the date on which the new or amended standard would take effect. This may not be realistic, particularly under the maximum six month period for variations, or one month for new standards. As a result there is potential for an accredited process in an approvals bilateral agreement to operate while inconsistent with one or more standards. The Council recommended a review of the timeframes—particularly as the minister has discretion to suspend or cancel the operation of a bilateral agreement in cases of inconsistency. Similar concerns were raised by the National Farmers' Federation and the Minerals Council of Australia.
2.51
The bill's explanatory memorandum acknowledges as a consequence of a new or varied standard, states and territories may need to update bilaterally accredited management arrangements or authorisation processes, or the specified manner of assessment. To facilitate this process, the notification will be provided to the relevant state or territory minister as soon as practicable after the standard is made or varied. As a standard will be a legislative instrument, it will be available on the Federal Register of Legislation.
Discretion accorded to the minister to vary or revoke a standard
2.52
Stemming from a broader criticism that a significant issue with the Act is the excessive discretion it provides decision makers, the Environmental Defenders Office questioned the basis upon which the minister could decide to vary or revoke a standard. Given the absence of guidance in the bill around the use of these powers, there was a concern such actions could be taken on the basis of socio-economic impacts alone. There was a clear need, according to the Environmental Defenders Office, for objective criteria to underpin decision‑making.
2.53
Potential criteria were suggested by the Law Council of Australia to address what it described as unfettered ministerial discretion:
the minister should only be able to exercise this power on the basis of a threshold test requiring that the variation or revocation will not lead to a detrimental impact on a matter of national environmental significance or lessen the protections in the EPBC Act; and
the bill should clarify what exactly the minister can consider when deciding whether to vary or revoke a standard, through the listing of specific criteria.
2.54
The bill's explanatory memorandum emphasises the levels of oversight that will apply to any variation or revocation. As legislative instruments, the consultation requirements in the Legislation Act will apply to variations and revocations of standards. Section 17 of the Legislation Act requires appropriate and reasonably practicable consultation is undertaken before a legislative instrument is made. The explanatory memorandum states appropriate consultation processes would draw upon the knowledge of persons having expertise in the fields relevant to the standards, and those likely to be affected by a variation or revocation of the standard. Furthermore, any such instrument will also be subject to the disallowance provisions of the Legislation Act.
Discretion accorded to the minister to determine when the standards apply
2.55
The bill does not expressly identify which decisions and things must be not inconsistent with the standards. It would allow for the minister, by legislative instrument, to determine a decision or thing that must be not inconsistent with a national environmental standard. This would create uncertainty and potentially allow for the minister, according to the Law Council of Australia, to exclude a large number of decisions or things under the Act from the requirement to be not inconsistent with the standards.
2.56
The Law Council of Australia proposed a reversal. The starting point should be all activities of government under the Act must be consistent with the standards. The Council recommended amendments to remove ministerial discretion. It called for any executive discretion to depart from the requirement that the standards apply, to be tightly confined as suggested by Samuel—'a rare exception, demonstrably justified in the public interest, with reasons and environmental implications transparently communicated'.
2.57
The bill's explanatory memorandum clarifies these provisions and states they are intended to provide for transitional arrangements. For instance, it is anticipated the circumstances will relate to one or more processes that have begun under the Act before the commencement of the provisions.
Discretion accorded to the minister to make a public interest exemption
2.58
Amendments in the bill would allow the minister, by legislative instrument, to make a decision on public interest grounds that is inconsistent with national environmental standards. This would allow for a standard not to be met, for instance, due to the need to balance multiple protected matters. The minister would be required to publish the reasons the minister is satisfied the decision is in the public interest. As a legislative instrument, any such exemptions would be subject to parliamentary disallowance.
2.59
This power follows a recommendation from the Samuel review that called for the public interest exemption, with the proviso the power be used only in rare exceptions, and that any decision be demonstrably justified in the public interest and accompanied by a published statement of reasons, including the environmental implications of the decision.
2.60
On account of there being no definition in the bill of 'public interest' there was concern the provision would allow for wide discretion: it could be interpreted in myriad ways. The National Environmental Law Association pointed out:
What public interest means is the subject of case law and is constantly evolving, and may not be interpreted consistently across jurisdictions… the 'public interest' exception could be interpreted to prioritise anthropogenic considerations (i.e. the welfare of the current public) rather than the need for ecologically sustainable development and to mitigate climate change, to protect the environment for its intrinsic and ecosystem values, and the welfare of future generations and ecologies.
2.61
The extent of the discretion is foreshadowed by the bill's explanatory memorandum which would allow for the concept of balancing (discussed further below):
…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…
2.62
Dr Megan Evans raised concerns about this point. Dr Evans noted the explanation given in the bill's explanatory memorandum suggested there were situations where it would not be possible or feasible to meet the objects of the Act for multiple listed matters of national environmental significance. Because, in effect, all controlled actions under the Act involve impacts on multiple matters of national environmental significance, Dr Evans argued the provision would open the scope for decisions to only meet the object of the Act for one or a handful of listed matters of national environmental significance:
For example, a decision might impact two threatened species, but it could be deemed that 90% of the impact for one matter can be directly avoided, mitigated and offset, whereas only 40% of the other matter's impacts can be reasonably or cost-effectively avoided, mitigated and offset. The second matter will suffer a net loss to its habitat, but the Minister can say that strong environmental standards were maintained.
2.63
Dr Evans further argued the public interest discretion created an additional balancing opportunity for environmental considerations in relation to social and economic factors. Under devolved decision-making and the proposed standard for matters of national environmental significance (discussed below), a state or territory minister would undertake the balancing consideration in the first instance, and would do so without the need for a public statement. The bill's provisions would allow state/territory decision makers to make decisions inconsistent with national environmental standards. The public interest provision provided an additional balancing opportunity by potentially allowing the minister to approve a project where it may have been rejected by a state or territory minister (a decision where balancing had already been considered). Dr Evans noted given that balancing was already provided for, the Federal minister would likely only use the power where a proposal had already been rejected due to unacceptable impacts on matters of national environmental significance.
2.64
As a consequence of the extra scope provided by the public interest exemption, Dr Evans suggested exceptional circumstances be confined to activities that disrupted the normal functioning of society—that is, defence, national security or natural disasters and other emergencies. These are national interest issues within the jurisdiction of the Federal government and already provided for by an existing exemption in the Act. Dr Evans also called for a national environmental standard for offsets to be released prior to the bill being debated by the Parliament.
2.65
The Law Council of Australia recommended a list of non-exhaustive criteria to which the minister would have regard in making a decision, be added to the provision. These would include: having regard to the objects of the Act, and the intention the standards provide a consistent safeguard and benchmark to protect the environment at the national level.
2.66
The Australian Association Petroleum Production and Exploration Association had a different opinion. It was of the view the 'exemption is sensible', but called for elaboration on how the decisions would be made in practice. The provision was similarly supported by the Minerals Council of Australia.
2.67
The bill's explanatory memorandum recognises that in certain circumstances it may be necessary, and in the public interest, to balance environmental considerations with the social and/or economic impacts of a project. Further, there may be situations where multiple protected matters are involved that must be balanced. In limited circumstances, it may be necessary for the minister to make a decision that is inconsistent with a national environmental standard. This power is not unlimited. Any such determination is a legislative instrument and is subject to the disallowance provisions of the Legislation Act. This means it can be scrutinised by the Parliament.
Discretion accorded to decision makers to balance environmental impacts
2.68
The bill would allow decision makers to take into account a number of matters when consideration is given to whether a decision or thing is not inconsistent with a standard. These would include:
policies, plans or programs of the Commonwealth or state/territory; and
funding by the Commonwealth or state/territory of activities related to the environment, or related to the promotion, protection or conservation of heritage.
2.69
The bill, however, specifies there is no limit on the matters the person may take into account.
2.70
The open-ended nature of these provisions was opposed by organisations which argued almost anything could be taken into account, including intangible factors. For instance, the Threatened Species Recovery Hub stated actions could be considered not inconsistent with the standards:
…as long as there is some belief or assumption that other, potentially unconnected, actions, decisions, or plans (including those not under the control of the decision maker or the proponent) would collectively render the decision or action acceptable under the Act. For example, it would allow for an impact on an MNES [matter of national environmental significance] that is significant and unmitigated, as long as the decision maker is satisfied that some other potential future source of funding or action would lead to an overall acceptable outcome—even if that other funding or action is not under the direct control of either the decision‑maker or the proponent.
2.71
Dr Evans pointed out this discretion could be widely used by any person making a decision under a bilateral agreement. For instance, a state delegated authority 'could be satisfied that a decision that impacts a critically engendered Matter of National Environmental Significance (e.g. the regent honeyeater) is not inconsistent with a national environmental standard because another jurisdiction spends money on carbon capture and storage research'. Dr Evans suggested the provision allowed for 'offset-like measures' that would not satisfy several of the Environmental Offsets Policy (2012) requirements, specifically, those of additionality, proportionality to the level of statutory protection and size and scale of impact, like for like, transparency, and that offsets do not make unacceptable impacts acceptable.
2.72
Some stakeholders called for the balancing provisions to be removed: Dr Burnett characterised them as a 'back door' for avoiding what are meant to be hard bottom lines; the Australian Conservation Foundation stated they potentially allowed for actions to contravene the standards; and the Law Council of Australia suggested they opened the door for negotiation instead of providing for a straightforward decision to be made on whether a standard is being met.
2.73
In combination, these multiple areas of discretion led some to question whether the bill would be workable in practice. Dr Burnett provided the following scenario:
Firstly, the bill amends the minister's powers to terminate an accreditation under an approvals bilateral, so the federal minister could take the view that an accredited state minister was not complying with the standards in her subjective judgement. It's not an objective test.
Alternatively, the proposed assurance commissioner could produce a report saying, 'I've been looking at these decisions and, in my view, the decisions by the accredited decision-maker do not comply with the standards.'
But it's very hard to imagine such a conclusion being reached, because it's so much a subjective matter for the accredited decision-maker. It's hard to conceive of a situation where the watchdog, the assurance commissioner, is going to be able to reach a finding that there's a breach, unless the accredited decision-maker is just acting in flagrant disregard, totally ignoring what's in the standards, and then you might have grounds for saying, 'They're in breach.'
2.74
The bill's explanatory memorandum, however, explains the practical utility of the provisions and argues the provisions are necessary to ensure a person can take into account all relevant matters when considering whether a decision or thing is not inconsistent with a standard. It explains:
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.
Interim standard
2.75
The Samuel review recommended the implementation of a suite of standards, and provided four specific national environmental standards: Matters of National Environmental Significance, Indigenous Engagement and Participation in Decision-Making, Compliance and Enforcement, and Data and Information. As discussed in Chapter 1, these prototype standards were informed by intensive consultations with a cross section of national-level interest groups and leading experts. Although some identified shortcomings, there was general support for Professor Samuel's standards as a first step. This came from a broad range of groups and individuals who argued they were appropriate for immediate implementation, particularly as they did not go beyond the existing policy settings of the Act.
2.76
The government recently released its proposed interim national environmental standard for matters of national environmental significance. It was noted by the department that the standard recommended by the Samuel review for matters of national environmental significance, while consistent with the objects of the Act, included 'references to guidelines, policy statements and management plans which, in some cases, extend beyond the Act's specific requirements'. As noted elsewhere in this chapter, continuing negotiation with stakeholders to reach agreement on the standards is required, and indeed welcomed by stakeholders.
2.77
The substance of the interim standard is a reflection of the government's commitment to address the recommendations of the Samuel Review through the process agreed by the National Cabinet. Using the existing provisions of the Act as the interim standard allows tranche one of the reforms to proceed while negotiation on the final standards continues through the review process provided for in the bill itself. This first tranche of reforms will implement single touch environmental approvals underpinned by national environmental standards.
2.78
The short-term nature of the standard was noted by the department—it is the beginning of a reform journey. As provided for in the bill, a review of any interim standard would be undertaken within two years of its implementation. Although interim standards will not be disallowable, future amendments to a standard would be subject to disallowance.
Support for the interim standard
2.79
A number of organisations welcomed the substance of the government's interim national environmental standard, including the Minerals Council of Australia, the National Farmers' Federation, the Australian Petroleum Production and Exploration Association, and the Chamber of Minerals and Energy of Western Australia. These groups shared the view the interim standards should be based on current obligations in the Act as a baseline and argued the standards recommended by Professor Samuel were not in fact consistent with current legislative requirements; a view that is disputed by other groups.
2.80
The Minerals Council of Australia provided some examples of inconsistencies between the standards proposed in the Samuel review and the Act, stating:
…[the] principle of non-regression, no loss of habitat or individuals, limitations on development in and adjacent to heritage places and Ramsar wetlands, requirement for best available information—and it can go on and on and on. These things are moving beyond the current settings, and I'm sure that we're going to end up with better terminology than is in the current EPBC Act, but that's a process that we will all work on together over this two years. There is goodwill and there is the consultation process that has brought all of the NGOs together, working with business groups, to get a better environmental outcome overall.
2.81
The Chamber of Minerals and Energy of Western Australia argued the standards proposed by Professor Samuel fundamentally raised the bar with regard to environmental assessment and introduced uncertainty:
…no development project which intersects with a matter of national environmental significance is approvable under the devolved decision‑making model if using recommended [Samuel's] standards.
Comments on the interim standard
2.82
Some groups emphasised the interim nature of the standard and the need for progress. The Business Council of Australia called for the government to move as quickly as possible to a new set of standards using the standards provided by the Samuel review as a base—this should occur more quickly than two years provided for in the bill.
2.83
Others criticised the fact the government's proposed standard for matters of national environmental significance contains significant differences to the standard proposed by Professor Samuel, and provided for the continuation of currently inadequate arrangements. Even with the two year legislated review, there are concerns the interim standard replicates provisions in the existing Act which are regarded as insufficient, particularly as it is process rather than outcomes-driven. The interim standard was described as 'the status quo with different wording' and should it become a final standard, nothing will advance beyond the existing situation.
2.84
Dr Burnett suggested the interim standard is not in fact a standard, but is 'a distillation of requirements taken from the legislation', and some constituted mandatory considerations rather than standards. For Humane Society International, the existing provisions of the Act have allowed for 'broad discretion for poor and inconsistent decision making' and have generated 'uncertainty for the matters they are supposed to protect, as well as for all stakeholders'.
2.85
Humane Society International and the Environmental Defenders Office argued the government's draft standard weakened possible environmental outcomes and might be inconsistent with the Act. The standard specifies only that arrangements and processes (rather than assessment and approval decisions, as an earlier version stated), will not have unacceptable or unsustainable impacts on matters of national environmental significance. It would allow, according to the organisations, for different standards to be applied to different decisions and for unsustainable and unacceptable impacts to be approved for project level decisions.
2.86
Accordingly, the organisations argued the standard was incompatible with a requirement in the Act that applies the unacceptable/unsustainable test to individual action approvals, and stated the standard should be redrafted. They reiterated, 'applying the threshold test only at the level of the accredited arrangement or process blunts and therefore weakens the application of the proposed standard'.
2.87
The Law Council of Australia acknowledged consultation during the Samuel review built a significant degree of consensus across stakeholder groups. As discussed above, there was agreement on around 80 per cent of the proposed standards. While it was important not to lose momentum from this process, the Council cautioned against progressing before achieving broad consensus on the range of standards the department is asked to develop and implement. It would be the full range of standards that would set the basis for reform, and the full range is necessary to achieve public trust and confidence in the reforms. Deviating significantly from the consensus position achieved during the review may, according to the Council, undermine cross-sector collaboration.
Suite of standards and devolution
2.88
Some submitters queried why only one standard had been proposed when the Samuel review provided four standards and recommended a suite of nine standards be developed. The intent of the suite of standards, according to the Law Council of Australia, was that they 'work in concert to achieve comprehensive levels of consistency and certainty in national environmental protection'. They were intended to cover matters of content and process. The standalone standard proposed by the government would operate 'alone and unsupported' by the other standards.
2.89
According to several environmental groups and academics, the proposed standard amplified concerns about devolution of decision-making through bilateral agreements to facilitate single touch approvals; the strength of the accreditation process underpinning bilateral agreements; how any updated standards would apply to previously negotiated bilateral agreements; and the powers for the Environmental Assurance Commissioner provided in the bill.
2.90
Under the proposed model, compliance and enforcement would be primarily undertaken by states and territories. Many submissions called for the full suite of robust, outcomes-focussed standards to be established prior to devolution. That there is currently no compliance and enforcement standard was regarded as problematic by some submitters. For instance, some argued:
the lack of such a standard would limit the ability of the commissioner to ensure states and territories have effective regulatory approaches; and
a compliance and enforcement standard would be critical to ensuring a consistent approach to implementing standards across jurisdictions.
2.91
The effectiveness of devolution would rely, according to the Australian Heritage Council, on the skill sets, capacity, staffing, and resources of organisations required to be responsible. Similarly, Dr Evans questioned the ability of states to undertake larger workloads:
The most likely outcome [of devolution] is that the [states'] workload will increase, there will be continued pressure on [state-based] staff to push actions and projects through the system, and more and more issues will slip through the cracks. An Environment Assurance Commissioner can only 'audit' what's present in the system, not what hasn't been captured. So on paper, it might appear that assessments and approvals have been 'streamlined' if projects are getting through the system quicker, but this masks the environmental impacts that are not being dealt with adequately at each state of the process.
2.92
There is also significant variability in individual states' capacities across jurisdictions. This recognition led to calls for a rigorous process and criteria for the Commonwealth to be satisfied a state or territory was appropriate for accreditation. For instance, the Australian Heritage Council noted the only jurisdictions where Aboriginal heritage legislation meets the best practice standards and the United Nations Declaration on the Rights of Indigenous People, are Victoria and the Northern Territory. The Northern Land Council expressed concerns about the capacity and resourcing of the Northern Territory Government to address matters of national environmental significance. The Environmental Defenders Office said no current laws in the states and territories meet the existing requirements of the Act.
2.93
Catholic Religious Australia agreed research has shown state and territory laws, processes and policies are unable to comprehensively meet the current national environmental standards. Legislative and governance reform and additional resourcing would be required before bilateral agreements were made. For some, states and territories would need to demonstrate they are adequately resourced to undertake the assessment and approvals process.
2.94
Nevertheless, the department was confident the bilateral agreements would be sufficiently robust to ensure decisions are not inconsistent with the standards. Mr Manning stated:
Within the architecture of the bilateral agreements themselves, there will also be assurance which is designed to ensure states are following through on the commitments they have to make to not be inconsistent with the standard and all the other requirements of part 5 of the act [Bilateral agreements], which will also be in the bilateral agreements. So there will be reporting, there will be evaluation mechanisms and there will be audit mechanisms which are conducted on a regular basis to control that system.
2.95
The department also stated any jurisdictional need for additional resources would be considered as part of ongoing negotiations.
Schedule 2—Environment Assurance Commissioner
2.96
Significantly, the establishment of the Environment Assurance Commissioner was broadly supported. Though, there were some concerns about the extent of the commissioner's powers, leading some submitters to question whether the commissioner would be effective.
2.97
As with the provisions relating to the standards, there was recognition that the commissioner would be an important step in implementing the recommendations of the Samuel review. Organisations, including the Minerals Council of Australia, National Farmers' Federation, AMEC, and Australian Petroleum Production and Exploration Association, supported the establishment of the position, the commissioner's focus on the operation of bilateral agreements and processes, and the powers provided for the commissioner. There was a view the arrangements are consistent with the Samuel report.
2.98
The Minerals Council of Australia stated the position would provide the independent oversight needed to improve community confidence and trust in the Act. In particular, annual work plans would provide a disciplined and structured approach to monitoring and auditing.
2.99
The Association of Mining and Exploration Companies called for a transparent recruitment process to minimise any concern Commonwealth influence could outweigh state or territory representation, resulting in unintended consequences.
Functions of the commissioner
2.100
Many environmental organisations supported the establishment of the commissioner. However, some concerns were expressed about the functions provided for the commissioner. These concerns included:
the commissioner would focus primarily on bilateral agreement implementation and would not have strong audit powers or the power to audit individual decisions;
the commissioner would have no powers to compel the making of changes to ensure any failures identified in an audit are addressed;
when the commissioner did produce an audit, there would be no requirement for the minister to respond or respond publicly;
there would be no requirement for an outcomes-focussed approach to assessing the consequences of actions or decisions undertaken by the Commonwealth or accredited agencies under the Act;
the commissioner could not investigate complaints and there would be no provision for third party referrals;
there would be no mechanism for departmental staff to raise whistleblowing concerns with the commissioner or mechanism to protect those who did;
the commissioner would not have a compliance and enforcement role, leaving enforcement of the standards to the states and territories, the commissioner would be limited to monitoring or auditing state/territory compliance monitoring processes; and
the minister should be required to publicly respond to any advice and recommendations from the commissioner, within a reasonable timeframe.
2.101
Taken together, these concerns led some organisations to question whether the commissioner would have sufficient powers. According to the Threatened Species Recovery Hub, the bill attenuated the central auditing function of the commissioner. Absent any mechanism for assessing problems or providing accountability, the commissioner's function would be fulfilled if the commissioner provided monitoring. As such, there would be a risk matters of national environmental significance may be 'monitored to extinction'.
2.102
The Australian Conservation Foundation stated the commissioner would be reliant on reports by jurisdictions as to their conduct in implementing national standards at the project level. Without the power to monitor or audit single decisions, the National Environmental Law Association was of the view the commissioner would 'likely to become closer to an advisory body', which was contrary to Samuel's recommendations.
Other provisions for the commissioner
2.103
A range of other comments on various aspects of the commissioner's role were made in relation to the commissioner's ability to request information; annual work plans and directions from the minister; resourcing; and delegation powers.
Ability to request information
2.104
The Law Council of Australia endorsed in principle the power of the commissioner to request information, but called for clarity on whether it could extend to proponents of individual projects, given the commissioner would not be able to monitor or audit single decisions. It also questioned whether there being no obligation for persons to provide the information might hamper the commissioner's audit functions significantly in practice. The Council recommended more appropriate information gathering powers be provided to ensure the commissioner could perform the role independently.
Annual work plans and directions from the minister
2.105
The bill would establish requirements for the minister's statement of expectations and the commissioner's work plan. These would not be legislative instruments.
2.106
There was some support for the minister's statement of expectations and the commissioner's annual work plans being legislative instruments and subject to parliamentary scrutiny and disallowance. Without this, the Law Council of Australia argued there was a clear mechanism for the minister to shape annual work plans contrary to the express freedom of the commissioner set out in the bill.
2.107
Regardless of whether these were legislative instruments, the requirement for the commissioner to produce an annual work plan itself could undermine the commissioner's independence, according to some submitters. For the Environmental Defenders Office, the work plan provisions provided the potential for the minister to take a 'clear and active' role in the formulation of the work plans, and limit the capacity of the commissioner to proactively conduct an unplanned audit.
2.108
Whether the minister had a role in the formulation of the work plans, the variety of functions potentially performed by the commissioner raised questions for some. The Law Council of Australia pointed out the proposed functions for the commissioner included a diverse range of powers to audit and/or monitor actions, including:
managing aircraft operations in airspace;
adopting or implementing a major development plan for an aircraft; or
actions authorised by a sea dumping permit, or a Basel permit.
2.109
The Law Council of Australia argued this could result in the commissioner receiving requests to divert resources to these areas and away from the recommendations in the Samuel review. Although the commissioner is not subject to directions, the Council called for any requests by the minister under section 501S to be specifically resourced.
Resourcing and operational independence
2.110
Though the commissioner is established as an independent statutory position, the resourcing provisions for the commissioner and the fact the commissioner will sit within the department meant there would be a 'blurred line', according to the Wentworth Group of Concerned Scientists, between the commissioner and the department in terms of operational work.
2.111
While there was support for the commissioner to be an independent statutory authority, this was subject to the commissioner having an appropriate budget and dedicated staff, rather than being dependent on resources provided by the Secretary of the department.
2.112
The Law Council of Australia stated:
Intuitively, freedom to refuse requests by the minister will best be achieved if the EAC [the commissioner] has adequate practical independence from government, but this can only arise if the EAC is allocated sufficient resources to perform his or her functions.
2.113
There was a view, expressed by the World Wide Fund for Nature Australia and the Australian Conservation Foundation, that the limited budget for the office of $9 million over four years was a small amount for the operation of a commissioner who would sit across all environmental assessments and approvals under the Act.
2.114
In response to expressed concerns around resourcing, the department reiterated that the minister had confirmed in her second reading speech that the commissioner would be supported by dedicated resources. The department further pointed out the provisions with regard to the commissioner were consistent with the supply of staffing and resourcing to other statutory office holders under the Act, including the Threatened Species Scientific Committee, the Indigenous Advisory Committee, and the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining.
Delegation
2.115
There was a range of views on the appropriateness of provisions in the bill that would allow the commissioner to delegate their functions and powers. For Dr Evans, this meant, 'conceivably, an appointed Environment Assurance Commissioner could simply delegate all their work (other than the work plan and ministerial reporting) to the APS, which is hardly independent'.
2.116
Some warned the ability to delegate had the potential to create conflicts of interest, especially if audit functions were assigned to those directly involved in administering standards or bilateral agreements. The Law Council of Australia recommended the commissioner be fully resourced so delegations would not be required, and the provisions allowing for delegation be deleted.
2.117
Dr Burnett put forward a middle ground:
While it is appropriate for the EAC to delegate powers to senior public servants who have been made available to the EAC under proposed section 501T, it is not appropriate for the EAC to delegate powers to the Secretary of the Environment Department, as the Secretary is of course not one of these 'made available' staff but always reports to, and is accountable to, the minister.
Committee view
2.118
Submitters to the inquiry have highlighted what has been known for some time: the current Act is not functioning to effectively protect the natural environment or enable efficient decision-making on project approvals. Similarly, submitters noted the complex nature of environmental reform.
A staged approach to environmental reform
2.119
This bill is part of the government's response to the final report of the Independent Review of the Act—also known as the Samuel review. The committee acknowledges the views of some that the current legislation addresses only a small number of the recommendations from the review, while others recognise it as a first step that is consistent with the findings of the review.
2.120
The Samuel review was far-reaching and comprehensive. Given the evident complexity of environmental reform, the review recommended a staged approach. The committee heard in evidence the government has committed to working through the report and its recommendations for reform, and it will do so in a measured and planned manner.
2.121
This bill is not the totality of the government's response to the Samuel review; in conjunction with the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020, it represents a first step in a longer reform process that will ensure the protection of Australia's environment and biodiversity.
2.122
The committee notes there is no substantive disagreement from any stakeholder with Professor Samuel's findings that 'Australia's natural environment and iconic places are in an overall state of decline and are under increasing threat', and that the Act is 'outdated and requires fundamental reform' because 'it does not enable the Commonwealth to effectively fulfil its environmental management responsibilities to protect nationally important matters'.
2.123
To give confidence to stakeholders and certainty to industry, the committee encourages the minister to amend the bill's explanatory memorandum to set out the goals towards which the government is working through this legislation and a timeframe for doing so.
Standards and devolution
2.124
As discussed above, the bill itself is the outcome of an agreement of the National Cabinet that the two highest priorities in responding to the independent review are to pass legislation streamlining environmental approval processes and to develop national environmental standards reflecting the current requirements of the Act.
2.125
While implementing the decision of the National Cabinet, the bill responds to key reform elements in the Samuel review. For the first time, national environmental standards and an independent assurance process will be established. It will allow for the streamlining of environmental approvals, underpinned by strong and legally enforceable national environmental standards, supported by robust assurance measures. It is a clear demonstration of the government's commitment to reform in this area.
2.126
The committee acknowledges some stakeholders may be disappointed the interim standard reflects the current requirements of the Act, though this reflects the National Cabinet's agreed starting point. Nevertheless, the committee also heard from many stakeholders across the spectrum who urged further consultation on the standards proposed by Samuel. This consultation is provided for in the bill.
2.127
The goodwill of all stakeholders arising from the consultations during the Samuel review is clear. There is a shared commitment to drive change and ensure there is an appropriate balance between developments necessary for economic recovery from the pandemic and better protecting the environment.
2.128
It is appropriate to highlight the words of Professor Moritz who stated 'we all had the same goals of confidence in the system that would reduce so‑called green tape, would be more efficient and would have a better outcome'. The committee also agrees with Professor Wintle that there is a huge opportunity to build on the consensus built during the Samuel review. Similar views are held by business and industry groups including the Business Council of Australia, the Minerals Council of Australia, and the Australian Petroleum Production and Exploration Association.
2.129
The committee notes the strong agreement from environmental and legal groups, academics, and industry groups for permanent outcomes-based national environmental standards. The committee is encouraged to hear there is close to 80 per cent agreement on Professor Samuel's proposed standards.
2.130
The committee acknowledges the concerns of some that interim standards may become the final standards if the momentum of this reform process is not maintained. It also acknowledges there exist related concerns the interim standards are not disallowable.
2.131
It must be recognised the intent of the decision of the National Cabinet is to put in place the framework for streamlining environmental assessments recommended in the Samuel review. Using the existing provisions of the Act as the interim standard is a holding measure that provides an incontestable base to allow the framework to be implemented. As this is occurring, the work on the national environment standards begun by Professor Samuel, and which resulted in 80 per cent agreement amongst stakeholders, should continue. The intent is agreement will be reached on the final standards, which will be disallowable when they are put before the Parliament.
2.132
The committee is of the view the terminology used in the bill could be improved. The review period provides for continuing negotiation on the draft national standards developed during the Samuel review, building on areas where consensus was reached through Professor Samuel’s work. The committee is confident the two years provided for in the bill will be sufficient time for stakeholders to reach negotiated agreement on the outstanding issues.
2.133
To ensure confidence in the process, to reflect the intent of the interim standard as a holding measure, and to emphasise the imperative to continue consultation, the committee recommends the bill be amended to provide that the review process must be completed within two years (not simply commenced), and the first (interim) standards will sunset two years after they come into effect. This will clearly demonstrate the temporary intent of the interim standards, and will ensure each standard ceases to have effect upon sunsetting.
2.134
The amendment will provide a mechanism to ensure if final standards, for whatever reason, have not been agreed within the two year timeframe, the interim standards may only be continued with the scrutiny and oversight of the Parliament. This will give certainty to all stakeholders that a standard intended to be an interim measure will not become a permanent measure, unless the Parliament subsequently establishes it as the only realistic way forward.
2.135
The committee welcomes the department's advice it is considering the implications of incorporating a sunset clause, but is of the view it is not sufficient to consider the implications, it is necessary for a sunset clause to be included.
2.136
The committee recommends 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.
2.137
The committee recommends 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.
2.138
The committee encourages the minister to harness the goodwill of stakeholders and immediately continue the process of negotiation on the final standards.
2.139
The committee recognises there are differing views on the sequence of standards and devolution. However, it reiterates this was a decision of the National Cabinet. The committee is reassured that devolution of decision‑making cannot occur without bilateral agreements that are clearly premised on the national standards. Furthermore, each bilateral agreement will be subject to disallowance in the Parliament.
Environment Assurance Commissioner
2.140
The committee agrees the Environment Assurance Commissioner is an essential element of the assurance regime underpinning the devolution of decision-making to the states and territories.
2.141
The Samuel review of the Act found strong and independent oversight of environmental assessment and approval systems, including accredited state and territory systems, was required to maintain confidence the outcomes of the standards are being achieved and the requirements of the Act are being met.
2.142
The Samuel review found past attempts to accredit the approval processes of states and territories failed because of community concerns decision‑making would become overly discretionary and inconsistent with national obligations and the national interest.
2.143
By legislating strong audit and independent oversight powers for the commissioner, the bill is giving substance to Professor Samuel's observation that the commissioner must provide confidence that decision makers are adhering to the standards and the provisions of bilateral accreditation.
2.144
Many stakeholders agreed the commissioner's focus on the operation of bilateral agreements and processes is appropriate. The committee acknowledges, however, some stakeholders have concerns with the scope of functions provided for the commissioner, in particular that the commissioner will not be able to audit individual decisions. The committee reiterates that the purpose of the commissioner is to provide strong and rigorous assurance that environmental assessment and approval systems are robust and functioning as required. As such, it is of the view the functions included in the bill are appropriate.
2.145
As highlighted in the bill's explanatory memorandum, the commissioner will have the ability to monitor and/or audit whether states and territories are adhering to the provisions of bilateral agreements, and whether states and territories are approving actions in accordance with the accredited processes. This buttresses any assurance mechanisms contained in bilateral agreements. The committee is reassured that all aspects of environmental assessment and approval processes under the Act will be within the scope of the commissioner's functions.
2.146
Additionally, the bill requires that the commissioner holds necessary qualifications to carry out the commissioner's functions and it specifies the commissioner is not subject to direction from the minister. Further, reinforcing the commissioner's independence, all statements of expectations from the minister and work plans will be publicly available. The commissioner is also expressly provided with the power to amend a work plan. All audit reports produced by the commissioner must be made publicly available within 30 days of their completion.
2.147
Though some submitters raised concerns about resourcing for the commissioner, the Committee is of the view the arrangements reflect existing provisions for other statutory office holders.
2.148
The committee acknowledges questions raised over the power of the commissioner to delegate the commissioner's functions. The committee is of the view the requirement that delegates comply with directions from the commissioner is a sufficient safeguard.
2.149
The committee also notes, consistent with other statutory appointments under the Act, the commissioner will be available to parliamentary committees on environmental issues, including at Senate estimates.
2.150
The process of environmental reform is complex, and this bill shows the government's commitment to implementing the recommendations of the independent Samuel review—in consultation with all stakeholders. Taking a careful and staged approach, including negotiation between stakeholders on key measures, will ensure continuing confidence in the process of environmental reform. However, as noted above, it is essential that the momentum created by the independent review is not lost.
2.151
Accordingly, subject to recommendation 1 and recommendation 2, the committee recommends the bill be passed.
2.152
The committee recommends that subject to recommendation 1 and recommendation 2, the bill be passed.
Senator the Hon David Fawcett
Chair