1.1
On 25 February 2021, the Senate referred the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 (the bill) to the Senate Environment and Communications Legislation Committee for inquiry and report by 1 June 2021. The Committee later agreed to extend the reporting date to 8 June 2021.
Structure of this report
1.2
This report comprises two chapters. This chapter addresses a number of matters, including:
administrative details of the inquiry;
background details including, contextual information on the Environment Protection and Biodiversity Conservation Act 1999 (the Act), legislated reviews, and the policy impetus for the bill;
an overview of the bill's provisions; and
comments from the Scrutiny of Bills Committee.
1.3
Chapter 2 considers the evidence received during the inquiry, and sets out the committee's views and recommendations.
Conduct of the inquiry
1.4
The committee advertised the inquiry on its website, and wrote to relevant organisations inviting submissions by 25 March 2021. The committee received 133 submissions, and two supplementary submissions, which are listed at Appendix 1.
1.5
The committee held a public hearing in Canberra on 4 May 2021. A list of witnesses that appeared at the hearing can be found at Appendix 2.
1.6
The committee also received 751 letters from members of the public as part of an email campaign opposing the bill. Most contained common themes and statements, with the addition of some personal vignettes. The committee published a representative selection of these letters as submissions and accepted the remainder as correspondence.
1.7
All submissions and the Hansard transcript of evidence from the hearing are available in full from the committee's website.
Purpose of the bill
1.8
The bill is part of the government's legislative changes to implement single touch environmental approvals that aim to devolve decision-making to the states and territories through bilateral agreements (see 'Legislative reforms' below). The bill seeks to amend the Act to, according to the explanatory memorandum, ensure 'approval bilateral agreements' made between the Commonwealth and states and territories 'are underpinned by national environmental standards, supported by strong assurance and oversight mechanisms'.
1.9
The bill contains provisions that would establish a framework for making, varying, revoking and applying the national environmental standards. The explanatory memorandum states:
The application of the Standards to bilateral agreements with the states and territories will provide confidence that the requirements of the Act are being met when they conduct project assessments and make approval decisions under accredited processes.
1.10
The bill also contains provisions that would establish an Environment Assurance Commissioner who would:
…undertake transparent monitoring or auditing (or both) of the operation of bilateral agreements with the states and territories and Commonwealth processes under the Act for making and enforcing approval decisions.
Background
The Environment Protection and Biodiversity Conservation Act
1.11
The Act provides the legal framework for managing Australia's matters of national environmental significance (MNES). These matters, determined largely by international agreements to which Australia is a signatory, are set out in Part 3 of the Act:
world heritage properties;
national heritage places;
wetlands of international importance (or Ramsar wetlands);
national threatened species and ecological communities;
Commonwealth marine areas;
the Great Barrier Reef Marine Park;
nuclear actions (including uranium mining); and
water resources in relation to coal seam gas developments and large coal mining developments.
1.12
The Act encompasses: an environmental assessment regime for actions likely to have a significant impact on MNES and biodiversity conservation, including the process for listing and managing threatened species, ecological communities and protected areas, and the regulation of trade in wildlife.
1.13
The Act applies to proposed activities (controlled actions) that may have a significant impact on an MNES (a 'trigger'), including by landowners, developers, industry, farmers, councils, state and territory agencies, and Commonwealth agencies.
1.14
In practice, activities that require approval, progress through the following three stages:
referral—the minister makes a decision as to whether the action is a controlled action and requires formal assessment and approval under the Act, based on whether the proposal is likely to have a significant impact on an MNES;
assessment—the minister determines the appropriate means of assessment. There are a range of methods, but all require public consultation; and
approval—the minister decides whether to approve an action and the conditions attached to any approval.
1.15
Broadly, the minister only has a role on proposals that may have a significant impact on one or more of the nine MNES, regardless of whether a project may have other undesirable environmental impacts. Under the Australian Constitution, states have primary responsibility for environmental protection.
1.16
If a controlled action is considered by the minister, the minister cannot consider matters beyond those relating to decisions on approval and conditions.
1.17
Under the Act, the minister must consider the following matters when coming to a decision on whether to approve a controlled action and the conditions that might be attached to the approval:
all adverse impacts (direct and indirect) of the proposed action on relevant MNES;
economic and social matters;
the principles of ecologically sustainable development;
the assessment documentation which details the impacts of the proposed action;
community and stakeholder comments;
the recommendation report from the Department (which recommends whether the action should be approved and any conditions that should be attached to the approval);
comments from other Commonwealth Government or state and territory government ministers (if any) and the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (where relevant); and
whether the person or company (including parent companies and executive officers) is a 'suitable person' to be granted an approval, based on their environmental history.
Legislated reviews
1.18
The Act requires the minister to cause an independent review to be undertaken into the operation of the Act and the extent to which the objects of the Act have been achieved. The first review was to be undertaken within 10 years of the commencement of the Act, and thereafter at intervals of not more than 10 years. There have been two reviews to date.
Hawke review
1.19
The first review (the Hawke review) was led by Dr Allan Hawke and reported to the minister in October 2009. Dr Hawke observed that while the Act was deliberately drafted to be repetitive with the intention it would be easier to understand, the opposite had occurred. The Act was 'too repetitive, unnecessarily complex, and in some areas, overly prescriptive'. He called for the Act to be restructured to make it more accessible, easier to navigate, and to reduce the regulatory and resource burden on those impacted by the Act.
1.20
Dr Hawke also highlighted the benefits of bilateral agreements in generating efficiencies in environmental management. He called for these agreements to be implemented alongside accreditation and standardisation processes. Although Dr Hawke recommended the Act be repealed and replaced with a new Act, he also made 70 other recommendations to improve environmental management. As part of a national approach to environmental protection, Recommendation 4 called for, amongst other things, accreditation of state and territory processes where they meet appropriate standards. The setting of standards would be a Commonwealth responsibility.
Samuel review
1.21
The most recent review was led by Professor Graeme Samuel (the Samuel review). Professor Samuel handed the final report to the government on 30 October 2020, and it was publicly released on 28 January 2021.
1.22
Professor Samuel prefaced his report with the observation Australia's natural environment and iconic places are in an overall state of decline and are under increasing threat. The current environmental trajectory is unsustainable. He noted the Act does not enable the Commonwealth to effectively protect environmental matters that are important for the nation and is not fit to address current or future environmental challenges.
1.23
Professor Samuel stated for an outcomes-driven approach to environmental protection to replace the current process-driven approach:
The reforms recommended by this Review are not about the Commonwealth relinquishing its responsibilities. Rather, they are about the Commonwealth meeting its obligations in a more effective and efficient way, including by accrediting others to deliver against the National Environmental Standards. They enable the Commonwealth to lift its focus from process-driven project-level transactions to the achievement of national level environmental outcomes, and oversight of how the environmental management systems and project-level decisions of others contribute to outcomes.
1.24
The report called for new national environmental standards to be the centrepiece of fundamental reform of national environmental law. These legally enforceable standards would provide a clear pathway to accredit state and territory regulatory processes and environmental policies. Any accredited party would be required to make decisions in a way consistent with the standards. Only the Commonwealth minister would be able to make a decision inconsistent with the standards, and only when demonstrably in the public interest.
1.25
Professor Samuel undertook several rounds of consultation during the review, meeting with multitude stakeholders, including: state and territory governments; leading scientists; environmental law experts; industry organisations; environmental organisations; Indigenous knowledge and land management organisations; and committees and boards constituted under the Act. The standards proposed by Professor Samuel in the final report were separately informed by intensive consultations with a cross section of national‑level interest groups and leading experts who participated in fortnightly discussions on the core reform proposals.
1.26
The final report recommended three tranches of reforms, with the first tranche to be implemented immediately. Tranche 1 would include creating enforceable national environmental standards with stable accreditation settings and independent oversight.
1.27
The government responded that it is adopting a staged approach to implementing the recommendations of the Samuel review. The National Cabinet agreed the immediate priority was implementing single touch environmental approvals underpinned by national environmental standards and supported by strong assurance. Further phases of reform would build on the streamlining efforts to address other changes and improvements, taking into account the recommendations of the Samuel review.
1.28
The bill responds in part to two of the review's recommendations. Recommendation 3 specified the Act should be immediately amended to enable the development and implementation of legally enforceable national environmental standards, including:
setting out the process for making, implementing and reviewing national environmental standards, and including specific provisions about their governance, consultation, monitoring and review;
requiring that activities and decisions made by the minister under the Act, or those under an accredited arrangement, be consistent with the standards;
including a specific power for the minister to exercise discretion to make a decision that is inconsistent with the standards. The use of this power would be a rare exception and demonstrably justified in the public interest; and
requiring the standards to be first made in a way that takes account of the current legal settings of the Act.
1.29
Recommendation 23 called for the government to immediately establish, by statutory appointment, the position of Environment Assurance Commissioner with responsibility to, amongst other things:
oversee audits of decision-making by the Commonwealth under the Act;
oversee audits of an accredited party under an accredited arrangement;
conduct performance audits, like those of the Auditor General and set out in the Auditor-General Act 1997; and
provide annual reporting on the performance of Commonwealth and accredited parties against the standards.
Legislative reforms
1.30
The bill is the second of the government's reforms arising from the Samuel review. The first was the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020. In combination, the intent of the two bills is to create a single touch environmental approvals process.
Streamlining Environmental Approvals Bill
1.31
The streamlining and environmental approvals bill was introduced in the House on 27 August 2020 and passed on 3 September 2020. It was introduced in the Senate on 6 October 2020. The committee tabled a report on 27 November 2020. At the time of writing the government has not brought the bill on for debate.
1.32
The streamlining environmental approvals bill seeks to facilitate the devolution of environmental approvals to the states and territories. It aims to amend the Act to expand and clarify existing provisions relating to Commonwealth delegation of environmental approval powers through bilateral agreements.
1.33
It would provide for, amongst other things:
actions covered by bilateral agreements would not require referral to the Commonwealth for assessment or decision;
extending the types of authorisation processes that could be accredited;
the minister to make minor amendments to bilateral agreements;
a range of entities to make decisions including persons approved by the jurisdiction, such as local governments and councils;
bilateral agreements to apply to projects approved before a minister accredits a state or territory process; and
the minister to take into account all matters the minister considers relevant in deciding on accreditation.
Provisions of the bill
1.34
The bill contains two schedules:
Schedule 1 deals with environmental standards—it proposes amendments to the Act relating to bilateral agreements and provides for the making of standards;
Schedule 2 would establish an Environment Assurance Commission.
1.35
The following summarises key provisions in the bill.
Schedule 1—Bilateral Agreements and National Environmental Standards
1.36
Schedule 1 contains two key parts: proposed amendments that would require state and territory processes under bilateral agreements to be not inconsistent with any national environmental standards, and proposed amendments that would allow for the making of standards.
Bilateral agreements and standards
1.37
The Act currently provides for the making of bilateral agreements between the Commonwealth and the states and territories that protect the environment; promote the conservation and ecologically sustainable use of natural resources; ensure an efficient, timely and effective process for environmental assessment and approval of actions; and minimise duplication in assessment and approval processes.
1.38
Through this part of the Act, the Commonwealth can accredit jurisdictional processes for the assessment and/or approval of certain actions that would otherwise be made through the framework in the Act. Amendments in the bill would add an additional requirement to bilateral agreements that various aspects of the agreements and decisions made under those agreements be 'not inconsistent' with the standards.
1.39
Item 1 would insert a key requirement that the minister, when accrediting management arrangements or authorisation processes, be satisfied that if there are one or more national environmental standards, the management arrangement or authorisation process is not inconsistent with the standards. This is in addition to existing requirements in the Act about which the minister must be satisfied.
1.40
This provision would apply in relation to the accreditation of a management arrangement or an authorisation process on or after the commencement of the item (the day after the bill receives Royal Assent), whether the bilateral agreement was entered into before, on or after that commencement.
1.41
Item 2 proposes to substitute a new subsection that would establish pre‑requisites for a declaration that actions do not need assessment as controlled actions. It would allow the minister to enter into a bilateral agreement that actions need not be assessed if the assessment would include provisions containing requirements for environmental approvals, including those relating to matters of national environmental significance, and if there are national environmental standards, the assessment would not be inconsistent with the standards.
1.42
The proposed repeal and substitution of this subsection applies in relation to a bilateral agreement entered into on or after the commencement of the item (the day after the bill receives Royal Assent).
1.43
Item 3 proposes an amendment relating to the mandatory provisions of a bilateral agreement. It would require that a bilateral agreement does not have effect unless it includes a provision that if there are one or more national environmental standards, decisions approving the taking of actions in accordance with the bilaterally accredited management arrangement and the bilaterally accredited authorisation process would not be inconsistent with the standards.
1.44
The explanatory memorandum provides detail on how this provision would be implemented:
To satisfy this requirement, a provision of a bilateral agreement could set out the context by reference to which a decision under an accredited arrangement or process is determined to be not inconsistent with one or more national environmental standards that are in force and relevant to the decision. This context could include, for example, the collective impacts on protected matters of actions approved under the arrangement or process, the implementation of avoidance, mitigation and offset measures for all actions approved under the arrangement or process, and the implementation of other relevant environmental measures.
1.45
This amendment would apply in relation to a bilateral agreement entered into on or after the commencement of the item (the day after the bill receives Royal Assent).
1.46
Item 4 proposes a new arrangement relating to consultations prior to the cancelling or suspension of a bilateral agreement. It would require the minister to consult with the state/territory if the minister believes the state or territory has given effect or will give effect to the bilateral agreement in a way that is inconsistent with a national environmental standard. This would be in addition to existing requirements that decisions under bilateral agreements be made in compliance with objects of the Act and in a manner that meets Australia's international obligations.
1.47
This amendment would apply in relation to a bilateral agreement entered into before, on or after the commencement of the item (the day after the bill receives Royal Assent).
1.48
Item 5 includes a provision that would allow the minister to give a notice of suspension of an agreement if the minister is satisfied the state or territory has given effect, or will give effect, to the agreement in a way that is inconsistent with a national environmental standard.
1.49
This amendment would apply in relation to a bilateral agreement entered into before, on or after the commencement of the item (the day after the bill receives Royal Assent).
National environmental standards
1.50
Item 6 proposes to insert a new chapter into the Act.
Division 2—National environmental standards
1.51
The provisions relating to the making of national environmental standards would:
allow the minister, by legislative instrument, to make standards for the purposes of the Act;
specify a standard commences at least one month but not more than six months, after the day on which the standard is made;
exempt from disallowance, each of the first standards (interim standards) in relation to a particular matter; and
allow a standard to apply, adopt or incorporate, with or without modification, any matter contained in any other instrument or writing regardless of whether it exists at the time the standard is made. This would allow other materials to alter the operation of a standard, and requires subsection 14(2) of the Legislation Act 2003 to be set aside.
1.52
Amendments would allow the minister, by legislative instrument, to vary or revoke a national environmental standard and would allow the minister to incorporate other instruments or writing when varying a standard.
1.53
The proposed changes would allow for standards to specify circumstances in which a standard or variation would not apply in relation to a 'decision or thing'.
1.54
Amendments would deal with actions that would be required to occur when a standard is made, varied or revoked:
(1)
the minister must notify, in writing, the appropriate state or territory minister that is party to a bilateral agreement;
(2)
if a standard is made or varied, the minister must request the state or territory to advise whether any arrangement or authorisation process is inconsistent with the standard or varied standard, and whether any assessment of an action will be inconsistent with the standard or varied standard;
(3)
if the minister is satisfied the variation is minor, the actions at (2) need not occur.
1.55
The bill would provide for reviews of the standards:
the minister must cause reviews to be undertaken of each standard;
the first review must be undertaken within two years of the standard commencing;
later reviews must be undertaken at intervals of not more than five years;
the persons undertaking the review must give the minister a written report of the review; and
the report must be published on the Department's website.
Division 3—Requirements for decisions or things under this Act
1.56
The bill would also establish requirements for decisions or things under the Act, including:
a person making a decision or thing under the Act would need to be satisfied the decision or thing is not inconsistent with a national environmental standard;
the requirement that decisions or things be not inconsistent with a standard would only apply to decisions or things the minister has determined by legislative instrument;
if a decision must be not inconsistent with a standard, a person may consider whether impacts of an action might be balanced through other activities elsewhere. Thus, when considering whether a decision or thing is not inconsistent with a standard, the person may take into account any matter, including the following:
policies, plans or programs of the Commonwealth, state or territory;
funding by the Commonwealth, state or territory of activities related to the environment; and
funding by the Commonwealth, state or territory of activities related to the promotion, protection or conservation of heritage.
1.57
The bill proposes a public interest exception. This provision would allow the minister, by legislative instrument, to determine a decision or thing could be inconsistent with a national environmental standard. If the minister makes a legislative instrument to this effect, the minister would need to publish on the department's website as soon as practicable, the reasons why the minister was satisfied the decision or thing was in the public interest.
Schedule 2—Environment Assurance Commissioner
1.58
Schedule 2 proposes the creation of an Environment Assurance Commissioner.
Environment Assurance Commissioner
1.59
Item 1 proposes to insert a new Part into the Act.
Division 2—Establishment and functions of Environment Assurance Commissioner
1.60
The bill proposes amendments to establish an Environment Assurance Commissioner and sets out the commissioner's functions. The commissioner is proposed to have the following functions:
monitor and/or audit the operation of bilateral agreements;
monitor and/or audit processes under the Act in relation to:
the making of decisions under Part 7 about whether actions are controlled actions;
assessments under Part 8 of the relevant impacts of controlled actions;
approvals under Part 9 of the taking of controlled actions;
assessments under Division 1 of Part 10 (strategic assessments) of the impacts of actions and the approval of the taking of actions;
the giving of advice in relation to proposals to give authorisations of actions;
monitor and/or audit actions taken to monitor compliance with Part 3 (requirements for environmental approvals), Part 7 (deciding whether approval of actions is needed), and Part 9 (approval of actions) of the Act;
prepare reports on audits; and
any other functions prescribed by the Part or regulations.
1.61
The commissioner would be required to publish each audit report on the internet within 30 days of its completion.
1.62
Amendments would specify the commissioner cannot monitor or audit a single decision.
1.63
The commissioner would be able to request a person to provide information or documents, or answer questions in relation to the performance of the commissioner’s functions. The commissioner would not have the power to compel the production of documents or answers to questions.
Division 3—Appointment of Environment Assurance Commissioner and terms and conditions
1.64
The bill proposes a number of requirements with regard to the appointment of the commissioner, including:
the commissioner would be appointed by the Government-General by written instrument on a full-time or part-time basis;
the maximum term would be five years, but the commissioner would be able to serve up to two terms;
the minister would need to be satisfied:
the person has a high level of expertise in one or more fields relevant to the commissioner's functions;
the person has no conflicts of interest;
the minister could make acting appointments when there is a vacancy (the first appointment could be an acting appointment), or when the commissioner is absent or unable to perform their duties;
the commissioner would only be able to undertake other paid work if employed on a part-time basis, and the work must not, in the minister's opinion, conflict or potentially conflict with the performance of the commissioner's functions; and
the minister would be able to make additional terms and conditions beyond those established in the bill.
Division 4—Annual work plans
1.65
The bill would also provide for a range of steps with regard to the commissioner's annual work plans:
(1)
each financial year, the minister would give the commissioner a written statement of expectations for the year;
(2)
the commissioner would be required to have regard to the statement of expectations and prepare an annual work plan identifying the priorities for the commissioner;
(3)
the minister would be required to inform the commissioner the minister agrees with the plan, or request changes to the plan and provide reasons for the request;
(4)
the commissioner would be required to finalise the plan, having regard to changes the minister's requests;
(5)
the commissioner would give the minister a copy of the plan and publish on the internet: the finalised work plan, statement of expectations, any request to change the plan and the reasons; and
(6)
the commissioner would have the ability, in writing, to vary a work plan and would be required to give the minister a copy, and publish the varied work plan on the internet.
1.66
The finalised work plans, statements of expectations, and varied work plans would not be legislative instruments. This means they would not be tabled in the Parliament or subject to disallowance.
Division 5—Other matters
1.67
Directions from the minister—The commissioner would not be subject to directions by the minister in relation to the commissioner performing the commissioner's functions.
1.68
Requests from the minister—The minister would be able to request in writing that the commissioner perform certain of the commissioners functions, and would need to include reasons for the request. The commissioner would be required to agree or refuse to agree to the request, inform the minister in writing, and publish the documents on the internet within 30 days of making the decisions.
1.69
Resources—The commissioner would not be assigned specific resources. Under proposed amendments, the secretary of the department may make the services of APS employees available to assist the commissioner to perform the commissioner's functions. The bill's explanatory memorandum states the commissioner would be expected to cost the Commonwealth 'no more than $9 million over the next four years'.
1.70
Disclosure of information—Proposed amendments would allow the commissioner to disclose information, including personal information, to a range of persons and organisations, including, the minister, secretary of the department, APS employees in the department, members of committees established under certain provisions of the Act, and any other person or body prescribed by regulations.
1.71
Annual reporting—The commissioner would be required to prepare and give to the minister for presentation in the Parliament, a report about the commissioner's activities. This could be a stand-alone report, or included in the department's annual report. Amendments would require this to be published on the internet.
1.72
Delegation—Proposed amendments would allow the commissioner to delegate any or all the commissioner's functions and powers to the secretary or an SES employee in the department, aside from the requirement to finalise the annual work plan, agree or refuse a request from the minister to perform certain functions, and provide the annual report.
1.73
Schedule 2 would commence the day after the bill receives Royal Assent.
Scrutiny of Bills Committee report
1.74
The Scrutiny of Bills Committee (scrutiny committee) raised several concerns about provisions in the bill:
the standards being made by legislative instrument;
requirements for decisions or things under the Act being made by legislative instrument;
incorporation of external materials into the standards;
no requirement for the commissioner to table reports in the Parliament; and
privacy issues relating to disclosure provisions.
1.75
The scrutiny committee raised these concerns in its 17 March 2021 report, and requested further information from the minister. The minister's response and the scrutiny committee's view on the response were provided in the scrutiny committee's 21 April 2021 report. At the time of writing, there remains one issue outstanding (see below).
National environmental standards in delegated legislation
1.76
The scrutiny committee questioned the delegation of significant matters to regulation—specifically proposed subsection 65C(1) that allows the minister to make national environmental standards by legislative instrument.
1.77
The scrutiny committee's longstanding view is significant matters, such as matters that will be dealt with in national environmental standards, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. The scrutiny committee is of the view no such sound justification is provided in the bill's explanatory memorandum.
1.78
The government's claim in the bill's explanatory memorandum that exemption is necessary to provide certainty to the states and territories, and assurance to the public generally, and that processes under bilateral agreements meet necessary standards was not accepted by the scrutiny committee. The scrutiny committee pointed out:
instances of the disallowance procedure resulting in disallowance by the Parliament are very low;
there are alternative mechanism available to overcome any remaining uncertainty, such as having delegated legislation come into effect after the disallowance period has passed. Delayed commencement is already provided for in proposed subsection 65C(2).
1.79
The scrutiny committee's concern with such arrangements is that legislative instruments are not subject to the full range of parliamentary scrutiny that applies to an amending bill.
1.80
The scrutiny committee is of the view that at least high-level guidance in relation to the standards should be provided in the bill. This is particularly important given the first standards in relation to a particular matter will be exempted from disallowance—the primary means by which the Parliament can exercise control over delegated legislation.
1.81
The minister responded to the scrutiny committee's concerns. The minister stated the bill established a framework for the standards, and establishing the standards as a legislative instrument is good regulatory practice. The minister also defended exempting the first standards from disallowance as it would facilitate single touch environmental approvals, and providing for disallowance would 'undermine the collaborative efforts of all jurisdictions'. Any future variation to a standard will be subject to disallowance, thereby ensuring appropriate scrutiny. The minister stated it would not be possible to include high-level guidance in the bill as to the content of the standards because over time as new information becomes available and circumstances change, new standards would be required.
1.82
The scrutiny committee considered the minister's response and reiterated its view that a desire for certainty is unlikely to be sufficient justification for exempting delegated legislation from the parliamentary disallowance process; instances of disallowance are low; there are other mechanisms available to overcome any uncertainty. The absence of legislative guidance on the content of the standards heightens the scrutiny committee’s concerns. The scrutiny committee stated:
…it appears these standards are intended to be a core element of future decision-making around environment and heritage, such that the potential absence of any parliamentary involvement or oversight of the content of the standards is significant and may be an inappropriate delegation of the legislative power of the Parliament.
1.83
The scrutiny committee added, given there is no requirement in the bill that standards must be varied or remade following a first review, the interim national environmental standards could continue in existence indefinitely without ever being subject to parliamentary oversight. It further pointed to the limitation of the provisions in the bill as regards parliamentary oversight:
…while a subsequent variation of the standards may be subject to parliamentary disallowance, this will only provide an opportunity to examine the matters that are included in the instrument of variation, rather than the standards as a whole.
1.84
The scrutiny committee requested the minister's further advice as to whether the bill could be amended to provide certainty in relation to the first standards made under proposed section 65C by:
requiring the positive approval of each House of the Parliament before the first standards come into effect; or
providing that the first standards do not come into effect until a disallowance period of five sitting days has expired.
1.85
If the minister did not consider such an amendment appropriate, the committee requested the minister's further advice as to whether, at a minimum, the bill could be amended to provide for the automatic repeal of the first standards following the first review of a standard undertaken in accordance with proposed subsection 65G(2).
1.86
This issue remains outstanding at the time of the writing of this report.
Requirements for decisions or things under the Act in delegated legislation
1.87
The scrutiny committee raised concerns about proposed subsections that would allow the minister, by legislative instrument, to exempt certain decisions or things under the Act from the requirement to be 'not inconsistent' with a national environmental standard. It also raised concerns about a provision that would allow for a national environmental standard to specify circumstances in which the standard does not apply to a decision or thing.
1.88
The scrutiny committee is of the view the range of matters that must be consistent with a national environmental standard or exempt from requirements to be consistent with a national environmental standard are significant matters that should be included in primary legislation. The explanatory memorandum contains no justification for such matters to be set out in delegated legislation.
1.89
The scrutiny committee is also of the view the provisions appear to provide the minister with broad power to determine significant matters and at least high‑level guidance in relation to the matters should be provided on the face of the bill.
1.90
The minister responded the provision provides the necessary flexibility to apply the standards to different decisions or 'things gradually as standards are developed and made over time'. This means the Act does not need to be amended each time a new decision or thing is determined to be subject to a standard or public interest exemption. The minister declined to include guidance in the bill as to decisions or things that must not be inconsistent with a national standard or subject to the public interest exemption because the content of any such determination will be dependent on the nature and purpose of the standards to be made.
1.91
The scrutiny committee noted the response from the minister and reiterated its view that a desire for administrative flexibility is generally not, of itself, sufficient justification for the inclusion of significant matters in delegated legislation. These concerns are heightened by the exemption from disallowance. The scrutiny committee draws its concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving the determination of decisions or things that must be consistent with a national environmental standard, or are exempt from requirements to be consistent with a national environmental standard, to delegated legislation.
Incorporation of external materials
1.92
Proposed amendments would allow for a standard to apply, adopt, or incorporate any matter contained in any other instrument or writing as in force or existing from time to time. The scrutiny committee warned such provisions:
raise the prospect of changes being made to law in the absence of parliamentary scrutiny because future changes to an external document could operate to change the law without any involvement from the Parliament;
can create uncertainty in the law; and
may result in those obliged to obey the law having inadequate access to its terms if the relevant information is not publicly available or requires the payment of a fee.
1.93
The scrutiny committee acknowledged a standard may legitimately need to reference Australia's obligations under international conventions or refer to Commonwealth instruments such as conservation advices, which may exist from time to time. However, the standards would set out significant matters in relation to decision-making about environment and heritage matters and the scrutiny committee was concerned incorporation of external documents in force 'from time to time' may operate to change the requirements set out in the instruments without any involvement from Parliament.
1.94
The minister responded it was in fact necessary to allow the standards to incorporate documents as in force or existing from time to time to ensure the standards remained contemporary, and noted the practice was consistent with the current operation of the Act. The provision would allow for standards to make reference to Commonwealth instruments and conservation advices, and reflect the latest scientific information. Absent this provision, the minister claimed the ability of the standards to achieve their stated environmental outcomes would be diminished over time.
1.95
The scrutiny committee requested the minister make an addendum to the explanatory memorandum containing key information provided by the minister to the scrutiny committee. It requested this be tabled in the Parliament as soon as practicable, noting the importance of explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation.
Tabling of reports on review of the standards
1.96
The scrutiny committee raised concerns the reports produced by persons undertaking a review of a standard are not required to be tabled in the Parliament. The process of tabling alerts parliamentarians to the existence of a report and provides opportunities for debate. Not providing for these reports to be tabled thus reduces the scope for parliamentary scrutiny. The scrutiny committee requested the bill be amended to provide that the report of a review of the standards must be tabled in each House of the Parliament.
1.97
The minister responded it was not necessary that a report of a review into a national environmental standard be tabled in the Parliament for there to be opportunities for parliamentary scrutiny of the findings of the report. If a standard is varied as a consequence of the review, the instrument of variation would be subject to disallowance, thereby ensuring parliamentary scrutiny of 'the more substantive matter'.
1.98
The scrutiny committee was unmoved by the minister's response, pointing out the process was not an adequate substitute for a legislative tabling requirement, particularly as there is no requirement that environmental standards be varied as a result of a review, and that the first standards are exempt from disallowance. The scrutiny committee draws its concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of not providing for review reports to be tabled in the Parliament.
Privacy
1.99
Under proposed amendments, the Environment Assurance Commissioner would be authorised to disclose information, including personal information, to a range of persons. Proposed amendments would allow regulations to specify additional persons or bodies to whom information could be disclosed or documents provided.
1.100
The scrutiny committee expressed its view the provision is a significant matter and should be included in primary legislation unless a sound justification for the use of delegated legislation is provided—no sound justification is provided in the bill's explanatory memorandum.
1.101
Any such legislative instrument would not be subject to the full range of scrutiny and the committee sought high-level guidance in relation to the matter being provided for on the face of the bill.
1.102
The minister responded that the provision recognises that once the commissioner has been established and is exercising the commissioner's functions, it may become necessary for the commissioner to disclose information or provide a document to a person or body not listed in the bill. Providing for additional persons or bodies to be prescribed in regulation would ensure the necessary level of flexibility. Any such regulation would be a legislative instrument and subject to parliamentary scrutiny and disallowance. The minister declined to provide additional high-level guidance, stating it was 'not possible at this time'.
1.103
The scrutiny committee was not persuaded by the minister's explanation and reiterated its consistent view that a desire for administrative flexibility is not, of itself, sufficient justification for including significant matters to delegated legislation. It draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of the provision.
Statement of compatibility with human rights
1.104
The bill's explanatory memorandum states the bill does not engage any of the applicable rights or freedoms, and the measures are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
1.105
The Parliamentary Joint Committee on Human Rights considered the bill and had no comment.