RELATED KNOWLEDGE
Last week, the Federal Environment Minister, Sussan Ley, introduced the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 (Standards and Assurance Bill), providing for the creation and implementation of the National Environmental Standards (NES) and the creation of a new statutory Environment Assurance Commissioner (EAC).
This new Bill supplements and supports the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (2020 EPBC Bill) introduced last year, which aims to establish the legal framework for streamlined approvals via bilateral agreements with States and Territories.
The Standards and Assurance Bill follows on from the Final Report of the Independent Review of the EPBC Act released earlier this year. While the Bill adopts some of the overall concepts recommended in the Final Report, there are a number of other recommendations related to the recommended NES that are still to be responded to by Government.
The Final Report recommended the introduction of legally enforceable NES to act as the centrepiece of the fundamental reform. The Final Report opined that the NES should be a set of binding and enforceable regulations that could be applied to multiple scales of decision-making and that decisions should be consistent with the NES.
The Final Report included, as appendices, fully-drafted recommended NES for immediate adoption and implementation that addressed significant areas of concern, including matters of national environmental significance (MNES) and Indigenous engagement and participation in decision-making. Government has not indicated that the NES in the Final Report will be adopted, and alternative NES have not been officially released.
The Standards and Assurance Bill outlines a framework for making, varying, revoking and applying the NES. The Minister will have the power to make the NES which will "underpin accredited environmental assessment and approval processes under bilateral agreements with states and territories, as well as certain decisions or things" under the EPBC Act. These "certain decisions or things" to which the NES apply, will be determined by the Minister on a case-by-case basis.
The Minister will have the ability to make a decision, or do a thing, that is inconsistent with a NES if the Minister is satisfied that it is in the public interest to do so and provided reasons are publicly available for the decision. According to the Explanatory Memorandum for the Bill, whether a decision or thing is "not inconsistent" with a NES can be determined "by reference to a range of factors including policies, plans, programs and funding activities of the Commonwealth, states or territories".
Under the Standards and Assurance Bill, when a NES is first made, it will be treated as an "interim" NES until it has been reviewed, which must occur within two years of the NES commencing. A NES will commence between one month and six months after it is made to enable processes to which a new NES relates to be revised and updated as required. Subsequent reviews of NES are required at least every five years and are initiated by the Minister, who determines the appropriate persons or bodies to be involved in the review. It is also the Minister who has the power to vary or revoke a NES.
In relation to the accreditation of State and Territory environmental assessment and approvals processes for an approval bilateral agreement, and the entry into an assessment bilateral agreement, under the Standards and Assurance Bill, the Minister will need to be satisfied that "the relevant State or Territory management arrangement, authorisation process, or the manner in which the impacts of an action will be assessed, is not inconsistent with one or more National Environmental Standards in force". It will be open to the Minister to suspend and/or cancel a bilateral agreement if a process that underpins an approval bilateral agreement is inconsistent with a new or varied NES.
The Environmental Assurance Commissioner
The new Bill establishes the EAC, as an independent, statutory position within the Department, to monitor and/or audit the operation of bilateral agreements with the States and Territories and Commonwealth processes under the EPBC Act for making and enforcing approval decisions.
The EAC is appointed by the Governor-General and cannot hold the position for more than 5 years (unless reappointed for another 5-year term).
The powers of the AEC will include monitoring and auditing the:
- implementation of the NES by the States and Territories,
- adherence to the provisions of bilateral agreements by the States and Territories;
- compliance with accredited processes when the States and Territories are approving actions in accordance with the accredited processes;
- the processes for :
- making controlled action decisions under Part 7 of the EPBC Act;
- the assessment of the relevant impacts of controlled actions under Part 8 of the EPBC Act; and
- the approval of the taking of controlled actions under Part 9 (including decisions to attach conditions to an approval).
The AEC's functions do not include the monitoring or auditing of "single decisions", although the AEC can undertake an audit by reference to a "sample of conditions". Further, the AEC will not bound by any directions from the Minister.
Next steps
On 25 February 2021, the Senate referred the Standards and Assurance Bill to the Senate Environment and Communications Legislation Committee for inquiry and report by 1 June 2021.
The Committee is accepting submissions up until 25 March 2021. To have your say, you can lodge a submission here.