Less than a month after the release of the Final Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), the Government has sought to introduce new legislation which would:
We previously reported on the key findings and recommendations of the Interim Report and the Final Report, which included both the making of Standards and establishment of the new statutory office of the Environment Assurance Commissioner. On 25 February 2021, when the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 (Bill) was introduced to the Lower House, federal Minister for the Environment, Ms Sussan[JWS1] Ley, stated that:
“…leaders have agreed that the immediate priority for reform is to implement single-touch environmental approvals, underpinned by national environmental standards that reflect the current requirements of the EPBC Act … to provide oversight and confidence that single touch approvals systems are working as intended, are upholding the requirements of the EPBC Act and are achieving the national environmental standards, the bill also establishes a new, independent, statutory position – the Environment Assurance Commissioner”.
Under the proposed reforms to the EPBC Act, the Minister will be empowered to make Standards which set requirements for decision-making to deliver outcomes for the environment and heritage. Such Standards will be applied to decisions nationwide, regardless of the jurisdiction, and will underpin both accredited environmental assessment and approval processes under bilateral agreements, and certain “decisions or things” made or done under the EPBC Act.
In both the Interim and Final Reports, Professor Samuel recommended that Standards be introduced to apply to all aspects of the assessment, approval and post-approval processes under the EPBC Act. Although the Bill seeks to merely implement a statutory framework for the subsequent creation of Standards as legislative instruments, Ms Ley noted in her Second Reading Speech that the Government will be prioritising the development of interim Standards for matters of national environmental significance (MNES) which reflect the existing requirements of the EPBC Act and ensure that the existing rules are clear. From the emphasis in the Second Reading Speech and Explanatory Memorandum on bilateral approval agreements, it is possible that the Minister will then seek to approve bilateral approval agreements across all jurisdictions in line with existing requirements subject to being able to obtain the agreement of each individual state and territory.
As noted by Professor Samuel in the Interim Report, approval bilateral agreements have to date not been implemented due to what he called an “inherently fragile” mechanism to devolve approval decisions. For instance, statutory amendments enabling the Commonwealth to complete an assessment and approval where a state or territory is unable to, as well as to ensure agreements can endure minor amendments to state and territory settings, rather than requiring bilateral agreements to be remade (and hence be subject to disallowance by the Commonwealth on each occasion), failed to garner support as far back as 2015, which might have otherwise allowed bilateral approval agreements to be implemented.
The Bill proposes to change the way bilateral approval and assessment agreements are made:
“Decisions or things”
The Minister may, by instrument, determine that any decision or thing is not to be inconsistent with a Standard. Consistency of decisions made or things done with a given Standard will be measured by reference to Commonwealth or state/territory policies, plans or programs, among other things.
Other key features of the Standards include:
In addition to introducing a framework for the implementation of Standards, the proposed Bill creates an independent statutory position of Environment Assurance Commissioner (Commissioner) that would sit within the Department and provide oversight of environmental assessment and approval systems to measure whether the outcomes of the Standards are being achieved. The Explanatory Memorandum to the Bill makes clear that the Commissioner’s assurance functions will be at a systems level, rather than extending to the oversight of individual decisions.
The Commissioner is proposed to have both auditing and monitoring functions, for instance in relation to the implementation of Standards by states and territories, and the processes for making controlled action decisions, for assessing the relevant impacts of controlled actions, and for approving the taking of controlled actions, including decisions as to the attachment of conditions of approval. The Commissioner’s oversight is also proposed to extend to processes for assessing impacts of an action under a strategic assessment and granting strategic assessment approval. The Commissioner will be required to publish audit reports, as well as annual work plans and annual reports.
In combination with the EPBC Amendment (Streamlining Environmental Approvals) Bill 2020 which was introduced to Parliament in August 2020 and is currently before the Senate (see our earlier article on this topic), this Bill marks a significant step in the Government’s implementation of the recommendations of the Samuel Review. It is clear the Government has prioritised the development of Standards in its agenda for reform, which it hopes will pave the way for a system of single-touch environmental approvals and the implementation of bilateral approval agreements, which to date has failed to be achieved.
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