Breellen Warry, Partner and Katharine Huxley, Associate at Holding Redlich share an update into the evolving situation with reforms to the Environment Protection Biodiversity Act 1999, as the Parliament considers Standards and Assurance Bill.
On 25 February 2021, the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 (the Standards and Assurance Bill) was introduced into the House of Representatives, following heavy scrutiny of the earlier Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (Streamlining Bill). Our previous update on the Streamlining Bill can be read here.
The Standards and Assurance Bill aims to further two key recommendations that came out of the independent statutory review of the EPBC Act led by Professor Graeme Samuel (the Samuel review) that were not provided for in the Streamlining Bill. The Final Report in the Samuel review, published October 2020, (Final Report) stated:
“National Environmental Standards should be made immediately in early 2021, supported by reforms to implement an independent Environment Assurance Commissioner, expert advisory committees, transparent decision-making, access to data and information, strong independent compliance and enforcement, effective monitoring and evaluation, access to justice and exploring investment in restoration. Comprehensive enabling reforms should be completed within 12 months. A full overhaul of the EPBC Act should be completed by 2022.”
The Standards and Assurance Bill addresses two of these recommendations by:
- Providing a framework for making, amending and applying National Environmental Standards (NES) to bilateral agreements with states and territories; and
- Establishing an Environment Assurance Commissioner (EAC) to monitor and/or audit bilateral agreements with the states and territories, and processes under the EPBC Act for making and enforcing approval decisions.
National Environmental Standards
The Standards and Assurance Bill provides that the Minister may make, vary and revoke NES by way of legislative instrument. When making a decision or determination under the EPBC Act, the decision maker would need to be satisfied that the decision or thing that they are determining is not inconsistent with the NES. Of note, under the Standards and Assurance Bill, assessments and approval processes carried out under bilateral agreements will also need to be consistent with the NES, once the NES are prescribed by the Minister.
An exception to this is proposed, allowing the Commonwealth Minister for the Environment to make a decision that is inconsistent with the NES if they determine that it is in the public interest to do so. Such a decision will need to be accompanied by a statement of reasons, published on the department’s website.
The Standards and Assurance Bill contemplates a first review of NES made under the Act within 2 years, with ongoing reviews occurring at least once every 5 years.
Environment Assurance Commissioner
Under the Standards and Assurance Bill, the EAC would be tasked with functions including monitoring and/or auditing the operation of bilateral agreements, the processes under the Act with respect to controlled actions, compliance with the EPBC Act and reporting on audits conducted. These functions would be directed at the high level operation of agreements and operations, and the Standards and Assurance Bill expressly excludes from these functions the monitoring or audit of any single decision made.
The EAC would also be required to prepare an annual written work plan that sets the priorities for the year which will be published online.
It is proposed that the EAC will be appointed by the Governor-General for a term not exceeding 5 years and may be appointed for no more than 2 terms. The position would be supported by employees within the Department of Agriculture, Water and the Environment.
The establishment and operation of the EAC is estimated to cost $9m over the next four years.
The Standards and Assurance Bill was referred by the Senate to the Environment and Communications Legislation Committee on 25 February 2021. Submissions to the Committee on the Standards and Assurance Bill closed on 25 March 2021. The Committee is due to conclude its inquiry and report on the Standards and Assurance Bill by 1 June 2021.
While the Standards and Assurances Bill proposes a framework for the creation of NES, it is yet to be seen whether the Minister will create NES in accordance with the recommendations of the Samuel review. As such, the devil really will be in the detail.
In this regard, the Final Report recommended that the full suite of NES should include standards for:
- matters of national environmental significance
- Commonwealth actions and actions involving Commonwealth land
- transparent processes and robust decisions, including:
- judicial review
- community consultation
- adequate assessment of impacts on MNES – including climate considerations
- disclosure of emissions profile
- quality regional planning
- Indigenous engagement and participation in decision-making
- compliance and enforcement
- data and information
- environmental monitoring and evaluation of outcomes
- environmental restoration, including offsets
- wildlife permits and trade.
In her second reading speech for the Standards and Assurance Bill, the Honourable Minister Ley again noted that the reform to the EPBC Act following the Samuel review will be carried out in tranches, with further amendments to come in consultation with stakeholders.
 Standards and Assurance Bill ss 65C and 65D.
 Standards and Assurance Bill s 65H.
 Standards and Assurance Bill s 65H(7).
 Standards and Assurance Bill s 65G.
 Standards and Assurance Bill s 501C.
 Standards and Assurance Bill s 501C(3).
 Standards and Assurance Bill s 501P.
 Standards and Assurance Bill s 501D.
 Standards and Assurance Bill s 501T.
 Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 Explanatory memorandum.
 Final Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999, Appendix B.
Breellen Warry is a Partner within the Property and Projects team and specialises in environmental, development and planning and natural resources law. Breellen advises both private and public sector clients across various industries on planning, environment and government matters and has worked both within and for government agencies in NSW and in the UK. You can connect with Breellen via email or LinkedIn
Connect with Katharine Huxley via LinkedIn