The Commonwealth Government has introduced the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 (Bill) to establish a framework for making National Environmental Standards (NES) and establishing an Environment Assurance Commissioner (Commissioner).
- The NES will be established as a regulation and will underpin bilateral agreements, decisions and actions under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
- Bilateral agreements, decisions and actions under the EPBC Act must not be inconsistent with the NES.
- The Environment Assurance Commissioner will have power to audit and monitor a range of processes and actions under the EPBC Act, but this does not extend to monitoring individual approval decisions.
The Bill is the second round of legislative amendments associated with the Independent Review of the EPBC Act. See our earlier posts on the Interim Report, Final Report and EPBC Amendment (Streamlining Environmental Approvals) Bill 2020) which set out the background to the establishment of NES and the Environment Assurance Commissioner.
National Environmental Standards
- NES will be established as a regulation to the EPBC Act.
- NES form the centerpiece of the recommendations of the Independent Review and are intended to establish clear environmental outcomes for proponents and decision makers. The Commonwealth Government is currently consulting on draft interim NES.
- The Minister for the Environment (Minister) will have power to vary or revoke the NES.
- NES must be reviewed within two years of commencing, with subsequent reviews occurring within five year intervals thereafter.
Effect of the NES
The Bill contemplates that the NES will underpin two broad categories of actions and processes under the EPBC Act, namely:
- Bilateral agreements: Accredited environmental assessment and approval processes under bilateral agreements must not be inconsistent with the NES. If the Minister believes a State or Territory will implement a bilateral agreement in a manner that may be inconsistent with a NES, the Minister may suspend or cancel all or part of the bilateral agreement.
- Decisions and actions under the EPBC Act: A person making a decision or doing a thing (action) under the EPBC Act must be satisfied that the decision or action is not inconsistent with the NES. The Minister will have power to make a decision which is inconsistent with a NES if it is in the public interest to do so.
We will continue to monitor the status of the draft interim NES and provide further updates once the proposed NES regulation is released.
Environment Assurance Commissioner
- The Commissioner will have power to monitor or audit:
- the operation of bilateral agreements;
- processes under the EPBC Act (such as making decisions about whether actions are controlled actions and the taking or impact of controlled actions); and
- actions taken to monitor compliance.
- The Explanatory Memorandum states that the role of the Commissioner will be established over the next four years.
- The Commissioner will be appointed by the Governor General for a term of no more than five years.
Effect of the Commissioner
The purpose of the Commissioner is to instill greater confidence in how the EPBC Act is administered. To that end, the Commissioner has powers to monitor and review a broad scope of processes under the EPBC Act. The role is not, however, without its limits. The Bill expressly prohibits the Commissioner from considering individual approval decisions made under the EPBC Act.
It remains to be seen exactly how the Commissioner will undertake this role and the kind of influence that the Commissioner could have on the operation of the EPBC Act. We anticipate it may take a number of years following the amendments taking effect for the role of the Commissioner to be fully developed.
The full text of the bill and explanatory memorandum can be found here.
By Peter Briggs, Partner, Heidi Asten, Partner, Melanie Debenham, Partner and Brigitte Rheinberger, Solicitor.