Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 [2020] AUSStaCSBSD 140 (2 September 2020)

• Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020
• Incorporation as in force from time to time 11

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Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020

Purpose	This bill seeks to amend the Environment Protection and Biodiversity Conservation Act 1999 to facilitate the devolution of environmental approvals to the states and territories, making technical amendments to the existing provisions of the Act relating to bilateral agreements to support the efficient, effective and enduring operation of bilateral agreements
Portfolio	Environment
Introduced	House of Representatives on 27 August 2020

Incorporation as in force from time to time ^[11]

1.26 Item 9 of Schedule 5 to the bill seeks to insert proposed section 48AA into the Environment Protection and Biodiversity Conservation Act 1999. Proposed section 48AA provides that a bilateral agreement may apply, adopt or incorporate an instrument or other writing as in force or existing from time to time even if the instrument or other writing does not yet exist when the agreement is entered into.

1.27 At a general level, the committee will have scrutiny concerns where provisions in a bill allow the incorporation of legislative provisions by reference to other documents because such an approach:

• raises the prospect of changes being made to the law in the absence of Parliamentary scrutiny, (for example, where an external document is incorporated as in force 'from time to time' this would mean that any future changes to that document would operate to change the law without any involvement from Parliament);

• can create uncertainty in the law; and

• means that those obliged to obey the law may have inadequate access to its terms (in particular, the committee will be concerned where relevant information, including standards, accounting principles or industry databases, is not publicly available or is available only if a fee is paid).

1.28 As a matter of general principle, any member of the public should be able to freely and readily access the terms of the law. Therefore, the committee's consistent scrutiny view is that where material is incorporated by reference into the law it should be freely and readily available to all those who may be interested in the law.

1.29 The explanatory memorandum states:

Bilateral agreements may make reference to a range of Commonwealth, State or Territory instruments, policies or other documents including, for example, significant impact guidelines and species survey guidelines. State or Territories may also have policies that are specifically relevant to their assessment and approval processes.
To ensure ongoing continuous improvement and to allow for the maintenance of high standards for environmental approval, the Commonwealth or a State or Territory may update or revise instruments and policies from time to time. The application of the most current instruments and policies reflects the importance of ensuring that environmental assessment and approval decisions are based on the best scientific information available so that actions assessed and approved by the State or Territory under the bilateral agreement will not have unacceptable or unsustainable impacts on matters of national environmental significance.^[12]

1.30 While noting this explanation as to the rationale for allowing bilateral agreements to incorporate external documents, the committee notes that it is not clear whether the documents so incorporated will be freely and readily available to all those who wish to access them. The committee's scrutiny concerns are heightened by the potentially significant matters relating to environmental protection that may be incorporated by reference in this instance.

1.31 Noting the above comments, the committee requests the minister's more detailed advice as to the type of documents that it is envisaged may be applied, adopted or incorporated by reference under proposed section 48AA and, in particular, whether these documents will be made freely available to all persons interested in the law.

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[11] Schedule 5, item 9, proposed section 48AA. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).

[12] Explanatory memorandum, p. 19.