Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 - Commentary on Ministerial Responses [2020] AUSStaCSBSD 165 (7 October 2020)

• Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020
• Incorporation of materials as in force from time to time1

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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
Bill status	Before the Senate

Incorporation of materials as in force from time to time^[1]

2.24 In Scrutiny Digest 11 of 2020 the committee requested the minister's 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.^[2]

Minister's response^[3]

2.25 The minister advised:

Under section 46AA of the Acts Interpretation Act 1901 (the AI Act), instruments made under Commonwealth Acts (other than legislative instruments within the meaning of the Legislation Act 2003 or rules of court):

• May apply, adopt or incorporate the provisions of a Commonwealth Act or legislative instrument as in force at a particular time, or as in force from time to time; and

• May only apply, adopt or incorporate the provisions of any other instrument or writing as in force at a particular time, unless the Commonwealth Act under which the instrument is made allows otherwise.

Section 46AA of the AI Act applies to bilateral agreements made under the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act). Due to the operation of section 46AA of the AI Act and the current provisions of the EPBC Act, bilateral agreements may only apply, adopt or incorporate a document or other instrument (other than Commonwealth Acts or legislative instruments) that is in force at a particular time (for example, at the time of, or before, the making of a bilateral agreement). Bilateral agreements may not apply, adopt or incorporate documents or other instruments as in force from time to time.
The intention of proposed section 48AA is to enable bilateral agreements to apply, adopt or incorporate instruments or other writings either as in force at a particular time, or as in force or existing from time to time. This may include, for example:

• Commonwealth legislative instruments such as recovery plans or threat abatement plans prepared for listed threatened species and ecological communities. As these documents are legislative instruments, they are freely available on the Federal Register of Legislation.

• Commonwealth instruments such as approved conservation advices prepared for listed threatened species or ecological communities. While conservation advices are not legislative instruments, they must be published on the internet (section 266B of the EPBC Act).

• Commonwealth policies such as the Significant Impact Guidelines or the EPBC Environmental Offsets Policy. Documents such as this are freely available on the Department's internet site.

• State or territory Acts and subordinate legislation. These documents are freely available through the repositories of legislation published on state or territory government internet sites.

The incorporation of state or territory Acts or subordinate legislation into bilateral agreements as in force or existing from time to time will also be subject to the processes set out in proposed sections 46A and 47A. Proposed sections 46A and 47A facilitate minor amendments to a bilaterally accredited management arrangement or authorisation process for the purposes of an approval bilateral agreement, or the specified manner in which actions are assessed for an assessment bilateral agreement.

• State or territory policies and plans. Generally speaking, states and territories will have policies and/or plans that are specifically relevant to their assessment and approval processes. It is my expectation that these documents would be made freely available.

As stated in the Explanatory Memorandum, the ability to allow documents of this nature to be applied, adopted or incorporated into a bilateral agreement either as in force at a particular time, or as in force or existing from time to time, will ensure that environmental assessment and approval decisions are based on the best scientific information 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.

Committee comment

2.26 The committee thanks the minister for this response. The committee notes the minister's advice that proposed section 48AA is intended to enable bilateral agreements to apply, adopt or incorporate instruments or other writings either as in force at a particular time, or as in force or existing from time to time.

2.27 The committee also notes the minister's advice regarding the types of documents that may be incorporated into bilateral agreements, such as Commonwealth legislative instruments, Commonwealth policies, state or territory Acts and subordinate legislation, and State or territory policies and plans. The committee notes the minister's advice that these writings are either freely available, or are expected to be made freely available.

2.28 The committee further notes the minister's advice that the ability to incorporate documents as in force from time to time will ensure that environmental assessment and approval decisions are based on the best scientific information.

2.29 The committee takes this opportunity to reiterate that it is a fundamental principle of the rule of the law that every person subject to the law should be able to freely and readily access its terms. As a result, the committee will have scrutiny concerns when external materials that are incorporated into the law are not freely and readily available to persons to whom the law applies, or who may otherwise be interested in the law. 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.

2.30 While the committee welcomes the minister's advice that it is expected that Commonwealth and state and territory policies and plans that are incorporated into bilateral agreements will be made freely available, the committee notes that there is no requirement for such documents to be made freely available on the face of the primary legislation.

2.31 In light of the committee's scrutiny concerns and the minister's advice that it is expected that incorporated documents will be made freely available, the committee requests the minister's further advice as to whether the bill could be amended to require, on the face of the primary legislation, that any document incorporated into a bilateral agreement must be made freely available.

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

[2] Senate Scrutiny of Bills Committee, Scrutiny Digest 11 of 2020, pp. 11-12.

[3] The minister responded to the committee's comments in a letter dated 16 September 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 13 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest