Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 - Commentary on Ministerial Responses [2020] AUSStaCSBSD 192 (11 November 2020)

• Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020
• Incorporation of materials as in force from time to time7

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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^[7]

2.16 The committee initially scrutinised this bill in Scrutiny Digest 11 of 2020 and requested the minister's advice.^[8] The committee considered the minister's response in Scrutiny Digest 13 of 2020 and requested 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.^[9]

Minister's response^[10]

2.17 The minister advised:

I appreciate the importance of ensuring that documents relating to accredited state and territory assessment and approval processes are made freely available to the public. I have previously advised the Committee that the type of documents that may be incorporated into bilateral agreements would either be freely available or expected to be made freely available (for example, state or territory policies and plans relevant to assessment and approvals processes).
Further to this, it is intended that approval bilateral agreements will include a requirement that states and territories publish relevant information on the Internet relating to the assessment and approval process that assist decision-makers to exercise their functions and powers under an accredited process. This information would include rules, guidelines, practices or precedents.
I am satisfied that this approach will support appropriate access and transparency, without the need for further legislative provisions.

Committee comment

2.18 The committee thanks the minister for this response. The committee notes the minister's advice that the type of documents which may be incorporated into bilateral agreements will be either freely available or expected to be so. The committee further notes the minister's advice that it is intended that bilateral agreements will require states and territories to publish relevant information online including rules, guidelines, practices and precedents. While the committee welcomes this advice, the committee reiterates that there is no requirement for such documents to be made freely available on the face of the primary legislation.

2.19 The committee takes this opportunity to reiterate that it is 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.

2.20 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister in both of her responses to the committee be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.21 The committee otherwise draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of the bill not requiring documents incorporated into bilateral agreements to be freely available.

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

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

[9] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2020, pp. 27-30.

[10] The minister responded to the committee's comments in a letter dated 20 October 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 15 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest