Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 - Commentary on Ministerial Responses [2021] AUSStaCSBSD 123 (16 June 2021)

• Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021
• Significant matters in delegated legislation
• Exemption from disallowance8
• Incorporation of external materials existing from time to time 15
• Minister's response

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Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021

Purpose	This bill seeks to establish a framework for making, varying, revoking, and applying National Environment Standards. It further seeks to establish an Environment Assurance Commissioner to undertake transparent monitoring and/or auditing
Portfolio	Environment
Introduced	House of Representatives on 25 February 2021
Bill status	Before the House of Representatives

Significant matters in delegated legislation
Exemption from disallowance^[8]

2.12 The committee initially scrutinised this bill in Scrutiny Digest 5 of 2021, and requested the minister's advice.^[9] The committee considered the minister's response in Scrutiny Digest 6 of 2021 and requested the minister's further advice as to whether the bill can be amended to provide certainty in relation to the first standards made under proposed section 65C by:

• requiring the positive approval of each House of the Parliament before the first standards come into effect; or

• providing that the first standards do not come into effect until a disallowance period of five sitting days has expired.

2.13 If such an amendment is not considered appropriate, the committee also requested the minister's further advice as to whether, at a minimum, the bill can be amended to provide for the automatic repeal of the first standards following the first review of a standard undertaken in accordance with proposed subsection 65G(2).^[10]

Minister's response^[11]

2.14 The minister advised:

The Committee has requested advice as to whether the Bill could be amended to provide certainty to the first standards made under proposed section 65C by either, requiring the positive approval of each House of the Parliament before the first standards come into effect, or by providing that the first standards do not come into effect until a disallowance period of five sitting days has expired.
At the National Cabinet meeting of 11 December 2020, all leaders reaffirmed their commitment to implement single touch environmental approvals and agreed the immediate priority was the development of standards that reflect the current requirements of the EPBC Act. Requiring the positive approval of each House of the Parliament before the first standards come into effect, or providing for a shorter period of disallowance after which the standards commence would delay the transition to single touch environmental approvals. This is because it would reduce the certainty required for the benchmarking of state and territory processes, the commitment states and territories must make to not act inconsistently with the standards, and agreement to the terms of approval bilateral agreements.
The Committee has also requested advice as to whether, at a minimum, the Bill can be amended to provide for the automatic repeal of the first standards following the first review of a standard in accordance with proposed subsection 650(2).
The automatic repeal of the first standards following a review would also create uncertainty and delay the transition to single touch environmental approvals. In addition, any instrument varying or remaking the first standards will be subject to disallowance as the exemption from disallowance only applies to the first standard made in relation to a particular matter (proposed subsection 65C(3)).
The Bill requires the first review of a standard to be undertaken within 2 years of the standard commencing. As I committed during my second reading speech, I intend to use the interim standards and the goodwill of all stakeholders to drive change, and that this process will continue immediately following the passage of the legislation.

Committee comment

2.15 The committee thanks the minister for this response. The committee notes the minister's advice that the amendments suggested by the committee to provide certainty while also providing appropriate parliamentary scrutiny of the first standards are not appropriate because, if implemented, they would delay the introduction of 'single touch' environmental approvals by reducing the certainty needed to ensure agreement to the scheme by state and territory governments. The minister further advised that instruments varying or remaking the first standards will be disallowable and that the first review of a standard will be undertaken within 2 years of the commencement of the standard.

2.16 While noting this advice, the committee reiterates its concern that there is no requirement in the bill to vary or remake the first standards and that, as a consequence, the first national environmental standards could continue in existence for years following the completion of the first review without ever being subject to parliamentary oversight.

2.17 The committee also reiterates its consistent scrutiny view that exempting legislation from the usual parliamentary disallowance process, and therefore from democratic oversight by the Commonwealth Parliament, is only justified in exceptional circumstances. As noted in its previous comments on the bill, the committee does not consider that a desire for certainty or a short delay to the commencement of a new scheme is likely to be a sufficient justification for exempting delegated legislation from the parliamentary disallowance process. This is particularly so as there are range of legislative options for reducing uncertainty, such as those suggested by the committee. Consequently, the committee continues to have significant scrutiny concerns in relation to the exemption of the first national environmental standards from disallowance and notes that its scrutiny concerns have not been adequately addressed by the minister.

2.18 Additionally, the committee notes that the Senate Standing Committee for the Scrutiny of Delegated Legislation Committee (Scrutiny of Delegated Legislation Committee) has also consistently raised concerns regarding exempting instruments from disallowance.^[12] On 23 February 2021 the Senate adopted a resolution moved by the Chair and Deputy Chair of the Senate Delegated Legislation Committee which noted that an essential function of the Senate is to scrutinise the law-making power that the Parliament has delegated to the executive.

2.19 The committee also notes that on 16 June 2021 the Senate is scheduled to consider the adoption of recommendations 8 to 10 of the Scrutiny of Delegated Legislation Committee's final report of its inquiry into the exemption of delegated legislation from parliamentary oversight. This includes that the Senate adopt a resolution emphasising the importance of disallowance and sunsetting of delegated legislation to parliamentary scrutiny and noting that exemptions of delegated legislation from disallowance should be limited to cases where exceptional circumstances can be demonstrated. Noting the continued emphasis and commitment of this committee, the Scrutiny of Delegated Legislation Committee, and the Senate as a whole, to ensuring that delegated legislation made by the executive is subject to appropriate parliamentary oversight, the committee reiterates its view that the bill should be amended to provide that the first national environmental standards are subject to disallowance or an alternative form of parliamentary oversight.

2.20 In light of the importance of ensuring parliamentary scrutiny of delegated legislation and the committee's comments above, the committee requests that the bill be amended to provide certainty in relation to the first standards made under proposed section 65C by:

• requiring the positive approval of each House of the Parliament before the first standards come into effect;^[13] or

• providing that the first standards do not come into effect until a disallowance period of five sitting days has expired.^[14]

2.21 If such an amendment is not considered appropriate, the committee requests, at a minimum, that the bill be amended to provide for the automatic repeal of the first standards following the first review of a standard undertaken in accordance with proposed subsection 65G(2).

Incorporation of external materials existing from time to time ^[15]

2.22 In Scrutiny Digest 6 of 2021 the committee requested that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in Parliament as soon as possible.^[16]

Minister's response

2.23 The minister advised:

Following my advice regarding why it is necessary and appropriate for national environmental standards to incorporate documents as in force or existing from time to time, the Committee has requested that an addendum to the explanatory memorandum be tabled in the Parliament.
In my view, an addendum to the explanatory memorandum is not required. I note my response to the Committee's questions in relation to the matter are publicly available in the Scrutiny Digest 6 of 2021.

Committee comment

2.24 The committee thanks the minister for this response. The committee notes the minister's advice that an addendum to the explanatory memorandum is not required given that the minister's previous advice on the appropriateness of incorporating external materials into the law, as existing from time to time, is publicly available in the Scrutiny Digest 6 of 2021.

2.25 While noting this advice, the committee does not consider that the mere fact that the relevant information is publicly available in Scrutiny Digest 6 of 2021 means that it is not necessary to include the information in the explanatory memorandum to the bill. Explanatory memoranda are a key point of access in understanding the law for parliamentarians, officials and members of the public and serve as an important tool in assisting to interpret legislation. The committee considers that information that assists in explaining the intent and effect of a bill should be included in its explanatory memorandum as a matter of course.

2.26 The committee therefore reiterates its request that an addendum to the explanatory memorandum containing the key information provided by the minister in relation to the incorporation of external materials be tabled in the Parliament as soon as practicable.

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[8] Schedule 1, item 6, proposed sections 65C and 65H, Environment Protection and Biodiversity Conservation Act 1999. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[9] Senate Scrutiny of Bills Committee, Scrutiny Digest 5 of 2021, pp. 1–4.

[10] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2021, pp. 41–46.

[11] The minister responded to the committee's comments in a letter dated 10 May 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 8 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.

[12] See Senate Standing Committee on Regulations and Ordinances, Parliamentary scrutiny of delegated legislation, 3 June 2019, pp. 122–24; Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Interim report, 2 December 2020, pp. 6–7; Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Final report, 16 March 2021, pp. 100–101.

[13] See, for example, section 10B of the Health Insurance Act 1973.

[14] See, for example, section 79 of the Public Governance, Performance and Accountability Act 2013.

[15] Schedule 1, item 6, proposed subsection 65C(4), Environment Protection and Biodiversity Conservation Act 1999. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).

[16] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2021, pp. 46–47.