Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 [2021] AUSStaCSBSD 55 (17 March 2021)

• Chapter 1
• Comment bills
• Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021
• Significant matters in delegated legislation
• Exemption from disallowance1
• National environmental standards
• Requirements for decisions or things under the Act
• Incorporation of external materials existing from time to time 5
• Tabling of reports7
• Privacy
• Significant matters in delegated legislation8

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Chapter 1

Comment bills

1.1 The committee comments on the following bills and, in some instances, seeks a response or further information from the relevant minister.

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

Significant matters in delegated legislation
Exemption from disallowance^[1]

National environmental standards

1.2 Item 6 of Schedule 1 to the bill seeks to insert proposed Chapter 3A into the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), relating to national environmental standards. Proposed subsection 65C(1) would give the minister power to make national environmental standards for the purposes of the EBPC Act by legislative instrument. The explanatory memorandum explains that national environmental standards:

will set the requirements for decision-making to deliver outcomes for the environment and heritage, and clearly define the fundamental processes that ensure sound and effective decision-making. They will be specific, and provide clear rules, giving upfront clarity and certainty for decision-makers and proponents... [the standards will] underpin accredited environmental assessment and approval processes under bilateral agreements with states and territories, as well as certain decisions or things under the Act.^[2]

1.3 Proposed subsection 65C(3) provides that disallowance does not apply in relation to each of the first standards made under section 65C in relation to a particular matter.

1.4 The committee's view is that significant matters, such as the matters that will be dealt with in national environmental standards, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum contains no justification regarding why it is necessary to allow such significant matters to be set out in delegated legislation.

1.5 The committee notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill. It is unclear to the committee why at least high-level guidance in relation to these matters cannot be provided on the face of the bill. The committee considers that providing such guidance in primary legislation is particularly important in light of the proposal that the first standards made in relation to a particular matter are to be exempted from parliamentary disallowance, which would remove the primary means by which the Parliament could exercise control over this delegated legislation.

1.6 The committee further expects that any exemption of delegated legislation from the usual disallowance process should be fully justified in the explanatory memorandum. With respect to exempting the first standards from disallowance, the explanatory memorandum states:

National Environmental Standards in force under new Part 5A will be integral to facilitating single-touch approvals under accredited state and territory environmental assessment and approval processes. The disallowance of the first Standard made in relation to a particular matter would frustrate this process, as it would mean no National Environmental Standards would exist for a particular matter and bilateral agreements would not be underpinned by the National Environmental Standards. As the Minister must be satisfied that the processes accredited for a bilateral agreement are not inconsistent with one or more National Environmental Standards that are in force under new Part 5A (see Items 1 and 2), they are an essential pre-requisite for the entry into, and the ongoing operation of, bilateral agreements with the states and territories. As such, an exemption from the disallowance provisions of the Legislation Act for the first Standard made in relation to a particular matter is required to ensure the effective operation of bilateral agreements. In addition, as a state or territory process proposed for accreditation for the purposes of a bilateral agreement will be benchmarked against the National Environmental Standards in force under new Part 5A, the exemption from disallowance is necessary to provide certainty to the states and territories, and assurance to the public generally, that those processes meet the necessary standards to make environmental assessment and approval decisions in relation to Commonwealth protected matters.^[3]

1.7 While noting the above explanation, the committee also notes that, under section 42 of the Legislation Act 2003, a legislative instrument is only subject to disallowance for a period of 15 sitting days of a House of Parliament after it is tabled in that House. Further, the instances of the disallowance procedure resulting in disallowance by the Parliament are very low,^[4] and there are alternative mechanisms available to makers of delegated legislation to overcome any remaining uncertainty, such as having delegated legislation come into effect after the disallowance period has passed. In this regard, the committee notes that proposed subsection 65C(2) already establishes a delayed commencement for a standard of at least 1 month, and not more than 6 months, after the day on which the standard is made.

1.8 In light of the above, the committee requests the minister's detailed advice as to:

• why it is considered necessary and appropriate to establish national environmental standards by legislative instrument;

• why it is considered necessary and appropriate to exempt the first standards made under section 65C from disallowance, noting that instances of the disallowance procedure resulting in disallowance by the Parliament are very low, and that certainty may also be achieved by having delegated legislation come into effect after the disallowance period has expired; and

• whether the bill can be amended to include at least high-level guidance regarding the content of national environmental standards on the face of the primary legislation, particularly in light of the proposal to exempt first standards made under section 65C from disallowance, which would remove the primary means by which the Parliament could exercise control over this delegated legislation.

Requirements for decisions or things under the Act

1.9 Proposed subsections 65H(1) and (4) provide that the minister may, by legislative instrument, determine a decision or thing under the EPBC Act in relation to which the person making the decision or doing the thing must be satisfied that the decision or thing is not inconsistent with a national environmental standard. Subsection 65H(8) allows the minister to determine exceptions to this requirement by legislative instrument if the minister is satisfied that the decision or thing is in the public interest. Section 65E further provides that a national environmental standard may specify circumstances in which the standard (or a variation of the standard) does not apply in relation to a decision or thing covered by subsection 65H(1).

1.10 The committee's view is that significant matters, such as the range of matters that must be consistent with a national environmental standard or are exempt from requirements to be consistent with a national environmental standard, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum contains no justification regarding why it is necessary to allow such significant matters to be set out in delegated legislation.

1.11 The committee notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

1.12 The committee notes that these provisions appear to provide the minister with a broad power to determine the scope of matters that must be consistent with national environmental standards. It is unclear to the committee why at least high-level guidance in relation to these matters cannot be provided on the face of the bill.

1.13 In light of the above, the committee requests the minister's detailed advice as to:

• why it is considered necessary and appropriate to leave the determination of decisions or things that must be consistent with a national environmental standard, or are exempt from requirements to be consistent with a national environmental standard, to delegated legislation; and

• whether the bill can be amended to include at least high-level guidance regarding these matters on the face of the primary legislation.

Incorporation of external materials existing from time to time ^[5]

1.14 Proposed subsection 65C(4) provides that a national environmental standard made under section 65C may make provision in relation to a matter by applying, adopting or incorporating any matter contained in any other instrument or writing as in force or existing from time to time.

1.15 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).

1.16 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.

1.17 The explanatory memorandum explains:

New subsection 65C(4) creates a contrary intention for the purposes of subsection 14(2) of the Legislation Act. New subsection 65C(4) will enable a National Environmental Standard to apply, adopt or incorporate an instrument or other writing as it exists at a particular time, or as in force or existing from time to time, even if the instrument or other writing does not yet exist when the Standard is made. For example, a National Environmental Standard may make reference to Australia’s obligations under international conventions, or may refer to Commonwealth instruments, such as conservation advices. It is necessary to allow instruments or other writings to be applied, adopted or incorporated into a National Environmental Standard either as in force or existing from time to time to ensure the environmental outcomes of a Standard are able to be met, and will ensure the Standard remains contemporary as documents are updated or created over time. It is the intention that any instruments or other writings applied, adopted or incorporated into a National Environmental Standard will be freely and publicly available. For example, section 266B of the Act requires the Minister to publish conservation advices on the internet within 10 days of approval.^[6]

1.18 While noting this advice, the committee notes that the matters contained in national environmental standards will set out significant matters in relation to decision-making about environment and heritage matters, such that the committee is concerned that the incorporation of external documents in force 'from time to time' may operate to change the requirements set out in these instruments without any involvement from Parliament.

1.19 Noting the above comments, the committee requests the minister's further advice as to why it is considered necessary and appropriate to incorporate documents as in force or existing from time to time, noting that such an approach may mean that future changes to an incorporated document could operate to change important aspects of the national environment standards without any involvement from Parliament.

Tabling of reports^[7]

1.20 Proposed section 65G establishes a requirement for national environmental standards to undergo regular reviews. The persons undertaking a review of a standard must give the minister a written report of the review which the minister must cause to be published on the department's website as soon as practicable after the report is given to the minister (proposed subsections 65G(4) and (5)). However, there is no requirement that such reports be tabled in Parliament.

1.21 The committee notes that not providing for the review report to be tabled in Parliament reduces the scope for parliamentary scrutiny. The process of tabling documents in Parliament alerts parliamentarians to their existence and provides opportunities for debate that are not available where documents are not made public or are only published online. As such, the committee expects there to be appropriate justification for not including a requirement for review reports to be tabled in Parliament.

1.22 Noting the impact on parliamentary scrutiny of not providing for review reports to be tabled in Parliament, the committee requests that proposed section 65G of the bill be amended to provide that the report of a review must be tabled in each House of the Parliament.

Privacy
Significant matters in delegated legislation^[8]

1.23 Schedule 2 to the bill seeks to insert proposed Part 18A into the EPBC Act which would establish an Environment Assurance Commissioner. Proposed section 501U would allow the Commissioner to disclose information or provide a document the Commissioner obtains in the course of performing the Commissioner’s functions to a range of persons and bodies. Paragraph 501U(1)(f) would allow the regulations to specify additional persons or bodies to whom information can be disclosed or documents can be provided, for purposes prescribed by the regulations. Subsection 501U(2) provides that the information that is disclosed may be personal information and documents provided may contain personal information.

1.24 The committee's view is that significant matters, such as the persons and bodies to whom personal information may be disclosed, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum contains no justification regarding why it is necessary to allow such significant matters to be set out in delegated legislation.

1.25 The committee notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill. It is unclear to the committee why at least high-level guidance in relation to these matters cannot be provided on the face of the bill.

1.26 In light of the above, the committee requests the minister's detailed advice as to:

• why it is considered necessary and appropriate to leave additional persons and bodies to whom personal information may be disclosed or provided, and purposes for which the information may be disclosed or provided, to delegated legislation; and

• whether the bill can be amended to include at least high-level guidance regarding these matters on the face of the primary legislation.

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[1] 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).

[2] Explanatory memorandum, p. 5.

[3] Explanatory memorandum, pp. 6-7.

[4] See Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Interim report, 2 December 2020, p. 62.

[5] 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).

[6] Explanatory memorandum, p. 7.

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

[8] Schedule 2, item 1, proposed section 501U, Environment Protection and Biodiversity Conservation Act 1999. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i) and (iv).