Commonwealth of Australia Explanatory Memoranda

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ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (STANDARDS AND ASSURANCE) BILL 2021

                                 2019-2020-2021




       THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                        HOUSE OF REPRESENTATIVES




 ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION
     AMENDMENT (STANDARDS AND ASSURANCE) BILL 2021




            SUPPLEMENTARY EXPLANATORY MEMORANDUM




      Amendments and New Clauses to be Moved on behalf of the Government




(Circulated by authority of the Minister for the Environment, the Hon Sussan Ley MP)

    AMENDMENTS TO THE ENVIRONMENT PROTECTION AND BIODIVERSITY
    CONSERVATION AMENDMENT (STANDARDS AND ASSURANCE) BILL 2021
GENERAL OUTLINE
The Environment Protection and Biodiversity Conservation Amendment (Standards and
Assurance) Bill 2021 (the Bill) will ensure that approval bilateral agreements with states and
territories are underpinned by National Environmental Standards, supported by strong
assurance and oversight mechanisms. It does this by:

    establishing a framework for the making, varying, revoking and application of National
     Environmental Standards; and
    establishing an Environment Assurance Commissioner (the Commissioner) to undertake
     transparent monitoring or auditing (or both) of the operation of bilateral agreements with
     states and territories and Commonwealth processes under the Environment Protection and
     Biodiversity Conservation Act 1999 (the Act) for making and enforcing approval
     decisions.
The purpose of the proposed government amendments (the Amendments) to the Bill is to:

    insert a sunset provision for 'interim' National Environmental Standards
    require the first review of a National Environmental Standard to be completed within
     2 years of its commencement, and for subsequent reviews to be completed before the end
     of 5 years after completion of the previous review; and
    provide all states and self-governing territories with the ability to request and obtain
     advice from the Independent Expert Scientific Committee on Coal Seam Gas and Large
     Coal Mining Development (IESC), consistent with the functions of the IESC.

FINANCIAL IMPACT
The Amendments do not have a financial impact on the Australian Government budget.

REGULATION IMPACT STATEMENT
The Final Report of the Independent Review of the Act identified a need for legally
enforceable standards to underpin the effective operation of the Act. The Final Report
undertook a process and analysis equivalent to a Regulation Impact Statement. The Final
Report can be found at www.epbcactreview.enviornment.gov.au.

STATEMENT OF COMPATABILITY WITH HUMAN RIGHTS
The Amendments are compatible with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.

The full statement of compatibility with human rights is attached to this Supplementary
Explanatory Memorandum.




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NOTES ON AMENDMENTS
Amendment (2) - Sunsetting of National Environmental Standards
When a National Environmental Standard is first made, it will be treated as an 'interim'
standard until it has undergone its first review. Amendment (2) provides for the automatic
repeal (sunsetting) of the first National Environmental Standard made in relation to a
particular matter (a first made Standard).
Unless revoked earlier, new subsection 65C(3A) (inserted into the Standards and Assurance
Bill by amendment (2)) provides for a first made Standard to automatically sunset on the
earlier of the following days:

   (a) the day after the period of 30 months beginning on the day on which that standard
       commences. Under this scenario, a National Environmental Standard which
       commences on 1 January 2022 will sunset at the end of 1 July 2024.

   (b) the day after the end of the period of 6 months beginning on the day after the report of
       the first review of a National Environmental Standard is published on the
       Department's website. Under this scenario, if the report is published on
       30 May 2024, the Standard will sunset at the end of 1 December 2024.

Given the first review of a National Environmental Standard must be completed within
2 years of its commencement (see amendment (3) below), the period of time after which a
first made Standard sunsets provides sufficient time following the completion of a review for
the Standard to be remade. This timeframe would also facilitate the undertaking of
appropriate and reasonably practicable consultation on the proposed new Standard, as
required by section 17 of the Legislation Act 2003.
Any subsequent National Environmental Standard that relates to the same subject matter as a
first made Standard will be subject to the ordinary sunsetting requirements of the
Legislation Act 2003.

Amendments (3) and (4) - Review of National Environmental Standards
Item 6 of Part 1 of Schedule 1 to the Bill inserts new section 65G into the Act requiring
National Environmental Standards to undergo regular reviews. Amendment (3) amends new
subsection 65G(2) to require the first review of a National Environmental Standard to be
completed within 2 years of its commencement. Amendment (4) amends new subsection
65G(3) to require any subsequent reviews to be completed before the end of 5 years after the
previous review was completed.

Amendments (1) and (5) - Independent Expert Scientific Committee on Coal Seam Gas
and Large Coal Mining Development
Following its establishment in 2012, only declared states and territories can request advice
from the IESC. A declared State or Territory is defined in section 528 of the Act as a state or
self-governing territory that is declared by the Minister under section 505E of the Act.


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Subsection 505E(2) restricts the Minister's ability to declare a state or self-governing territory
to only those states or territories that were, at the time of the declaration, a party to the
National Partnership Agreement on Coal Seam Gas and Large Coal Mining Development that
commenced on 14 February 2012. The Agreement expired on 30 June 2014. Only New South
Wales, Queensland, Victoria and South Australia were parties to the Agreement and declared
under subsection 505E(1) of the Act.

Due to the restriction imposed by subsection 505E(2), there is currently no opportunity for
other states and self-governing territories (namely Western Australia, Northern Territory,
Tasmania and the Australian Capital Territory) to become a party to the National Partnership
Agreement, be declared as a declared state or territory under the Act, and subsequently
request advice from the IESC.

Amendment (5) inserts a new Schedule 3 into the Bill. The purpose of the amendments in
Schedule 3 is to provide all states and self-governing territories with the ability to request and
obtain advice from the IESC, in accordance with the functions of the IESC. This ensures all
states and self-governing territories will have access to the best available science in relation
to water resource issues.

Item 5 of Schedule 3 repeals section 505E of the Act. The repeal of section 505E means that
all states and self-governing territories will be able to request advice from the IESC in
relation to the matters which are within the IESC's functions (as prescribed in section 505D).
The repeal of section 505E does not affect the process by which the advice must be requested
by a state or self-governing territory as specified in paragraph 505D(1)(b) or paragraph
505(2)(b).

Items 1, 2, 3, 4 and 6 of Schedule 3 are required as a consequence of Item 5. Item 6 of
Schedule 3 repeals the definition of declared State or Territory in section 528 of the Act, and
Items 1, 2, 3 and 4 of Schedule 3 amend section 505D to replace references to that term with
references to the "State or self-governing Territory".

These amendments complement the amendments to the Act in Part 1 of Schedule 3 to the
Streamlining Environmental Approvals Bill. Those amendments require an approval bilateral
agreement that applies for the purposes of sections 24D and 24E of the Act (commonly
referred to as the 'water trigger'), to include an undertaking that the appropriate state or
territory minister will obtain and take into account the advice of the IESC when deciding
whether to approve an action likely to have a significant impact on a water resource.

Amendment (1) amends item 4 of the table at clause 2 (Commencement) of the Bill to
provide that the provisions of new Schedule 3 will commence on the day after the day the
Environment Protection and Biodiversity Conservation Amendment (Standards and
Assurance) Act 2021 receives the Royal Assent.




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           STATEMENT OF COMPATABILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

       Amendments to the Environment Protection and Biodiversity Conservation
                 Amendment (Standards and Assurance) Bill 2021
The proposed Government amendments (the Amendments) are compatible with the human
rights and freedoms recognised or declared in the international instruments listed in section 3
of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Amendments
The Amendments:

   insert a sunset provision for 'interim' National Environmental Standards
   require the first review of a National Environmental Standard to be completed within
    2 years of its commencement, and for subsequent reviews to be completed before the end
    of 5 years after completion of the previous review; and
   provide all states and self-governing territories with the ability to request and obtain
    advice from the Independent Expert Scientific Committee on Coal Seam Gas and Large
    Coal Mining Development (IESC), consistent with the functions of the IESC.

Human rights implications
The Amendments do not engage any of the applicable rights or freedoms.

National Environmental Standards will set the requirements for decision-making to deliver
outcomes for the environment and clearly define the fundamental processes that ensure sound
and effective decision-making.

The implementation of National Environmental Standards may promote the right to health
under Article 12(1) of the International Covenant on Economic, Social and Cultural Rights.
Environmental assessment and approval systems underpinned by National Environmental
Standards will improve the outcomes for the protection of Australia's environment and
heritage and biodiversity conservation, and will ensure development in an ecologically
sustainable manner over the long term. This will protect the right to a healthy natural
environment.

Conclusion
The Amendments are compatible with human rights and freedoms recognised or declared in
the international instrument listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011, as the Amendments do not engage any human rights issues.


    (Circulated by authority of the Minister for the Environment, the Hon Sussan Ley MP)




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