June 2021

Environment Protection and Biodiversity Conservation Amendment

The EPBC Act, the Environment Protection and Biodiversity Conservation Act 1999, is undoubtedly one of the most important pieces of conservation legislation we have here in Australia. Members here would be familiar with some of the objectives of the act: to provide for the protection of the environment, especially on matters of national environmental significance; to conserve Australian biodiversity; to provide a streamlined national environmental assessment and approvals process; to enhance the protection and management of important natural and cultural places; to control the international movements of plants and animals, including wildlife and wildlife specimens and products made or derived from wildlife under conventions such as CITES; to promote ecologically sustainable development through the conservation and ecologically sustainable use of resources; to recognise the role of Indigenous people in the conservation and sustainable use of Australia's biodiversity; and to promote the use of Indigenous peoples' knowledge of biodiversity, with the involvement of and in cooperation with the owners of that knowledge. There are a number of matters of national significance that come under the EPBC Act: World Heritage properties, National Heritage places, wetlands of international importance, Commonwealth marine areas, the Great Barrier Reef Marine Park—the subject of some news coverage in recent days—and listed threatened species and ecological communities.

This landmark piece of legislation, which has done a huge amount in its somewhat over two decades of existence to protect and preserve our environment, is now 20 years old. Under the terms of the act itself, under section 522A, a review is required every 10 years to examine the operation of the EPBC Act and the extent to which its objects have been met. A 10-year review was conducted in 2009—by Dr Allan Hawke, from memory—and the legislation that we're discussing and debating today, the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021, is the result, the fruit of the second such review.

This second statutory review commenced on 29 October 2019. It was led by Professor Graeme Samuel, who was appointed as the independent reviewer. He was supported in this by an expert panel, which provided advice to Professor Samuel on a number of specific issues. Professor Samuel, as a result of his first round of consultations, published a discussion paper in November 2019, to which submissions were invited, and, in fact, a huge number of submissions were received. There were over 3,242 unique submissions and a larger number of replica submissions, which indicates the wide range of public interest in this topic. As members would be aware, Professor Samuel delivered his interim report in July of last year, and his final report was released on 28 January this year. Before proceeding further in discussion of the substance of this legislation we're debating here today, I do wish to put on my record my appreciation and commendation for Professor Samuel, and for the expert panel who advised him throughout this, on an important piece of work.

Undoubtedly, Australia's environment, with the variety and uniqueness of our natural assets, is one of our great national blessings. We are blessed with some of the most remarkable and amazing species in the world, many of which are unique to Australia. We have some of the most amazing sites of natural beauty in the world—places such as Kakadu National Park, the Great Barrier Reef, the alpine ranges, the Daintree rainforest and the Franklin-Gordon Wild Rivers National Park, to name just a few. We also have one of the largest and most significant marine jurisdictions in the world, which hosts many forms of life about which we still know very little. Our natural environment is central to our conception of ourselves as a people and as a nation, just as it was to our Indigenous Australians during the tens of thousands of years they inhabited the continent before white settlement. And whilst it's central to our own self-conception, it's also a key part of how the world sees Australia: as a continent of phenomenal natural beauty and striking ecological diversity, home to a disproportionate share of the world's marvels.

This is why this review is so important. Professor Samuel, in this review, made a number of quite profound and quite concerning findings, and I think it's worth quoting from elements of the final review he has handed down. Professor Samuel's overall finding was:

Australia's natural environment and iconic places are in an overall state of decline and are under increasing threat. They are not sufficiently resilient to withstand current, emerging or future threats, including climate change.

Professor Samuel also found:

The EPBC Act is out dated and requires fundamental reform. It does not enable the Commonwealth to effectively fulfil its environmental management responsibilities to protect nationally important matters. The Act, and the way it is implemented, results in piecemeal decisions, which rarely work in concert with the environmental management responsibilities of the States and Territories. The Act is a barrier to holistic environmental management which, given the nature of Australia's federation, is essential for success.

And finally:

The EPBC Act requires fundamental reform, and a sensible and staged pathway of change is needed to achieve this.

New National Environmental Standards should be the centrepiece of fundamental reform of national environmental law

The standards and assurance part of the EPBC Act is the subject matter of the bill and the legislation we're discussing today.

Professor Samuel, in his review, recommended that national environmental standards should be made in early 2021 supported by reforms to implement an independent environment assurance commissioner; expert advisory committees; transparent decision-making; access to data and information; strong, independent compliance and enforcement; effective monitoring and evaluation; access to justice; and exploring investment in this duration. Comprehensive enabling reform should be completed within 12 months, according to Professor Samuel's recommendation, and a full overhaul of the EPBC Act should be completed during 2022. These are the recommendations we are dealing with today from the Professor Samuel review.

As part of his review, Professor Samuel recommended that national environmental standards should be the centrepiece and should be the first stage of the reform. Together, leaders at the state and territory level, meeting through the national cabinet, have agreed that the immediate priority of reform is to implement single-touch environmental approvals underpinned by national environmental standards that reflect the current requirements of the EPBC Act. In August last year, the government introduced the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 into the parliament. The purpose of that piece of legislation was to ensure that bilateral agreements and the accreditation of state authorisation processes which give effect to single-touch approvals are legally robust and durable. The bill we are debating today is really the second stage in implementing the first wave, if you like, of Professor Samuel's reforms. This particular bill, the standards and assurance bill, together with the streamlining bill that has already passed the House, represent the initial stage of this reform process.

It has always been the intention of the government that bilateral agreements with the states and territories be underpinned by strong national environmental standards developed by the Commonwealth. The bill delivers on this commitment by establishing a framework to develop legally enforceable national environmental standards. This bill, the standards and assurance bill, will ensure that approved bilateral agreements with states and territories are underpinned by strong national environmental standards, are supported by strong assurance and contain strong oversight mechanisms. What national environmental standards will do is set the requirements for decision-making to deliver outcomes for the environment and heritage and ensure that Commonwealth requirements and obligations for environmental approval and other decisions are upheld regardless of which jurisdiction makes the approval decision.

The Samuel review also identified the need for strong independent oversight of environmental assessment and approval systems, including the accredited state and territory systems, to provide confidence that the outcomes of the environmental standards are being achieved and the requirements of the EPBC Act are being upheld. This bill does both of things. Firstly, it establishes a framework for the making, varying, revoking and application of national environmental standards. These standards will be allowed to be made by the minister. These standards will underpin accredited environmental assessment and approval processes under bilateral agreements agreed with the states and territories. The accreditation of state and territory assessment and approval processes will be contingent on those processes not being inconsistent with the national environmental standards.

These standards will be established as a legislative instrument, which means that they have the necessary flexibility for the standards to respond to new information and changing circumstances but they're subject to the same protections that are inherent in legislative instruments, including consultation requirements. It is anticipated that the national environmental standards will be developed in consultation with science, Indigenous, environmental and business stakeholders as well as, of course, with the states and territories.

These interim standards initially will be required to be reviewed within two years to ensure the right balance is being struck. States and territories that wish to be accredited under the EPBC Act to make approval decisions—this is for the single-touch approval envisaged and sought by the states and territories—will need to demonstrate that the systems that they put in place can support and uphold these national environmental standards. What this means is that bilateral agreements between the federal government and state and territory governments, underpinned by these national environmental standards, will harmonise environmental approval requirements across all jurisdictions. We won't have the situation that we have now where we have different states and territories taking different decisions which lead to different protection outcomes for our environment. It will also remove the considerable duplication that currently exists between state and federal approval processes.

Professor Samuel, in his review, also recommended that a government should retain the ability to exercise discretion in individual cases. The bill provides for this but makes sure that discretion can only be exercised very sparingly. I think that is an important point. Any decisions that the minister makes to deviate from these standards will require that the minister publish a statement setting out the reasons why the minister was satisfied that the decision taken was in the public interest, and the statement must be published on the department's website as soon as practicable after the decision is made.

The bill also ensures that our approval systems, including under the EPBC Act, will be supported by strong oversight and assurance. It does this by establishing the Environment Assurance Commissioner as an independent statutory office holder within the Department of Agriculture, Water and the Environment. This is consistent with the Samuel review recommendation which identified the need for strong and independent oversight of environmental assessment and approval systems, to provide confidence that the national environmental standards are being achieved and that the requirements of the EPBC Act are being upheld.

The Environment Assurance Commissioner will provide strong, rigorous and independent assurance that approval systems are working well and are delivering outcomes for the environment, for business and for the community. The bill goes into some detail to specify the arrangements governing the commissioner's appointment and the exercise of the commissioner's functions and powers, including the preparation of annual work plans and reporting requirements. The establishment of the Environment Assurance Commissioner, together with national environmental standards, will give stakeholders and the community confidence in the single-touch approval system. It should make decision-making faster and easier but provide a higher level of protection for our environment.

I noticed that the member opposite, the member for Hunter—I know we quote him quite often in this place—did have something quite interesting to say on this in an opinion piece published in the Daily Telegraph on 21 June:

Jobs versus environment: it's not a new battle. One or the other it need not be, we can protect our natural environment and create jobs too.

It's a sentiment with which I certainly agree. I think the member for Hunter was arguing for the passage of this legislation in that opinion piece.

This bill, together with the streamlining bill considered and passed by the House earlier, is the first step on an important journey of implementing the Samuel review, of ensuring the EPBC Act remains fit for purpose and of ensuring that robust environmental standards apply across all jurisdictions. The standards and assurance bill, together with the associated streamlining bill, will establish the framework and the architecture to modernise the EPBC Act, to remove unnecessary duplication and red and green tape, to improve efficiency for business in having their projects assessed, to provide greater certainty for the community and to deliver, most importantly, better environmental outcomes.

There are other elements of the Samuel review which will be canvassed and addressed at a later stage; that is my understanding. The government has recently, in June 2021, published a pathway for reforming national environmental law, which lays out four stages that mirror the stages recommended by Professor Samuel. Stage 1 is the national environmental standards in the state and territory agreements to allow for single-touch approvals. But subsequent stages deal with things such as: the respectful inclusion of Indigenous Australians' knowledge and views in decision-making; the full transparency of decision-making; independent auditing of decisions; appropriate legal review and access to justice; and strong and independent compliance and enforcement. As outlined in the government's own pathway for reforming national environmental law, once the bills are passed—the streamlining bill and the national environmental standards bill—we will move on to the second stage of reforms, which will include things such as additional national environmental standards, including for areas such as Indigenous engagement.

In the time remaining to me, I note that the passage of this legislation has widespread support from the states and territories. Indeed, the Western Australian Premier, Mark McGowan, with whom the federal government does not always agree or see eye to eye, was in the media today urging the passage of this legislation. I have a copy of a letter here that was provided to me, which has been sent to the Leader of the Opposition from bodies such as the Chamber of Commerce and Industry of Western Australia, urging that Labor support the passage of this legislation. I urge those opposite to consider this legislation favourably, and I commend to it the House.