Key technical points on the Standards and Assurance Bill

The Standards and Assurance Bill is made up of two schedules:

1. Schedule 1 creates a legal framework to make National Environmental Standards; and
2. Schedule 2 establishes the position of the National Environmental Assurance Commissioner.

Schedule 1 – National Environmental Standards

While National Environmental Standards are the centrepiece of Professor Samuel’s report and are supported by ACF, the Morrison Government has cherry-picked elements of the Samuel report and entirely discarded the detailed set of National Environmental Standards developed by the Independent review of the EPBC Act. A framework for making standards will be ineffective if there are no clear requirements around the quality, consistency and comprehensive application of standards.

Drawbacks of the legislation

• The government has ignored the recommended standards by Professor Samuel and constructed their own “interim standards”. These have not been publicly released nor consulted on.
• The government’s “interim standards” simply replicate existing problems in the EPBC Act. They do not describe environmental outcomes, merely prescribe process.
• The legislation will lock in these weak “interim” standards and provide no certainty that they will be strengthened.
• The weak interim standards prepared by the government will not be disallowable by the Parliament. In effect the legislation will lock these in and the review mechanism built into the legislation is weak.
• The legislation proposes a two year review that does not compel the minister or parliament to update the standards based on its findings.
• It provides an exemption to enable the Commonwealth Environment Minister to override National Environmental Standards based on the “public interest”. But “public interest” isn’t defined and we have seen abuse of similar provisions under the EPBC Act in the past.
• It provides significant discretion for decision makers in relation to considering whether standards are being met or not. For example, a decision maker will be able to factor in existing government programs or plans when making decisions on a mine or development meets the standards. A worst case example would be where a government authorises a mine that does not comply with a standard for protecting threatened species, but justifies this on the basis that the government has a tax-payer funded conservation program for that species elsewhere.

What should be done to improve Schedule 1 of the legislation?

• The government must respond to the full suite of recommendations put forward in the Samuel Review.
• The National Environmental Standards prepared in professor Samuel’s final report should form the basis of standards that are proposed and established. These must include standards for:
  • matters of national environmental significance
  • Indigenous participation and engagement
  • compliance and enforcement
  • data and information
• Legislation should mandate the development of national environmental standards must be made for the following matters:
  • community participation
  • biodiversity offsets
  • regional planning
  • restoration and recovery
• Legislation must build in a provision for non-regression, by which environmental standards are unable to be weakened or removed except in circumstances of significant new scientific or cultural information.
• Reforms should follow an appropriate accreditation pathway, whereby National Environmental Standards are first established prior to any agreements entered into with the states and territories.
• Clarify the list of considerations relevant to a determination of consistency with standards (ie. to focus on the standards being demonstrably and directly applied, rather than broadly applied in conjunction with other environmental measures).
• Define the public interest test in law and require the Minister to publicly notify of their intention to use such legislation and provide a public statement of reasons at the same time a decision is made.
• Require reviews of standards to be conducted by independent scientific experts, and require the Minister to respond publicly to reviews.

Schedule 2 - National Environmental Assurance Commissioner

The proposed Environmental Assurance Commissioner (EAC) would be appointed by the Governor General and have specific responsibilities for overseeing the implementation of bilateral agreement and Commonwealth approval responsibilities consistent with national standards. While independently appointed, the EAC would sit within the federal Department of the Agriculture, Water and the Environment.

Key drawbacks of the model proposed by the government include:

• The EAC would have no dedicated staff, and would have to request resources from the Secretary of the Department, meaning it could be subject to constraints in doing its work based on political considerations.
• The EAC would be unable to audit individual approvals and can only audit systems and processes.
• The annual plan requirements potentially prevent the EAC doing an unscheduled audit in response to non-compliance – potentially limiting its ability to be responsive and targeted.
• Compliance and enforcement is primarily to be undertaken by the states and territories under this model, however there is no compliance and enforcement standard in the governments “interim standards”. This ultimately limits the ability of the EAC to ensure states and territories have effective regulatory approaches to protecting matters of national environmental significance.

What should be done to improve Schedule 2 of the legislation?

• The EAC should be constituted outside of the federal Department of Agriculture, Water and the Environment as a statutory Commission, with its own staff and resources.
• The EAC should be able to audit both systems and projects as necessary, without limitations.
• The Minister should be compelled to to table responses in parliament to audit reports of the Commission within a stipulated time.
• A compliance and enforcement standard must be in force before any accreditation of state and territory processes takes place.
• The government should establish an Independent Office of Compliance and Enforcement.