Submission guide: EPBC Standards and Assurance Bill 2021

The Standards and Assurance Bill has been brought in to try to win over senate support for the government’s stalled Streamlining Environmental Approvals Bill (which will enable it to hand over decision making powers to the states, territories and local governments).

The Standards and Assurance Bill bill aims to do two core things:

1. Establish a national framework for environmental standards. (Hint: environmental standards are simply a technical way of talking about what environmental outcomes decision making should deliver.)
2. Establish the position of a National Environmental Assurance Commissioner, to audit the implementation of standards by states and territories as well as the Commonwealth.

We believe these measures are important, but the Standards and Assurance Bill is poorly drafted and has too many loopholes to deliver environmental outcomes. Strengthening the legislation is critical if we are to address Australia’s worsening extinction crisis.

The Senate Environment and Communications Legislation Committee is keen to hear your views on the government’s Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021.

You can make a submission via the ACF website or Australian Parliament website.

The Inquiry is open for public submissions until Thursday 25 March 2021. It is scheduled to report its findings on 1 June 2021.

Generally, the best submissions:

• begin with a short introduction about yourself or the organisation you represent
• are relevant and highlight your own perspectives
• are concise and generally no longer than four to five pages
• emphasise the key points so that they are clear
• outline not only what the issues are but how problems can be addressed – as the committee looks to submissions for ideas to make recommendations
• only include documents that directly relate to your key points
• only include information you would be happy to see published on the internet.

As this bill relates to two key issues – National Environmental Standards and a National Environmental Commissioner – it’s important your submission relates to these two issues.

Getting started on a submission can be tricky. Structure is important as it enables you to communicate your key points. A simple structure you may wish to follow is:

1. Introduce yourself
2. Outline why this issue matters to you
3. Provide suggestions on how to make this law better (we have some suggestions below)

1. Introduce yourself

Start your submission by briefly introducing who you are, why you care about our environment, and why you have taken the time to write your submission.

Emphasise your personal experience or unique perspective. Maybe you have advocated to save a place – like the Franklin River or your local nature corridor/green belt – and encountered unchecked, excessive development.

Maybe you have spoken out to save an Australian species or a local wildlife population – like the Black-Throated Finch or the Leadbeater’s Possum – and did not have the resources or political will to protect it.

Maybe you’re a member of a local revegetation group, you build nesting boxes and insect hotels, or are passionate about echidnas.

All reasons to care about our environment are good reasons.

Don’t go into too much detail here – you’ll need to draw on your personal experiences next when talking about the issues that matter to you.

Remember: keep your submission polite and respectful. The Committee will dismiss submissions that are rude or target individual public servants or Members of Parliament.

2. Outline why this issue matters to you

It’s important that you add your own views on these issues. Whilst legislation can be technical, it is dealing with relatively simple concepts.

It may seem daunting but don’t be discouraged. These processes are important for showing politicians that everyday people care.

At the highest level, try answer the following questions:

• What species or places are important to you? Why should they be protected?
• What kind of environmental outcomes do you want to see in the future – for the places, people and wildlife that you care about?
• How can national safeguards (such as national environmental standards) help in the conservation of these?
• How should the Australian Government ensure that our environmental laws (and standards) are enforced?

Hint: Environmental standards are simply a technical way of talking about what environmental outcomes decision making should deliver. For example, it may mean protecting certain habitats for threatened species, or rules that make sure our World Heritage Areas, like the Great Barrier Reef or the Blue Mountains are safeguarded for future generations.

Similarly, what type of oversight would you like to see if state, territory or local governments are given the primary responsibility for protecting nationally threatened species or World Heritage Areas? For most people, they would be pretty concerned about the federal government handing over their decision making responsibilities, and if they did, they would want to make sure that the states and territories were policed closely to ensure they did it properly.

3. Provide suggestions on how to make the law better

Inquiries always welcome suggestions on how to improve things. Here are some suggestions on how the senate could work to strengthen the legislation:

1. The government should respond to the full suite of 38 recommendations presented to it by the Independent Review of the EPBC Act (not cherry-pick reforms).
2. The bill should be amended to include strong National Environmental Standards that genuinely protect and restore Australia’s reefs, rivers, forests and wildlife.
3. The government’s proposed “interim environmental standards”, which are weak and ineffective, should be abandoned.
4. Loopholes that let ministers or industries get out of having to meet National Environmental Standards should be removed.
5. The proposed National Environmental Assurance Commissioner should be truly independent and sit within a well-resourced Commission without any constraints on their work.
6. The government should establish an Independent Environment Protection Authority.

Below are some suggested key points for your submission. It gets a bit technical, so don’t worry if you can’t cover all of them. You don’t need to say them all, or say them as they are written (actually, it's better if you phrase them in your own words).

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.

• EPBC (Standards and Assurance) Bill 2021 Senate Inquiry homepage
• Copy of the legislation and Explanatory Memorandum
• ACF blog posts on the Standards and Assurance Bill and the Samuel Review
• Final report on the independent review into the EPBC Act by Professor Samuel and his recommended environmental standards

Make a submission