The Australian Federal Minister for the Environment and Water has tabled proposed laws before the Australian Parliament to establish new national environmental agencies, enhance their enforcement powers and establish the legal governance structures to collect and disseminate environmental data to inform better government decision-making. If passed, the proposed laws will provide the platform for substantive law reforms expected to see the light of day later in 2024, and which would have significant implications for anyone involved in developing projects or protecting the Australian environment.
One of the Federal government's key first term promises was to reform Commonwealth environmental laws in accordance with its Nature Positive Plan. The Nature Positive Plan set out the government's response to the independent inquiry conducted by Professor Graham Samuel in 2020, which was highly critical of various aspects of Commonwealth environmental laws, notably the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), and made numerous recommendations on how to improve the efficiency and effectiveness of these laws.
The EPBC Act is Australia's principal environmental law. It aims to protect matters of national environmental significance (MNES) and sets out the environmental impact assessment and approval regime for new projects that have the potential to impact MNES.1 The EPBC Act also includes regimes for the listing of threatened species and communities, the granting of permits for certain activities such as cetacean research, impacts to threatened species and trading in wildlife, and the creation and management of protected areas. It is viewed by many as being complex, inefficient and failing to stem the decline in Australian biodiversity and ecology.
While the Nature Positive Plan foreshadowed the passage of new legislation by the end of 2023 following a public consultation process, the legal and political complexity of the reforms meant that only the passage of the Nature Repair Market Act 2023 and revisions to the 'water trigger' in the EPBC Act could achieve this timeline. As a result, earlier this year the Minister for Environment announced the reforms would be delivered in stages – the first stage being the Nature Repair Market Act 2023 and the 'water trigger' reforms, the second stage being the establishment of new statutory environmental authorities to administer and enforce national environmental laws, while the third and most complex stage would deliver the substantive reforms set out in the Nature Positive Plan, including legislation to replace the EPBC Act and give effect to new national environmental standards.
On 29 May 2024, the Minister tabled Bills in the House of Representatives that, if passed, would deliver on the second stage of the reforms. Key aspects of the Bills are summarized below.
New environmental regulators
Overview
The Nature Positive (Environment Protection Australia) Bill (EPA Bill) proposes to establish two new statutory authorities:
- Environment Protection Australia (EPA), whose primary role is to assist the Chief Executive Officer of the EPA (CEO) in performing the CEO's functions. The EPA would be comprised of the CEO, its staff and other public officers of the Commonwealth or a state or territory whose services are made available to the EPA; and
- The CEO, who would be appointed by the Governor-General for a five-year term (and must satisfy certain statutory pre-requisites).
The EPA Bill proposes that the CEO would not be subject to direction by any person in relation to the performance of its functions and powers, unless otherwise specified by legislation. In other words, the true independence of the CEO will depend, in part at least, on whether the CEO is subject to Ministerial direction under the proposed stage 3 law reforms.
Statements of expectations and intent
The EPA Bill proposes that the Minister may issue a statement of expectations to the CEO that sets out the Minister's expectations for the CEO and EPA, although these statements cannot include directions. The Explanatory Memoranda states that the purpose of a statement of expectations is to allow the Minister to inform the CEO of government policy that is relevant to the CEO's functions and powers. In preparing a statement, the Minister must have regard to matters prescribed by rules prepared under the proposed legislation, and once complete must be published on the Department's website.
The CEO must in turn prepare and give to the Minister a statement of intent that responds to the Minister's statement of expectations, which likewise must be prepared in accordance with any rules and published on the EPA website. The Explanatory Memoranda states that the intention of this step is to give the CEO a 'transparent opportunity' to indicate how EPA would consider and apply the Minister's statement of expectations.
Other functions
The CEO is proposed to have functions to establish and maintain public registers of registrable decisions and other prescribed matters, request information and disclose that information to Commonwealth and state or territory agencies or for law enforcement purposes and establish an advisory group to provide advice or assistance to the CEO on the performance of the CEO's functions and the exercise of its powers.
The EPA Bill proposes that the CEO must give an annual report to the Minister and be published on the EPA website, and the Minister can require independent reviews of the administration of the EPA.
The CEO's functions and powers
General powers under Commonwealth environmental laws
In addition to the functions and powers conferred by the EPA Bill, the Nature Positive (Environment Law Amendments and Transitional Provisions) Bill (Amendment Bill) proposes to confer a range of powers and functions under existing environmental laws from current decision-makers – typically either the Minister for Environment or the Secretary to the Department of Climate Change, Energy, the Environment and Water (Department) – to the CEO.
The existing environmental legislation in which the CEO is proposed to be given powers include the Environment Protection (Sea Dumping) Act 1981, Hazardous Waste (Regulation of Exports and Imports) Act 1989, Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995, Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Act 1995, Product Emissions Standards Act 2017, Recycling and Waste Reduction Act 2020, Underwater Cultural Heritage Act 2018.
Powers under the EPBC Act
Under the EPBC Act, the Amendment Bill proposes that the CEO would assume various enforcement and evidentiary powers, as well as the power to issue permits under Chapter 5 of the EPBC Act (and in exercising these powers, must take account of the precautionary principles). The CEO is also proposed to become the authority that should be notified of unauthorised interactions with listed species and communities, cetaceans and listed migratory and marine species, to direct and receive environmental audit reports, as well as numerous administrative functions that are presently held by the Secretary to DCCEEW.
What will be of interest to most people, is that the administration and decision-making powers under the referral, environmental impact assessment and approval regime for 'controlled actions' and strategic assessments will remain with the Minister for Environment and Water.
However, the Amendment Bill proposes that the Minister would have the power to delegate all or any of the Minister's functions or powers under the EPBC Act to the CEO or a member of the EPA staff, and the Secretary may likewise delegate its powers. While delegations are revocable, it raises the prospect that the CEO may potentially have at least some, and potentially extensive, delegated decision-making powers to administer the regime for determining controlled actions, environmental impact assessment, approvals, perhaps in a manner similar to existing delegation arrangements to executives and officers of Department.
It may also be assumed that this similar arrangement may be reflected in the stage 3 law reforms that would replace the EPBC Act.
Environmental and compliance audits
Under the EPBC Act, the Minister can direct the holder of an approval or a permit to carry out an environmental audit if it is believed on reasonable grounds that the holder of an approval has contravened or is likely to have contravened the approval or permit, or the impacts are significantly greater than was indicated when the Minister granted the approval or permit.
The Amendment Bill proposes to expand the circumstances in which environmental audits can be issued to include breaches of an environmental protection order or where the person has an exemption from the need for an approval or permit. The audits must be conducted by someone who has been registered by the CEO as an environmental auditor or, if such an auditor is not reasonably available to conduct the audit, someone who has been approved by the Minister for such appointments before the appointment has been made.
The Minister may also require compliance audits to be carried out in respect of environmental authorities, exemptions, environmental orders or activities carried out under a permission granted under the Great Barrier Reef Marine Park Act 1975. Such requirements are issued to the holder of the environmental authority or permission or the person to whom an exemption applies and must be conducted by a registered auditor or an authorised officer. Unlike environmental audits, the Minister is not required to have any belief about the possibility of non-compliance with a permission or legislation or that environmental harm or damage is occurring or possible. This may indicate the Commonwealth intends to use the power to direct compliance audits to enforce compliance with approvals, permissions or exemptions granted under the EPBC Act.
Environmental information
The third bill tabled by the Minister is the Nature Positive (Environment Information Australia) Bill (EIA Bill), which proposes to establish the Head of Environment Information Australia (EIA Head). The proposal to establish this new role is at least a partial response to the Samuels inquiry finding that 'information systems supporting the EPBC Act are inefficient, disorganized and incomplete' and that there is a need for a 'Custodian for the national environmental information supply chain.'
The EIA Head would have a number of functions, perhaps the most important being to provide 'high quality information and data' to the Minister and the CEO in respect of the environment and their statutory functions and powers, as well as to the public.
The EIA Head is also proposed to be responsible for establishing a monitoring and reporting framework to verify whether 'nature positive' outcomes are being achieved, and to prepare and publish State of the Environment Reports every two years.
What next?
While establishing an independent environmental authority to administer and enforce Commonwealth environmental laws would be a significant step in its own right, the scale of the proposed reforms perhaps does not quite match the earlier expectations that the environmental assessment and approval of projects would be undertaken by an independent statutory authority. People will have different views on this, but ultimately the success of the new arrangements will be whether the assessment and approval of projects is robust and efficient, and the decline in Australian biodiversity and ecology is halted and reversed.
The 'rubber will hit the road' when bills for the stage 3 law reforms are published for comment, potentially in late 2024. While the broad contours of these reforms have been canvassed during the public consultation carried out by the Commonwealth since late 2023, we will only get a true appreciation of the implications of these reforms and the scale of the government's ambition once the proposed legislation is revealed.
1 The MNES are world heritage areas, RAMSAR wetlands, national heritage places, listed threatened ecological species and communities and listed migratory species, Commonwealth marine areas, Great Barrier Reef Marine Park, the environmental impacts of nuclear actions, and water resources that relate to coal seam gas development and large coal mining development. The EPBC Act also protects the environment on Commonwealth land, in respect of actions taken by an Australian government agency anywhere in the world, and that impact Commonwealth heritage places overseas.
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This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.
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