23 June, 2021
I move amendments (1) to (8) as circulated in my name together.
(1) Schedule 1, item 6, page 5 (line 6), omit "may", substitute "must".
(2) Schedule 1, item 6, page 5 (line 13), omit "may", substitute "must".
(3) Schedule 1, item 6, page 5 (after line 16), after subsection 65C(1), insert:
(1A) Without limiting subsection (1), the standards made under that subsection must include national standards for each of the following:
(a) matters of national environmental significance;
(b) transparent processes and robust decisions, including:
(i) judicial review; and
(ii) community consultation; and
(iii) adequate assessment of impacts on matters of national environmental significance, including climate impacts; and
(iv) emissions profile disclosure; and
(v) regional planning;
(c) Indigenous engagement and involvement in environmental decision making;
(d) compliance and enforcement;
(e) data and information;
(f) environmental monitoring and evaluation of outcomes;
(g) environmental restoration, including offsets;
(h) wildlife permits and trade.
(1B) The Minister must take all reasonable steps to ensure that national environmental standards are in force, and comply with subsection (1A), at all times.
(4) Schedule 1, item 6, page 8 (lines 12 and 13), omit ", being a decision or thing that is determined in an instrument under subsection (4),".
(5) Schedule 1, item 6, page 8 (line 27) to page 9 (line 7), omit subsections 65H(4) to (6).
(6) Schedule 1, item 6, page 8 (lines 15 to 26), omit subsections 65H(2) and (3), substitute:
(2) In considering whether the decision or thing is not inconsistent with a national environmental standard, the person must:
(a) apply the standard directly to the particular decision or thing; and
(b) be able to demonstrate that the person has applied the standard in that way.
(7) Schedule 1, item 6, page 9 (lines 8 to 22), omit subsections 65H(7) to (9), substitute:
Exception — national interest
(7) The Minister may, by legislative instrument, determine that subsection (1) does not apply to the making of a decision, or the doing of a thing, if he or she is satisfied that exempting the decision or thing from subsection (1) is necessary in the interests of:
(a) Australia's defence or national security; or
(b) preventing or dealing with (including mitigating the effects of) a national emergency.
(8) Schedule 1, item 8, page 10 (line 21), omit "and subsection 65H(5)".
Debate interrupted; adjournment proposed and negatived.
Ms STEGGALL: These amendments will ensure that measures to safeguard the environment are in place in relation to the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021.
Items (1), (2) and (3) relate to the National Environmental Standards. Items (1) and (2) place a positive duty on the minister to make National Environmental Standards. This will ensure that the national standards are always in place. Item (3) ensures that national standards are always in place for several important areas. These were the areas highlighted by the Samuel review as being essential. The review recommended that the full suite of National Environmental Standards should be immediately developed and implemented to provide clear rules and improve decision-making and that all the standards are necessary to improve decision-making by the Commonwealth and to provide confidence in agreements with accredited parties. I should remind all members of the House that protection of our environment is an absolutely essential duty that we have in this place. The Samuel review, which was conducted extensively with huge involvement and engagement of the community, made some very serious recommendations about how the legislation is currently failing to protect our environment, and these changes are needed.
Items (4), (5) and (8) will remove the determination-making provisions of section 65H, consistent with the Law Council of Australia's submission to the Senate inquiry into the bill. The Law Council has warned that the determination in question gives the minister discretion to exclude a large number of decisions or things under the EPBC Act from the requirement to not be inconsistent with the standards. Essentially, there is uncertainty regarding the potential for certain processes and decisions to be excluded from the application of standards under this power. The Law Council went on to recommend the deletion of some of the wording of 65H(1) as well as 65H(4) in its entirety. These items enact those recommendations, and I urge the government and the minister to take on board these amendments because they were submitted by the Law Council to ensure that this is actually good law to protect our environment.
Item (6) is consistent with the recommendations of the Law Council of Australia to rework 65H, and item (5) substitutes a provision which allowed for other factors to be considered when judging whether a national environmental standard has been complied with. The former list of factors was broad and afforded too much discretion to decision-makers. The effect would have been to significantly weaken enforcement of, and compliance with, the standards. This item will ensure the standards are applied directly and demonstrably.
Regarding item (7), the amendment bill provided a public interest exception for the application of the standards. This exception was way too broad and does not provide discrete circumstances where it's permissible. In effect, it will weaken compliance with the standards if it remains as currently proposed. Item (7) substitutes a new national interest exception and allows exceptions to the application of the National Environmental Standards only in circumstances where Australia's defence and national security is at risk or when preventing, or dealing with, a national emergency.
These amendments will ensure that the environment is being protected. They will ensure that the proper governance arrangements are in place, including the ESD Committee. These amendments will tighten provisions to ensure that the National Environmental Standards are in place and applied directly, with exceptions made only for national security or emergency situations.
I should say that, notwithstanding these amendments, schedule 2, which relates to the Commonwealth Environment Assurance Commissioner, also has a lot of problems with it. In fact, it really should be reworked. It is unworkable to try to amend. The Commonwealth Environmental Protection Agency should replace it, as has been proposed by the member for Clark. It would assume the functions and better reflect Graeme Samuel's recommendations.
I should say that many in this place go back to their electorate and their community proclaiming to want to protect the environment and to care about the outcome of the Samuel's review, but little is done in this place to actually give effect to those words. (Time expired)
The SPEAKER: The question is that the amendments be disagreed to.