House debates

Wednesday, 3 July 2024


Nature Positive (Environment Protection Australia) Bill 2024, Nature Positive (Environment Information Australia) Bill 2024, Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024; Consideration in Detail

1:21 pm

Photo of Kylea TinkKylea Tink (North Sydney, Independent) Share this | | Hansard source

by leave—I move amendments 1 through to 16 on the sheet revised 26 June 2024 as circulated in my name together:

(1) Clause 3, page 2 (lines 13 to 17), omit the clause, substitute:

3 Objects

The objects of this Act are as follows:

(a) to establish Environment Protection Australia to support the delivery of accountable, efficient, outcomes-focused and transparent environmental regulatory decision-making;

(b) to promote public trust in environmental regulatory decision-making through:

(i) publication of comprehensive information within reasonable timeframes in relation to the decisions of the CEO of Environment Protection Australia; and

(ii) requiring transparency for those decisions; and

(iii) ensuring opportunities for the public to inform those decisions.

(2) Clause 5, page 3 (after line 18), after the definition of CEO, insert:

Charter of Consultation means an instrument made under subsection 23B(1).

(3) Clause 13, page 9 (line 4), after "by", insert "or under".

(4) Clause 13, page 9 (after line 8), at the end of subclause (2), add:

Note: Subparagraph (c)(ii) ensures that the CEO's functions include a function delegated to the CEO under another law of the Commonwealth.

(5) Clause 15, page 10 (lines 3 to 10), omit the clause, substitute:

15 Simplified outline of this Part

The Minister may give the CEO a statement of the Minister's expectations for the CEO and EPA. The CEO must respond to any such statement of expectations with a statement of intent.

The CEO must establish and maintain on EPA's website registers containing information in relation to certain decisions of the CEO (called registrable decisions), certain approvals and other actions by the CEO, and any other matters prescribed by the rules that relate to a law mentioned in section 13. These registers are to contain information to inform public participation in environmental decision making.

The CEO must make a Charter of Consultation for the CEO's decision-making when performing the CEO's functions. The CEO must have regard to that Charter, and take certain additional steps, to ensure meaningful public participation in that decision-making.

(6) Clause 18, page 13 (after line 4), after paragraph (1)(a), insert:

(aa) a register of the following:

(i) audits, compliance reports and plans of management relating to approvals under the Environment Protection and Biodiversity Conservation Act 1999;

(ii) documents relating to compliance and enforcement of approvals under that Act;

(iii) any other documents prescribed by the rules that relate to approvals, or post-approval actions, under that Act;

(7) Clause 18, page 13 (after line 6), after subclause (1), insert:

(1A) A registrable decision is to be included on the register of registrable decisions within 28 days after the day the decision is made.

(8) Clauses 19 to 21, page 13 (line 10) to page 14 (line 4), omit the clauses, substitute:

19 Definition of registrable decision

A decision of the CEO is a registrable decision if the decision:

(a) is a decision of the CEO under the Environment Protection and Biodiversity Conservation Act 1999; or

(b) is a decision of the CEO referred to in Schedule 1 to the Nature Positive (Environment Law Amendments and Transitional Provisions) Act 2024; or

(c) for a decision under another Act—is prescribed as a registrable decision by that Act or the rules; or

(d) for a decision under a legislative instrument—is prescribed as a registrable decision by the rules.

20 Register of registrable decisions

The register of registrable decisions must include the following for each registrable decision:

(a) information about the person in relation to whom the decision was made;

(b) information about what that person was seeking from the decision;

(c) information about any environment impact assessment (however described) relating to the decision;

(d) any advice from the advisory group, or from one or more of the advisory group's members, relating to the decision;

(e) any other information of a kind prescribed by the rules.

Note: The CEO is not required to publish certain sensitive information: see section 23.

21 Other registers

The rules may make provision in relation to a register referred to in paragraph 18(1)(aa) or (b), including (without limitation) the information that the CEO must publish on the register.

Note: The CEO is not required to publish certain sensitive information: see section 23.

(9) Clause 23, page 14 (lines 29 and 30), omit ", defence or international relations", substitute "or defence".

(10) Page 14 (after line 30), at the end of Part 3, add:

Division 4 — Transparency and accountability in decision making

23A Community rights

In making decisions when performing the CEO's functions, the CEO must:

(a) comply with the Charter of Consultation; and

(b) for a decision of a kind prescribed by the rules—provide members of the public with a reasonable opportunity to comment directly to the CEO on the decision; and

(c) for a decision of a kind prescribed by the rules:

(i) include in the CEO's statement of reasons for the decision, an explanation of how the CEO considered submissions received in relation to the decision; and

(ii) publish that statement of reasons on EPA's website within 28 days of the making of the decision.

Note: The CEO's functions are referred to in section 13 and include functions delegated to the CEO under another law of the Commonwealth (see subparagraph 13(2)(c)(ii)).

23B Charter of consultation

(1) The CEO must, in writing, make a Charter of Consultation.

(2) The Charter of Consultation must include guidelines for:

(a) how the CEO is to ensure meaningful public participation in the CEO's decision-making when performing the CEO's functions; and

(b) how submissions received as part of that public participation are to be taken into account when making those decisions.

The Charter of Consultation may include guidelines on any other matters that the CEO considers appropriate.

(3) The CEO must publish the Charter of Consultation on EPA's website.

(4) The Charter of Consultation is not a legislative instrument.

(11) Page 17 (before line 3), before clause 26, insert:

25A Disclosure of relevant information for the purposes of transparency and accountability in decision-making

The CEO may disclose relevant information by publishing it on EPA's website if:

(a) the information is not protected information; and

(b) the CEO is satisfied the disclosure is required for the purposes of Division 4 of Part 3 (about transparency and accountability in decision-making).

(12) Clause 54, page 28 (after line 21), after subclause (5), insert:

(5A) The CEO must publish the name of a person appointed under subsection (3) on EPA's website as soon as practicable after the appointment.

(13) Clause 54, page 28 (after line 24), after subclause (6), insert:

(6A) Without limiting subsection (6), the terms and conditions of appointment of a member of the group must require the member:

(a) to disclose to the CEO any material personal interest, pecuniary or otherwise, that is relevant to the affairs of the CEO, EPA or the group; and

(b) to not participate in the affairs of the group in relation to a matter if the member has a material personal interest, pecuniary or otherwise, that is relevant to the matter.

(14) Clause 55, page 29 (lines 6 to 11), omit the clause, substitute:

55 CEO must publish advice

If the advisory group or any one or more of its members provides advice to the CEO in relation to the performance of the CEO's functions or the exercise of the CEO's powers, the CEO must publish the advice on EPA's website as soon as practicable afterwards unless the CEO considers that doing so:

(a) would, or could be reasonably expected to, result in an outcome set out in paragraph 23(a), (b) or (c); or

(b) is not in the public interest.

(15) Clause 56, page 29 (line 13), before "If the", insert "(1)".

(16) Clause 56, page 29 (after line 17), at the end of the clause, add:

(2) The CEO must refer to that advice in the statement of reasons for that decision.

I rise to ensure integrity in environmental decision-making. The national EPA, not a proponent, should ultimately be responsible for ensuring the community has access to adequate information about proposed developments and a genuine opportunity to express their views. To have that opportunity, the public need reasonable timeframes to allow them to access relevant information and prepare and participate effectively during environmental decision-making.

Currently, sections of the EPBC Act which relate to public comment are short and often prohibitive to the participation of many interested parties. For example, at the referral stage, the timeframe for public engagement is just 10 days. At the assessment approach stage, depending on the assessment approach chosen, public engagement is required either for a timeframe specified by the minister or for a period of 10 days. In small or remote communities, individuals often hear about consultation opportunities via word-of-mouth. By the time they're aware of the project proposal, the opportunity to engage is small, and the consultation window is often closing. Add to this the difficulties of engaging in a consultation that occurs during school holidays or festive periods, and the argument to extend these consultation windows becomes even more compelling.

In my own home community of Coonabarabran in Northern New South Wales, community consultation around a new gas project opened a week immediately preceding Christmas to then close only within the first weeks of January. I know this because I was at home at the time, and I saw the distress this created across the community. Here, you can see how short consultation timeframes can be abused. This amendment would extend the minimum timeframe for public comment under the EPBC Act to 40 days in accordance with internationally recognised guidelines that stipulate consultation should involve reasonable timeframes that allow the public to participate effectively in environmental decision-making.

The public's right to be consulted about environmental decisions is one of three access rights established under the United Nations Rio Declaration on Environment and Development, to which Australia is a signatory. Australia is also a signatory to the International Covenant on Civil and Political Rights, which enshrines the human rights to seek and receive information, public participation and remedy for rights violations, all of which apply in the context of environmental decision-making.

Genuine public participation fulfils fundamental democratic rights and improves the quality of decision-making by integrating additional knowledge and perspectives into deliberations. Put simply, when communities are given a fair go in the way a decision is made, in the decision-making process, including adequate consultation timeframes, there are better outcomes for people and nature. I commend my amendments to the government.

1:25 pm

Photo of Tanya PlibersekTanya Plibersek (Sydney, Australian Labor Party, Minister for the Environment and Water) Share this | | Hansard source

I thank the member for North Sydney for her amendments. She has just spoken about a whole set of amendments that relate to both the Environment Protection Australia legislation and the transitional amendments legislation, if I understand her correctly. I will make a few comments in response.

As I say, I'm very grateful to the member for North Sydney for moving her amendments. I thank her for her longstanding and constructive engagement with me and my office. I know she is absolutely steadfast in her commitment to build public trust in our environmental regulations and has been a very effective advocate for the people of North Sydney. The government won't be supporting these amendments, however, but I completely understand the member's intent in moving the amendments.

Given the public confidence that our environmental laws are being upheld is just one of the reasons I'm trying to set up Australia's first national independent environment protection agency. Environment Protection Australia is designed to be a tough cop on the beat, with enforcement and compliance powers to ensure our laws are being upheld. The EPA will have oversight and enforcement powers to crack down on those breaching our laws or failing to comply with the conditions of their approval. The EPA will be empowered to issue environment protection orders. These are stop-work orders where they believe there may be noncompliance. There will also be very substantial fines for breaches.

When it comes to the objects of the act that some of the other amendments go to, it is important to draw the distinction between the objects of the legislation which administers the EPA and the objects of the acts which the EPA will regulate. The EPA will be responsible for regulating nine other pieces of legislation. We cannot support the member's amendments because the scope of the bill is about establishing the EPA with the environmental objectives resting in the regulated acts like the EPBC Act, the ozone protection act or the Underwater Cultural Heritage Act. Each of those acts has its own objects. We don't believe the agency which administers these acts with their own objectives should have an additional layer of objectives beyond those already included. These already achieve what the member is looking to do, which is to promote public trust in decision-making.

The object of the EPA bill is:

… to establish Environment Protection Australia to support the delivery of accountable, efficient, outcomes-focused and transparent environmental regulatory decision-making.

Again, I thank the member for moving this amendment and acknowledge her dedication to her community.

On the issues relating to extending the public-comment period to 40 business days, which the member has also alluded to: I particularly agree with her that it is important that the public has enough time to properly engage in consultation processes on environmental matters that affect them. That's why one of the national environmental standards I'm currently consulting on will be a specific standard addressing community consultation and engagement. One of the main objectives will be to make sure that communities are properly consulted, and consulted early, so they have genuine opportunity to influence the location and the design of projects. I look forward to continuing to discuss this with the member for North Sydney. It's crucial the public get the information they need in the time they need, but I won't be supporting this amendment because the amendment is so very broad.

The proposal to change the timeframes including for things like wildlife permits, proclamations, management plans and environmental assessments would lead to some perverse outcomes. For example, the risk of extending all these to 40 days would have had a consequence in one example that has been on my desk recently: there was a captive-bred cheetah called Edie being returned to the wild in Africa. If we hadn't been able to quickly tick off on the export permit for that, Edie would have missed her spot on the Qantas jet that had been booked to take her to where she was being released into the wild. I want to avoid any unintended consequences.

I will finalise my comments on this by saying that, with the publishing of advice of the advisory group, the CEO already may publish the advice from the advisory group. I think that strikes a balance between allowing—

Photo of Steve GeorganasSteve Georganas (Adelaide, Australian Labor Party) Share this | | Hansard source

The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour, and the minister will have leave to continue speaking when the debate is resumed.