Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the bill be agreed to. The member for Moncrieff is seeking the call for a point of order?

Angie Bell (Moncrieff, Liberal National Party, Shadow Minister for Youth) Share this | Link to this | Hansard source

I'm seeking the call to speak to the consideration in detail on the EPA bill.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The member for Mackellar has listed her consideration in detail amendments, and the process is that we go through the ones that are listed as consideration in detail. I understand that you don't have any amendments yourself; you wish to speak to consideration in detail, and we will get to that to make sure that you do. I just remind the House that the result of the suspension motion that we have done, which is on the Notice Paper, is that there will be five minutes allocated for this debate. The member for Mackellar has the call to move her amendments.

Sophie Scamps (Mackellar, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (34) as circulated in my name together:

(1) Clause 2, page 2 (table item 1), omit the table item, substitute:

(2) Clause 4, page 2 (line 20), after "Agency,", insert "establishes the Board of NEPA".

(3) Clause 4, page 2 (after line 21), after the paragraph beginning "This Act establishes", insert:

The Board's functions include appointing the CEO, determining policies and long-term strategic plans for the CEO, advising the CEO and assessing and reporting on the CEO's performance of the CEO's functions.

(4) Clause 4, page 3 (line 2), omit "the CEO and".

(5) Clause 4, page 3 (lines 3 to 5), omit "the CEO's independence by directing the CEO in the performance or exercise of the CEO's functions or powers", substitute "the Board's or the CEO's independence by directing them in the performance or exercise of their functions or powers".

(6) Clause 5, page 3 (after line 17), after the definition of advisory group, insert:

Board: see section 11A.

Board member means a member of the Board and includes the Chair and Deputy Chair.

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

Chair: see subsection 11D(5).

Deputy Chair: see subsection 11D(5).

(8) Clause 5, page 3 (before line 28), before paragraph (a) of the definition of entrusted person, insert:

(aa) a Board member; or

(9) Clause 5, page 4 (lines 3 to 6), omit paragraph (d) of the definition of entrusted person, substitute:

(d) a person engaged under section 23 of the Public Governance, Performance and Accountability Act 2013 by the Board under a written agreement to assist in, or advise in relation to, the performance of the Board's functions or the CEO's functions; or

(10) Clause 5, page 4 (after line 12), after the definition of environment, insert:

former judge means:

(a) a former Justice of the High Court; or

(b) a former judge of the Federal Court of Australia; or

(c) a former judge of the Supreme Court of a State or Territory.

Indigenous person means a person who is:

(a) a member of the Aboriginal race of Australia; or

(b) a descendant of an Indigenous inhabitant of the Torres Strait Islands.

(11) Clause 8, page 6 (lines 3 to 7), omit the clause, substitute:

8 Simplified outline of this Part

This Part establishes the Board of NEPA and the office of the CEO of NEPA. It also establishes NEPA for the purposes of assisting the Board and the CEO in the performance of their functions. The Board is the accountable authority of NEPA.

(12) Clause 9, page 7 (line 8), omit "CEO", substitute "Board".

(13) Clause 9, page 7 (before line 10), before subparagraph (2)(c)(i), insert:

(ia) the Board members;

(14) Clause 9, page 7 (after line 15), after subparagraph (2)(d)(i), insert:

(ia) the functions of the Board referred to in section 11B; and

(15) Clause 10, page 7 (before line 19), before paragraph (a), insert:

(aa) the Board; and

(16) Clause 11, page 7 (lines 23 to 25), omit the clause, substitute:

11 Function of NEPA

The function of NEPA is to assist the Board and the CEO in the performance of their functions.

(17) Page 7 (after line 25), after Division 2, insert:

Division 2A — The Board

Subdivision A — Establishment and functions

11A Establishment

The NEPA Board is established by this section.

11B Functions of the Board

(1) The Board has the following functions:

(a) to appoint the CEO;

(b) to monitor, assess and report on the CEO's performance of the CEO's functions;

(c) to ensure that the CEO performs the CEO's functions consistently with the object of this Act;

(d) to determine the policies and long-term strategic plans of NEPA, and of the CEO in relation to the performance of the CEO's functions, including policies and plans relating to organisational governance and risk management;

(e) to determine what proportion of NEPA's budget should be spent on monitoring, compliance, enforcement and assurance;

(f) to advise the CEO on any matter relating to the protection of the environment or relating to the object of this Act (at the CEO's request or on the Board's own initiative).

(2) The Board must, as soon as practicable after the end of each financial year, give the Minister a written report that:

(a) assesses the success of the CEO in performing the CEO's functions during the financial year in an accountable, efficient, outcomes-focused and transparent manner; and

(b) includes any recommendations made under or in relation to paragraphs (1)(b) to (e) or paragraph (a) of this subsection; and

(c) addresses any other matters prescribed by the rules.

(3) The Minister must cause a copy of each report given under subsection (2) to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives it.

(4) The Board has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.

Subdivision B — Membership and appointment

11C Membership of the Board

(1) The Board consists of the following members:

(a) the Chair;

(b) the Deputy Chair;

(c) not fewer than 5, and not more than 7, other members.

(2) The performance of the functions, or the exercise of the powers, of the Board is not affected by reason only of paragraph (1)(c) not being complied with for a period of not more than 6 months.

11D Appointment

(1) The Board members are to be appointed by the Minister by written instrument.

(2) A person must not be appointed as a Board member unless the Minister is satisfied that:

(a) the person has substantial experience or knowledge, and significant standing, in one or more of the following:

(i) environmental regulation;

(ii) conservation of biodiversity;

(iii) ecological sustainable development;

(iv) heritage;

(v) Indigenous affairs;

(vi) law;

(vii) natural resource management;

(viii) any other field prescribed by the rules; and

(b) the person does not have any interests, pecuniary or otherwise, that conflict or could conflict with the proper performance of the Board's functions; and

(c) at least 1 Board member is an Indigenous person.

(3) A person must not be appointed as a Board member under this section unless:

(a) the selection of the person for the appointment is the result of a process that includes:

(i) public advertising of the selection criteria for the position for at least 10 consecutive days; and

(ii) assessment of applications against the selection criteria by an independent panel consisting of at least 3 members and chaired by a former judge; and

(iii) shortlisting of at least 3 persons for the appointment that are certified, in writing, by the panel to meet all of the selection criteria; and

(b) the person is one of the shortlisted candidates.

(4) Within 7 days after a person is appointed as a Board member, the Minister must cause a copy of the written certification for the person (referred to in subparagraph (3)(a)(iii)) to be:

(a) tabled in each House of the Parliament; or

(b) if a House is not sitting—presented to the Presiding Officer of that House for circulation to the members of that House.

(5) The Minister must, by written instrument, appoint:

(a) one of the Board members to be the Chair; and

(b) another of the Board members to be the Deputy Chair.

(6) An appointment of the person as the Chair or Deputy Chair ceases if the person's appointment as a Board member ceases.

11E Term of appointment

(1) A Board member holds office for the period specified in the instrument of appointment. The period must not exceed 6 years.

Note: A Board member may be reappointed: see section 33AA of the Acts Interpretation Act 1901.

(2) However, the period of appointment for 4 of the first set of Board members must not exceed 3 years.

Note: This ensures staggered appointments.

(3) A Board member holds office on a part-time basis.

11F Acting appointments

Acting by operation of law

(1) The Deputy Chair is to act as the Chair:

(a) during a vacancy in the office of Chair (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the Chair:

(i) is absent from duty; or

(ii) is, for any reason, unable to perform the duties of the office.

Acting appointments

(2) The Minister may, by written instrument, appoint a Board member to act as the Deputy Chair:

(a) during a vacancy in the office of Deputy Chair (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the Deputy Chair:

(i) is acting as the Chair; or

(ii) is absent from duty; or

(iii) is, for any reason, unable to perform the duties of the office.

(3) The Minister may, by written instrument, appoint a person to act as a Board member (other than the Chair or the Deputy Chair):

(a) during a vacancy in the office of a Board member (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when a Board member:

(i) is acting as the Deputy Chair; or

(ii) is absent from duty; or

(iii) is, for any reason, unable to perform the duties of the office.

Qualifications etc. of acting Board members

(4) Subsections 11D(2) to (4) apply to an appointment under subsection (3) of this section in the same way as they apply to an appointment under section 11D.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

11G Remuneration

(1) A Board member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the rules.

(2) A Board member is to be paid the allowances that are prescribed by the rules.

(3) Subsections 7(9) and (13) of the Remuneration Tribunal Act 1973 do not apply in relation to the office of a Board member.

Note: The effect of this subsection is that remuneration or allowances of a Board member will be paid out of money appropriated by an Act other than the Remuneration Tribunal Act 1973.

(4) This section has effect subject to the Remuneration Tribunal Act 1973 (except as provided by subsection (3)).

11H Leave

(1) The Minister may grant the Chair leave of absence on the terms and conditions that the Minister determines.

(2) The Chair may grant leave of absence to any other Board member on the terms and conditions that the Chair determines.

(3) The Chair must notify the Minister if the Chair grants a Board member leave of absence for a period that exceeds 6 months.

11J Resignation

(1) A Board member may resign the member's appointment by giving the Minister a written resignation.

(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

11K Termination

(1) The Minister may terminate the appointment of a Board member:

(a) for misconduct; or

(b) if the member is unable to perform the duties of the member's office because of physical or mental incapacity.

(2) The Minister must terminate the appointment of a Board member if:

(a) the member:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii) compounds with the member's creditors; or

(iv) makes an assignment of the member's remuneration for the benefit of the member's creditors; or

(b) the member is absent, except on leave of absence, from 3 consecutive meetings of the Board.

Note: The appointment of a Board member may also be terminated under section 30 of the Public Governance, Performance and Accountability Act 2013 (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials).

11L Other terms and conditions

A Board member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

Subdivision C — Procedures of the Board

11M Convening meetings

(1) The Board must hold such meetings as are necessary for the efficient performance of its functions.

(2) The Chair:

(a) may convene a meeting at any time; and

(b) must convene at least 4 meetings each calendar year; and

(c) must convene a meeting within 30 days after receiving a written request to do so from:

(i) a majority of the Board members; or

(ii) the Minister.

11N Quorum

(1) At a meeting of the Board, a quorum is constituted by a majority of the Board members.

(2) However, if:

(a) a Board member is required by rules made for the purposes of section 29 of the Public Governance, Performance and Accountability Act 2013 not to be present during the deliberations, or to take part in any decision, of the Board with respect to a particular matter; and

(b) when the Board member leaves the meeting concerned there is no longer a quorum present;

the remaining Board members constitute a quorum for the purposes of any deliberation or decision at that meeting with respect to that matter.

11P Presiding at meetings

(1) The Chair must preside at all meetings of the Board at which the Chair is present.

(2) If the Chair is not present at a meeting of the Board, the Deputy Chair, if present, must preside at the meeting.

(3) If neither the Chair nor the Deputy Chair is present at a meeting of the Board, the other Board members present must appoint one of themselves to preside.

11Q Voting at meetings

(1) A question arising at a meeting of the Board is to be determined by a majority of the votes of the Board members present and voting.

(2) The person presiding at the meeting of the Board has a deliberative vote and, if the votes are equal, a casting vote.

11R Minutes

The Board must keep minutes of its meetings.

11S Conduct of meetings

The Board may, subject to this Subdivision, regulate proceedings at its meetings as it considers appropriate.

Note: Section 33B of the Acts Interpretation Act 1901 contains further information about the ways in which Board members may participate in meetings.

11T Decisions without meetings

(1) The Board is taken to have made a decision at a meeting if:

(a) without meeting, a majority of the Board members entitled to vote on the proposed decision indicate agreement with the decision; and

(b) that agreement is indicated in accordance with the method determined by the Board under subsection (2); and

(c) all the Board members were informed of the proposed decision, or reasonable efforts were made to inform all the Board members of the proposed decision.

(2) Subsection (1) applies only if the Board:

(a) has determined that it may make decisions of that kind without meeting; and

(b) has determined the method by which Board members are to indicate agreement with proposed decisions.

(3) For the purposes of paragraph (1)(a), a Board member is not entitled to vote on a proposed decision if the member would not have been entitled to vote on that proposal if the matter had been considered at a meeting of the Board.

(4) The Board must keep a record of decisions made in accordance with this section.

(18) Clause 14, page 9 (line 22), at the end of the clause, add:

Note: The CEO's discretion is subject to the policies, plans, determinations, advice and recommendations of the Board: see section 11B.

(19) Clause 15, page 10 (line 5), omit "the CEO and".

(20) Clause 16, page 11 (lines 7 and 8), omit subclause (2), substitute:

(2) A statement of expectations cannot direct the Board or the CEO in the performance or exercise of their functions or powers.

(21) Clause 45, page 24 (lines 3 to 25), omit subclauses (1) and (2), substitute:

Appointment by the Board

(1) The CEO is to be appointed by the Board by written instrument.

Qualifications for appointment

(2) A person must not be appointed as the CEO unless the Board is satisfied that:

(a) the person has substantial experience or knowledge, and significant standing, in one or more of the following:

(i) environmental regulation;

(ii) conservation of biodiversity;

(iii) ecological sustainable development;

(iv) any other field prescribed by the rules; and

(b) the person does not have any interests, pecuniary or otherwise, that conflict or could conflict with the proper performance of the CEO's functions.

(2A) A person must not be appointed as the CEO under this section unless:

(a) the selection of the person for the appointment is the result of a process that includes:

(i) public advertising of the selection criteria for the position for at least 10 consecutive days; and

(ii) shortlisting of at least 3 persons for the appointment that are certified, in writing, by the Board to meet all of the selection criteria; and

(b) the person is one of the shortlisted candidates.

(2B) Within 7 days after a person is appointed as the CEO, the Board must cause a copy of the written certification for the person (referred to in subparagraph (2A)(a)(iii)) to be published on NEPA's website.

(22) Clause 46, page 25 (line 4), omit "Minister", substitute "Board".

(23) Clause 47, page 25 (line 19), omit "Minister", substitute "Board".

(24) Clause 49, page 26 (line 5), omit "Minister", substitute "Board".

(25) Clause 50, page 26 (line 10), omit "Minister's", substitute "Board's".

(26) Clause 51, page 26 (line 13), omit "Governor-General", substitute "Board".

(27) Clause 51, page 26 (line 15), omit "Governor-General", substitute "Board".

(28) Clause 52, page 26 (line 18), omit "Governor-General", substitute "Board".

(29) Clause 52, page 27 (line 3), omit "Minister's", substitute "Board's".

(30) Page 32 (after line 24), after clause 59, insert:

59A Delegation by the Board

(1) The Board may, in writing, delegate any of the Board's functions or powers (other than a function or power in Part 5) to:

(a) a member of the staff referred to in section 53 or

(b) a person whose services are made available to NEPA under section 54; or

(c) an individual engaged, or an individual employed or engaged by a person engaged, under section 23 of the Public Governance, Performance and Accountability Act 2013 by the Board under a written agreement to assist in, or advise in relation to, the performance of the Board's functions.

Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.

(2) However, the Board must not delegate a function or power under subsection (1) to a person unless the person:

(a) is an SES employee or acting SES employee; or

(b) holds, or is acting in, a position that is equivalent to a position occupied by an SES employee; or

(c) holds, or is acting in, an Executive Level 1 or 2, or equivalent, position.

Note: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

(3) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Board.

(31) Clause 60, page 32 (line 26), omit "CEO", substitute "Board".

(32) Clause 61, page 33 (line 12), omit "the CEO and NEPA have", substitute "NEPA has".

(33) Clause 61, page 33 (line 29), after "given to", insert "the Board and".

(34) Clause 61, page 34 (line 5), before "the CEO", insert "the Board and".

If we are serious about reversing the destruction of our nature and providing certainty for business then we must ensure that the National Environment Protection Agency, NEPA, is trusted by business, the community and civil society. To achieve that, it must be a truly independent arbiter and built on a foundation of transparency. NEPA will not be truly independent if the CEO is appointed by the minister of the day and if there is no independently selected board.

Australians are watching the decline of our nature and wildlife with growing alarm and heartbreak. They expect their government to respond with credible action to reverse this decline. My amendments to the National Environmental Protection Agency Bill 2025 are simple and are in line with what the environmental community and integrity organisations have been calling for. My amendments create an independent board to sit above NEPA, as is common with many other organisations. This board would oversee the functions of NEPA and, importantly, select the CEO. The board's functions would include appointing the CEO, determining policies and long-term strategic plans for the CEO, advising the CEO, and assessing and reporting on the CEO's performance. The board would have up to seven members, each with substantial experience and knowledge and significant standing in an area relevant to NEPA's functions. At least one board member must be an Indigenous person.

Critically, the board would be appointed through a robust and independent selection process, a process that most people would expect to be in place for positions as important as these. The selection process would require public advertising of the board positions, assessment of applications against selection criteria, and an independent panel to conduct the interviews and shortlist three candidates for each position for the minister's final selection. The minister would also decide which board member is selected as chair.

If a perception arises that a CEO is appointed because of who they know or their political proclivities rather than what they bring to the role, public trust in the integrity of the institution will be undermined. These amendments are common sense, and I've spent years now in this place pointing out the need for a greater level of independence in major Commonwealth public appointments such as this. Having a truly independent national EPA will be a critical factor in whether we do actually turn around the decline of our nature over the next decade. Australians, business and environment groups deserve a NEPA—a National Environmental Protection Agency—they can trust, and that means it has to be established in such a way that it is truly independent. This requires both the board and the CEO to be independently appointed. I commend these amendments to the House.

Mr Tony Burke (Watson, Australian Labor Party, Leader of the House) Share this | Link to this | Hansard source

The government will not be supporting the amendments. The model that the government has decided to adopt for the National Environmental Protection Agency is that of a non-corporate Commonwealth entity. This provides an optimal model for independence for matters of compliance and enforcement while maintaining democratic accountability for approvals. This model involves standard statutory appointment processes for the CEO and is ultimately accountable to the minister. A board is not complementary to this model. Instead, the CEO of the EPA can appoint advisory groups to be able to assist them and provide advice on their functions.

Angie Bell (Moncrieff, Liberal National Party, Shadow Minister for Youth) Share this | Link to this | Hansard source

I'm aggrieved by this government, which has gagged debate time and time again. We have all been here witnessing what's been going on. What is this government hiding? They did not allow me the opportunity to speak in consideration in detail and to ask the minister who is representing the environment minister in this House questions on the Environment Protection Reform Bill 2025 and the bill that we are now talking about, the National Environmental Protection Agency Bill 2025. We have questions, on behalf of Australians, that this minister will not answer. He will not give the coalition the opportunity to ask questions in consideration in detail. Now, this does not look to me and this does not look to Australians to be a government that is willing to negotiate on the EPBC reform bills. To shut down debate, when I had 50 questions for you, Minister, in consideration in detail, and then to be closed—

Sharon Claydon (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

The time allotted for this debate has expired.

Angie Bell (Moncrieff, Liberal National Party, Shadow Minister for Youth) Share this | Link to this | Hansard source

Shame on you!

Sharon Claydon (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

I need you to take your seat now, thank you. The question is that the amendment be agreed to; that's the question before the House now.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question before the House is that the amendments moved by the honourable member for Mackellar be agreed to.