Legal Insights

Streamlining and Standards: The proposed amendments to the Environment Protection and Biodiversity Conservation Act 1999

Samantha Murphy

• 08 April 2021 • 8 min read

The Commonwealth government has introduced two bills to amend the Environment Protection and Biodiversity Conservation Act 1999 (Act), following the Independent Review of the Act by Professor Graeme Samuel AC (Review):

the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (Streamlining Approvals Bill), introduced on 27 August 2020
the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 (Standards and Assurance Bill), introduced on 25 February 2021.

The bills address just some of the 38 recommendations made in the Review, prioritising:

the implementation of new, outcome focussed, National Environmental Standards (Standards) applying to the approval of activities impacting on Matters of National Environmental Significance (MNES) protected under the Act
facilitating single-touch approval processes, to be delivered through Approval Bilaterals being entered into with each State and Territory
a new Environment Assurance Commissioner, to monitor and report on the administration of the Act.

Approval and Assessment Bilaterals

The Streamlining Approvals Bill seeks to introduce greater flexibility into the Approval Bilaterals process, to facilitate single-touch approvals for activities impacting on MNES. The bill also proposes amendments to support the sustained efficacy of both Approval and Assessment Bilaterals. Of importance to NSW developers and consent authorities, the bill proposes:

Removal of the current requirement that decisions under an Approval Bilateral must be made by the relevant State or Territory Government or its agencies. This could enable local councils or planning panels to determine activity approvals under the Act, when performing functions as consent authority under the Environmental Planning and Assessment Act 1979 (NSW).
Expansion of the processes that may be accredited under an Approval Bilateral (currently limited to a process set out in law) to include processes that are wholly or partly set out in law or an instrument made under law. This could include, for example, State or Territory procedures or guidelines.
Removal of the current exclusion from Approval Bilaterals of the assessment of coal seam gas or large coal mining development which is likely to have a significant impact on a water resources (subject to the decision-maker considering advice from the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development in deciding whether to approve the action under an Approval Bilateral).
Enabling the Minister to approve minor changes to a process accredited under an Assessment or Approval Bilateral, without the agreement having to be amended or remade, provided the Minister is satisfied that:
- the changes are not likely to have a material adverse impact on a MNES or a person’s ability to participate in the assessment process
- the bilateral agreement continues to satisfy the relevant requirements under the Act.

National Environmental Standards

While the Review recommends implementing outcome-focussed Standards for a range of decision-making processes under the Act, the Commonwealth government has indicated that it will prioritise the development of Standards applying to the environmental impact assessment of proposed activities on MNES. These Standards are intended to provide confidence in the Approval Bilateral process, as the identity of the decision maker becomes of less relevance when decision making is restrained by clear environmental outcomes. If Approval Bilaterals are able to be achieved through the Standards, this could enable:

a reduction in existing duplication in the assessment and approval process, and the time and costs for both developers and Government
improved streamlining of conditions and assessment of impacts
more efficient administration of the Act by the Commonwealth, by changing its role from a decision maker to providing oversight of State and Territory processes.

We set out below how these bills work together in seeking to implement the Standards.

Proposed amendments	Standards and Assurance Bill	Streamlining Approvals Bill
Framework for the Standards	The Minister may create, vary or revoke a Standard by legislative instrument. The legislative instrument will specify which decisions under the Act are subject to the relevant Standard. When making a prescribed decision, the Act will require the decision-maker to be satisfied that the decision is not inconsistent with the Standards. (Note: This bill sets out the framework for making the Standards. The ultimate form the Standards will take has not yet been finalised.) The Standards must be reviewed within two years (so that the initial Standards act as ‘interim standards’), and then at least five yearly intervals thereafter.
Compliance of bilateral agreements with the Standards	The Minister may only enter into a bilateral agreement if satisfied that processes accredited under the agreement are not inconsistent with the Standards. An Approval Bilateral is required to include a declaration that a decision to approve an action will not be inconsistent with the Standards. The Minister must notify each State and Territory of the Standards and request advice on whether the processes accredited under existing Assessment Bilaterals are inconsistent with the Standards.
Ensuring the Standards are upheld by the States and Territories	Acting inconsistently with the Standards will be grounds for the suspension or cancellation of a bilateral agreement. While the Commonwealth Minister may depart from the Standards, if satisfied that it is in the public interest, this must be done by legislative instrument (a power which cannot be transferred to a State or Territory under an Approval Bilateral).	New provisions are proposed to facilitate the exercise of a ‘call in’ provision in an Approval Bilateral. These provisions clarify the procedures that would apply under the Act if the Commonwealth steps in to complete the assessment and approval of a particular action. If an Approval Bilateral is suspended or cancelled, the Minister may elect to use any assessment that was carried out under the agreement in deciding whether to grant the approval under the Act.
Oversight of the Commonwealth, States and Territories	An Environment Assurance Commissioner will be established to monitor the operation of bilateral agreements, as well as Commonwealth assessment, approval and enforcement processes under the Act. The Commissioner is not subject to the directions of the Minister in performing its functions and must report on its functions and any audits conducted.

Progress of the bills

The Standards and Assurance Bill has been referred to the Senate Environment and Communications Legislation Committee (Committee), which is due to report on the bill on 1 June 2021.

The Committee reported on the Streamlining Approvals Bill on 27 November 2020, and it is currently before the Senate.

Other proposed amendments to the Act

Several private bills proposing amendments to the Act are also before the Parliament. These include:

Bill	Sponsor	Amendments proposed
Commonwealth Environment Protection Authority Bill 2021	Independent Member, Andrew Wilkie	Establish a Commonwealth Environment Protection Authority to carry out the Commonwealth’s assessment, approval and compliance functions under the Act.
Environment Protection and Biodiversity Conservation Amendment (Save the Koala) Bill 2021	Greens Senator, Sarah Hanson-Young	Increase protections for koalas and koala habitat.
Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) 2020	Greens Senator, Sarah Hanson-Young	Require approval for emissions-intensive actions (including mining, drilling exploration and land clearing) that are likely to have a significant impact on the environment.
Environment Protection and Biodiversity Conservation Amendment (Regional Forest Agreements) Bill 2020	Nationals Senator, the Hon Bridget McKenzie	Clarify the exemption of regional forestry agreements from Part 3 of the Act.