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

by leave—I move amendments (1) to (35), 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 "Australia,", insert "establishes the Board of EPA".

(3) Clause 4, page 2 (after line 20), after "the CEO of EPA.", 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.

(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 29), before paragraph (a) of the definition of entrusted person, insert:

(aa) a Board member; or

(9) Clause 5, page 4 (lines 4 to 7), 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 14), after the definition of EPA, 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 EPA and the office of the CEO of EPA. It also establishes EPA for the purposes of assisting the Board and the CEO in the performance of their functions. The Board is the accountable authority of EPA.

(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 EPA

The function of EPA 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 EPA 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 EPA, 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 EPA'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) assesses the success of the CEO in facilitating the achievement of nature positive (within the meaning of the Nature Positive (Environment Information Australia) Act 2024) during the financial year; and

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

(d) 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 13), 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 (line 6), omit "the CEO and".

(21) 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.

(22) Clause 44, page 23 (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 EPA's website.

(23) Clause 45, page 24 (line 4), omit "Minister", substitute "Board".

(24) Clause 46, page 24 (line 19), omit "Minister", substitute "Board".

(25) Clause 48, page 25 (line 5), omit "Minister", substitute "Board".

(26) Clause 48, page 25 (line 7), omit "Minister", substitute "Board".

(27) Clause 49, page 25 (line 10), omit "Minister's", substitute "Board's".

(28) Clause 50, page 25 (line 13), omit "Governor-General", substitute "Board".

(29) Clause 50, page 25 (line 15), omit "Governor-General", substitute "Board".

(30) Clause 51, page 25 (line 18), omit "Governor-General", substitute "Board".

(31) Clause 51, page 26 (line 3), omit "Minister's", substitute "Board's".

(32) Page 30 (after line 4), after clause 57, insert:

57A 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 52; or

(b) a person whose services are made available to EPA under section 53; 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.

(33) Clause 58, page 30 (line 15), omit "CEO", substitute "Board".

(34) Clause 60, page 32 (line 4), omit "the CEO and EPA have", substitute "EPA has".

(35) Clause 60, page 32 (line 21), before "the CEO", insert "the Board and".

For two years now I've been standing up in this place, highlighting the need for a greater level of independence in major Commonwealth appointments. At the last election, my constituents in Mackellar and people Australia-wide demanded that their government act with greater integrity, transparency and accountability. The government established the National Anti-Corruption Commission, which is a really positive development, but that commission is only a small part of the integrity infrastructure that needs fixing and building in this country. After all, the National Anti-Corruption Commission is a last resort for corrupt conduct. You don't need to be a doctor to understand that prevention is better than cure and we need to build our institutions from the ground up with the systems in place to ensure that they can be trusted and that ethical conduct is the norm.

I've introduced my 'ending jobs for mates' private member's bill to establish a framework for independent recruitment and appointments for major Commonwealth positions. Since then, I've sought to amend just about every government bill which dealt with such appointments, from the safeguard mechanism legislation to Jobs and Skills Australia to the National Reconstruction Fund and the new Administrative Review Tribunal. To his credit, the Attorney-General understood the problem with the appointments process in the Administrative Review Tribunal and amended the legislation to make it mandatory for tribunal members to be appointed using an independent selection panel. This means that there is a precedent for new bodies to be set up in this way by the government, so I urge the environment minister to set up Environment Protection Australia in the same way from the outset. If we are going to set it up, let's do it properly from the start.

My amendments to the legislation are simple and are in line with what the environmental community and integrity organisations have been calling for. Simply put, my amendments create an independent board to sit above the EPA, like so many other organisations have. This board would oversee the functions of the EPA 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 the EPA'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, one which all Australians would be familiar with from their experience of getting a job and would absolutely expect to be in place for positions as important as these. The selection process would require public advertising of board positions, assessment of application against selection criteria, and an independent panel to conduct the interviews and shortlist three candidates for each position for the minister's final decision. The minister would also decide which board member is selected as chair. It is really a very simple process, and a process which incorporates independent selection so that the public can trust this process and ministerial discretion so that they have the final say, thus ensuring workability.

Most environment protection agencies in the states and territories around the country have an independent board, and I have heard no adequate explanation for why this, the most important of these boards, does not have an independent board. It is, after all, the agency which has the best shot, to use the minister's own words, in turning the tide in this country from nature destruction to nature repair. I look forward to hearing from the minister to explain to the Australian public why Environment Protection Australia should not be established in this most robust way.

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