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

We're dealing with the consideration in detail regarding the member for North Sydney's amendments (1) to (16). The question before the House is that the amendments be agreed to.

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

Just to finalise the government's response to the amendments moved by the member for North Sydney previously when we were discussing this issue, as I said in those comments, I very much respect the intent of the member's amendments, and I certainly will continue to work with the member and other members of the crossbench on this legislation.

The final issue that the member raised that I wanted to address was her amendment relating to the publishing of advice that the CEO of Environment Protection Australia may appoint an advisory group. The legislation that we are proposing already says that the CEO of Environment Protection Australia may publish the advice from the advisory group or one or more of its members on the Environment Protection Australia website where it's appropriate to do so. This supports transparency, but it also balances considerations that there is some information that the advisory group may have that is not appropriate to make public.

I wanted to give the House a couple of examples of this. It may be, for example, that Environment Protection Australia is making a decision that relates to a parcel of land where there are threatened species. There may be the last few examples of a threatened plant. That is very attractive to plant collectors if they know the exact location. Members would be very well aware of the finding some decades ago of the Wollemi pine, which, of course, is a tree that was common 91 million years ago. It's commonly referred to as a 'dinosaur plant'. They were thought to have become extinct about two million years ago, until an off-duty national parks staff member found some—a tiny stand of them. Since that time, there has been every effort made to propagate these plants—you can buy them, of course—but also to translocate them to other, secret locations in the hope that they may grow again in the future.

The original stand of Wollemi pines has been infected by a pathogen—phytophthora root rot—because it seems someone who thought they were doing absolutely no harm went with no malice to visit the location of these Wollemi pines, and now these trees that had survived for millions of years are actually in danger of dying of root rot. They can treat the symptoms, but they can't eliminate the pathogen.

There are other examples, like the 40 million-year-old Springbrook leatherwood trees in South-East Queensland. There are a tiny a number of them in a tiny part of a national park in South-East Queensland. People being able to locate these last remaining examples of threatened species would be a real problem.

The other example, of course, is there may be advice from traditional owners. Traditional owners have every right to control the information that they provide to Environment Protection Australia. It is an absolutely fundamental premise and tenet of our environmental law reforms that, where traditional owners provide information about the lands that they are responsible for, they have control of that information.

I should also say that the advisory group will comprise a variety of members. They won't function by consensus. You might have advice from an engineer and an ecologist that give you different perspectives on a decision. We won't be getting one piece of advice from the advisory group that then goes to Environment Protection Australia. The CEO of the EPA will be entitled to take different advice or different perspectives from the different experts that they have, so that may also limit the advice that the experts are prepared to give.

Kylea Tink (North Sydney, Independent) Share this | Link to this | Hansard source

I want to thank the minister for her response just then to the amendments that I moved yesterday. I just want to pick up on a few of the things in the minister's answer to me. The amendments that were moved were moved in consultation with a number of people that are already incredibly active when it comes to having a very clear sense of goodwill vested in seeing the absolute strongest version of an environmental protection agency established here in Australia. I think at the heart of it, as the minister, her team and I have discussed, there is a very real concern that the recognition of obligation to community does not lie in the primary piece of legislation.

Beyond that, access to and the publication of information—responding to what we just heard from the minister—that has been used to make a decision is an essential component of people being able to understand what has helped an organisation come to their final point. In my original speech, I actually referenced a project that's taking place very near my home in Coonabarabran, in the Pilliga forest, the largest native forest west of the Blue Mountains. When that project was first announced to the community and the process was opened, they received 23,000 submissions on that proposal, and close to 95 per cent of those submissions were against that project. Yet, when the project was approved, there were only five paragraphs in the final report even referencing those submissions.

So my response to what we've just heard from the minister, while I absolutely respect everything she has offered in terms of the importance of not providing information because you wish to protect species or the location of sites, is that it's not the absence of that information that the people I've spoken to are concerned about; it's actually the absence of the arguments when a decision has been made to proceed with a project. People really want to understand how we can have a case where 23,000 submissions were made and over 90 per cent said, 'No, we don't want this to proceed,' and yet the project still went ahead. I think there is still room within this legislation to improve that. I really respectfully request that the minister and her team look at that as part of the bill.

You can still retain information. You can do that on the grounds that we could introduce subsets here that say 'information retained due to protective nature of species' or 'information retained due to respect for traditional custodians'. But to just say we can't provide it all because we may end up accidentally giving good information away, I think, provides a really big shield for the bad information that community is concerned about. Ultimately, proponents will go looking for it, and proponents will try and elevate up over the top of any other advocacy groups.

I apologise if the minister touched on this yesterday, but I just want to come back to it. We know at the moment that all of the state EPAs have a charter when it comes to their operations. Really, I thought it was quite significant that there is no charter for the federal EPA. I wondered if the minister could help me understand why there's this break with what seems to be fairly standard practice between the two levels.

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

I thank the member for North Sydney. Just on the second question first, the way that we are handling the description of the expectations of Environment Protection Australia is that I will write to the CEO of Environment Protection Australia with a statement of expectations, as the minister. That will be a public document. The CEO of Environment Protection Australia will respond with a statement of intent. That will also be a public document. I will make it very clear as minister. Any subsequent minister will write their own statement of expectations, and the EPA CEO will then respond with how they will properly discharge those expectations.

I would also draw the honourable member's attention to the fact that transparency is an object of the act. The CEO can publish as much information as the CEO wishes to publish.

Of course, regarding the issue that she's raised on community consultation, we will have a national standard on community consultation that will describe the expectations of community consultation, because I do understand how very important it is for local communities to have the opportunity, a proper opportunity, to make their views known about a proposed project. Quite often, what happens in these instances is that we get very large numbers of people signing a form letter. So it can be that you have many thousands of people responding to a proposed project, but the information provided in those responses isn't always unique information 23,000 times. It can be quite similar information provided a number of times.

Kylea Tink (North Sydney, Independent) Share this | Link to this | Hansard source

I promise this is my final question. Again, I acknowledge that the minister, her team and I have had this conversation, and again I would appeal that this be considered as this legislation goes to the Senate. The challenge of separating this bill, which I consider and many consider to be the primary piece of legislation, from the national standard when it comes to community consultation is that we have no line of sight on when we will see that national standard of community consultation. So the principle of reflecting that obligation to community engagement—the legislation makes it pretty clear that there is an obligation to proponents. I think that there is still an opportunity to strengthen this legislation by bringing that same responsibility into what I would call the head legislation, as opposed to leaving it to the national standards, particularly given that we don't have a line of sight on when those national standards will come—and, in a worst-case scenario, they never come. I just wanted to put that on record.

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 North Sydney be agreed to.

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

Kate Chaney (Curtin, Independent) Share this | Link to this | Hansard source

On many occasions, I've reiterated how supportive I am of an independent federal EPA, appropriately funded. Assessments and decision-making must follow an independent and transparent process. The EPA bill before this House anticipates the new EPA CEO will be appointed on direct recommendation of the minister or government. I agree with the member for Mackellar that it would be preferable for this appointment to be transparently made by an independent board: a board that's completely independent of government, management and stakeholder groups; a board that will ensure the CEO is performing their functions in an accountable, efficient, transparent and outcomes focused manner. This is good governance, and it's not a surprise that this was the model proposed by many experts during the consultation process.

Ensuring the board has members with substantial expertise in matters of environmental regulation, conservation, biodiversity or ecologically sustainable developmental heritage or Indigenous affairs will mean that the board's appropriately constituted to both appoint and effectively assess the performance of the CEO and can understand the administration and operation of the legislative functions and powers of the EPA. This is just good governance. I urge the government to accept these amendments. I support the proposed amendments moved by the member for Mackellar to the EPA bill and the establishment and functions of a board and related provisions.

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

I again want to really thank the member for Mackellar for her amendments. I won't be supporting these amendments, but I do really want to acknowledge the spirit and the intent behind the amendments. I certainly agree that it is important that we have a robust and independent Environment Protection Agency. That's why we are setting up the EPA to be an independent statutory body.

The reason we're doing this legislation in two tranches—which Professor Graeme Samuel has said is a very sensible way to proceed—is that we want the organisation up and running, the staff ready to go and all the rest of it before they're administering the new laws. I think the idea that a new organisation—still getting the business cards printed—could administer a whole lot of new laws at the same time is a recipe for all sorts of confusion. So we have brought this legislation forward to deliver accountable, efficient, outcomes-focused and transparent decision-making.

In my view, the proposed government's arrangements for Environment Protection Australia strike the right balance between enabling independence from the minister and the government of the day while ensuring that Environment Protection Australia does not become a separate legal entity to the Commonwealth, as is the case with corporate Commonwealth entities. Environment Protection Australia will have its own budget, separate from the department of the environment et cetera. It will publish its own annual reports. It won't be able to be directed by the secretary of my department and it can't be directed by me, other than by the general direction that I give through my statement of expectations and the statement of intent that the CEO of the EPA responds with. This is a very big change from the current situation. Currently, the Environment Protection and Biodiversity Conservation Act is completely regulated by my department. The regulator reports to the secretary of my department and to me; there is no independence there. At the same time, I think we do need to have a model which recognises that decision-making will continue to be shared between Environment Protection Australia and the minister. Under the current law, Environment Protection Australia will make certain decisions as the delegate of the minister and the minister will continue to have some role, even under our new laws.

This relationship between Environment Protection Australia and the minister in decision-making is one of the issues that has been most contested during the law reform process. The honourable member has spoken about the view of environmental organisations, and I understand the view of the environmental organisations. What we're trying to do with these new laws is both to improve environmental protection and also to give faster, clearer decisions to business. We're trying to balance these two imperatives because while we know that our environment is in trouble and that we need to better look after it, we also need to continue to be able to build housing, roads, transmission lines, solar farms and all the rest of it. Many people want no decision-making role for the EPA and some want no role for the minister. We're trying to balance these two things, and I believe that we have the balance right, currently, with Environment Protection Australia. We'll continue to discuss the balance of these decision-making responsibilities as part of stage 3 of the reforms. And, of course, we'll have the opportunity to examine those laws when they're released as an exposure draft, so members will have an opportunity, once again, of letting us know whether they believe that balance is right at that time.

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.

Zali Steggall (Warringah, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (4) to (9) on the sheet revised 27 June 2024, as circulated in my name, together:

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

3 Object

(1) The object of this Act is to establish a national environmental regulator, the Chief Executive Officer of Environment Protection Australia, in order to:

(a) enhance the protection of Australia's environment; and

(b) prevent the degradation of Australia's environment and reduce risks to human health; and

(c) deliver accountable, efficient, outcome-focused, transparent and informed environmental regulatory decision-making, and as a result promote public trust in that decision-making; and

(d) deliver proportionate and effective risk-based compliance and enforcement responses, using data and information, including providing assurance that environmental outcomes are being met.

(2) Paragraph (1)(c) includes decision-making informed by persons who are:

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

(b) descendants of Indigenous inhabitants of the Torres Strait Islands.

(4) Page 9 (after line 8), after clause 13, insert:

13A Duties of the CEO

The CEO has the following duties when performing the CEO's functions:

(a) to act consistently with the object of this Act (see paragraphs 3(1)(a) to (d));

(b) to follow principles of ecologically sustainable development;

(c) to act consistently with the human right to a healthy environment for all.

(5) Clause 15, page 10 (line 9), after "registrable decisions)", insert ", offsets relating to approvals under the Environment Protection and Biodiversity Conservation Act 1999".

(6) Clause 16, page 11 (before line 10), before paragraph (3)(a), insert:

(aa) ensure that the statement is consistent with the object of this Act (see paragraphs 3(1)(a) to (d)) and with the CEO's duties set out in section 13A; and

(7) Clause 17, page 11 (before line 24), before paragraph (2)(a), insert:

(aa) ensure that the statement is consistent with the object of this Act (see paragraphs 3(1)(a) to (d)) and with the CEO's duties set out in section 13A; and

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

(aa) a register of offsets relating to approvals under the Environment Protection and Biodiversity Conservation Act 1999, including details of the following for each offset:

(i) the species affected by the offset;

(ii) the agreements relating to the offset;

(iii) the specific offset project, including its geographical location.

(9) Page 13 (after line 23), after clause 20, insert:

20A Register of offsets

The rules may make provision in relation to the register of offsets mentioned in paragraph 18(1)(aa), including (without limitation) the information in relation to each offset that the CEO must publish on the register.

Note 1: The rules may, for example, prescribe that the CEO must publish the name of a person with a particular connection to the offset.

Note 2: The CEO is not required to publish certain sensitive information: see section 23.

We must start to acknowledge that our environmental laws are broken and that these bills, while a welcome step, will do little to fix them. This is tranche 2 of the reforms from the minister. Tranche 1 included a water trigger and was passed late last year. It was great to legislate it, but unfortunately it is completely ineffective if it is not actually used.

I should say to the minister that, as we consider these amendments and this bill and consider whether it will be effective in improving environmental protection, we do look to past conduct. The problem is, in relation to, for example, the Tamboran and Beetaloo gas projects, a number of us have written to the minister asking her to use those new powers under tranche 1 of the reform to recall that project in to be assessed in relation to its water use. Unfortunately, earlier this week we received a letter from the minister really stating unsatisfactory excuses as to why this gas project remains unreferred under the EPBC Act despite grave concerns and the past history by this proponent of being fined for dumping wastewater.

So it begs a question. These legislations before us will not have the effect that is stated unless they are robust, they are utilised and the intent is in fact very clear and specific. As I understand it, regarding all of the amendments and the discussions that have been had with the minister and her team, while I am very thankful for the opportunity to do that, the difficulty is it does not appear that there is any willingness to actually accept any amendments that are all here and are reasonable to ensure better legislation.

The amendments that I'm moving now are absolutely reasonable and sensible. In fact, some were even included in the minister's and the government's own nature positive consultation documents but later dropped. In particular, they introduced clear objects and duties to ensure the duties of the EPA formed under this legislation and with the minister can achieve, amongst other things, the enhancement of the Australian environment. We need to be specific about the objects of this legislation and the EPA formed under this legislation.

This amendment provides greater transparency and accountability for offsets to ensure proponents are not double-counting offsets, as was reported just recently in the media. The amendments include providing more detailed objects to the Environment Protection Australia bill, linking those objects to the EPA's duties and any ministerial statement of expectations and minister's statement of intent.

My concern is that, as the legislation is currently drafted, without being explicit in the legislation we will have different ministers who can then make vastly different statements of expectations and statements of intent, which very much lower the bar when it comes to the expectations of how this EPA will work. Objects and duties guide the EPA in its activities and assist decision-making, and they actually make it arm's length from that political intervention, so it is really important for it to be specific in the legislation. It also keeps the EPA accountable to delivering the outcomes that this legislation seeks to achieve. It is one of the key mechanisms in which decisions can be reviewed by the courts to ensure they are consistent with the objects of the legislation.

I note the minister in my discussions flagged potential legal complexities regarding having objects in this way, but the EPA equivalents in states such as New South Wales and Victoria still contain quite comprehensive objects within their EPA legislation while discharging responsibilities relating to many other environmental laws that also have their own objects. I should say that I did a search of all the laws that this EPA would essentially enact, and not all have detailed objects, so there are gaps that need to be addressed. The minister's own press release on the tranche 2 reforms also recognised the concerning results of an offsets audit and the need to urgently strengthen the enforcement of offsets. Yesterday, the media reported that the department's audit of 20 offset sites showed that 30 per cent of sites had worse conditions than the offsets plan and that two sites overlapped with existing offset sites. So I'm also moving an amendment to include an additional register of offsets to avoid this overlap. This will provide greater transparency about where offsets have been secured and which offsets have been secured and that they're continuing in perpetuity. I also wholly support the amendments moved by the member for North Sydney to improve transparency through documentation having to be registered and through definitions. It's important that communities can see the reasoning of the decision-making body and that there's transparency around that—not just a duty to the proponent of an application but also that it states that duty to communities.

I note that further amendments must be made in tranche 3, and we have been promised that those are coming, especially around offsets and like-for-like— (Time expired)

Scott Buchholz (Wright, Liberal Party) Share this | Link to this | Hansard source

Honourable member, you have gone over time. Would you like to continue? Do you seek continuation?

Zali Steggall (Warringah, Independent) Share this | Link to this | Hansard source

Yes, thank you. I welcome the establishment of the EPA to bring independence and rigour to a system that we all acknowledge is broken. There's no doubt about that; we need a strong cop on the beat. But that cop, Environment Protection Australia, will only be able to do what the powers in this legislation and the objects set out in it allow. That's why it's so important for them to be specific and to be included. I should say that this was, as I've said already, in the minister's and the department's own initial consultation process and document. I'm concerned that the minister has lost the opportunity to reach the full potential of the EPA by failing to adopt these and the other amendments proposed by members of the crossbench.

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

I want to thank the member for Warringah for moving these amendments. I know that her constituents place a very high value on the natural environment—they live in a beautiful part of Australia and really want us all to look after our environment better. I also believe that her constituents would very much support the setting up of Australia's first national independent environment protection agency. But we're not going to support these amendments, and I have already outlined some of the reasons for that: they complement some of the amendments that have been moved by other speakers.

This act sets up Environment Protection Australia. On the environmental objectives that the member has asked for—the objectives for the act, as she alluded to—my response to her has already been that these objectives exist in the acts that the Environment Protection Agency administers. I will give an example. In her amendments, the member for Warringah seeks to include an objective that EPA should enhance the protection of Australia's environment and prevent the degradation of Australia's environment. Environment Protection Australia is being set up to administer a number of acts, and just one of them is the Environment Protection and Biodiversity Conservation Act. The objects of this act include:

(a) to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance; and

…   …   …

(c) to promote the conservation of biodiversity; and

(ca) to provide for the protection and conservation of heritage; and

(d) to promote a co-operative approach to the protection and management of the environment involving governments, the community, land-holders and indigenous peoples; and

(e) to assist in the co-operative implementation of Australia's international environmental responsibilities; and

(f) to recognise the role of indigenous people in the conservation and ecologically sustainable use of Australia's biodiversity; and

(g) to promote the use of indigenous peoples' knowledge of biodiversity with the involvement of, and in co-operation with, the owners of the knowledge.

I think that including objects that enhance the protection of Australia's environment when the acts that are being administered by the organisation already provide for the protection of the environment and promote the conservation of biodiversity makes this inclusion redundant.

As I said, the EPA will not just be regulating the Environmental Protection and Biodiversity Conservation Act and approvals under that. It will also, for example, regulate approvals under the Ozone Protection and Synthetic Greenhouse Gas Management Act. Those objectives include more specific things like giving effect to Australia's obligations under the Vienna convention and the Montreal protocol and replacing depleting substances and synthetic greenhouse gases. I'm very happy to continue to work with the crossbench on how the objectives of the Environment Protection and Biodiversity Conservation Act can be meaningfully improved in stage 3 of the reforms. But the purpose of this bill is to set up the agency as an administrative act. We need to do it in a considered and methodical way.

On the issue of the offsets register, this amendment is unnecessary because I've done it already. The member alluded to a review of offsets done by the department. I commissioned that review, and I commissioned that review because I was worried about offsets. I'm hearing the same stuff you are, so I asked the department to look at offsets and to evaluate whether they had been properly delivered. As the member said, in many cases they had not been properly delivered. What I've done is set up a register that anyone can look up online. You can look at the name. You can look at the location of the site. You can find the offset conditions for each project. This is just one of the changes that I've asked for as a result of the review that I commissioned.

We've basically set up a permanent compliance unit to look at offsets, because I've got the same concerns as the concerns that you've raised. We found, as the member said, that one in seven approved projects were potentially noncompliant. Twenty-one of them have already been subject to compliance actions, including either a request to fix their offsets or being issued with an infringement notice.

I want to go in continuation, if that's possible.

Scott Buchholz (Wright, Liberal Party) Share this | Link to this | Hansard source

The minister is seeking a continuation.

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

Thank you. As I said, 21 projects have been subject to compliance actions. Nine infringement notices have been paid already. Three directed variations have been issued.

I just want to reassure the member—who I think is raising very valid concerns about offsets—that now that I've established that register, that we've set up the compliance unit and that we've taken compliance action I believe that means we don't need to change the law here. We need to, as she said herself, make sure that we're putting the law into practice.

Question negatived.

Zoe Daniel (Goldstein, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (4), as circulated in my name, together:

(1) Clause 4, page 3 (line 13), at the end of the clause, add:

The Joint Parliamentary Committee on the Environment is established to monitor the CEO's performance of the CEO's functions, and for related matters.

(2) Clause 5, page 4 (after line 14), after the definition of EPA, insert:

joint committee means the Parliamentary Joint Committee on the Environment established under Part 5A.

joint committee member means a member of the joint committee.

(3) Clause 44, page 23 (after line 25), after subclause (2), insert:

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

(a) the Minister has referred the proposed appointment to the joint committee for approval; and

(b) the joint committee has approved the proposed appointment.

(4) Page 29 (after line 17), after Part 5, insert:

Part 5A — Parliamentary Joint Committee on the Environment

56A Simplified outline of this Part

This Part establishes the Joint Parliamentary Committee on the Environment to monitor the CEO's performance of the CEO's functions, and for related matters.

56B Parliamentary Joint Committee on the Environment

(1) A Committee to be known as the Parliamentary Joint Committee on the Environment is to be established as soon as practicable after the commencement of each Parliament.

(2) The joint committee is to consist of 12 members:

(a) 6 of whom must be members of the Senate appointed by the Senate, and 6 of whom must be members of the House of Representatives appointed by that House; and

(b) 5 of whom must be members of the Government; and

(c) 5 of whom must be members of the Opposition; and

(d) 2 of whom must be members of the Parliament other than members of the Government or Opposition.

(3) The co-Chairs of the joint committee are to be:

(a) the joint committee member nominated as co-Chair by the Prime Minister; and

(b) the joint committee member nominated as co-Chair by the leader of the Opposition.

(4) A member of the Parliament is not eligible for appointment as a joint committee member if the member is:

(a) a Minister; or

(b) the President of the Senate; or

(c) the Speaker of the House of Representatives; or

(d) the Deputy President and Chair of Committees of the Senate or the Deputy Speaker of the House of Representatives.

(5) A joint committee member ceases to hold office:

(a) when the House of Representatives expires by the passing of time or is dissolved; or

(b) if the joint committee member becomes the holder of an office specified in any of the paragraphs of subsection (4); or

(c) if the joint committee member ceases to be a member of the House of the Parliament by which the joint committee member was appointed; or

(d) if the joint committee member resigns the member's office as provided by subsection (6) or (7).

(6) A joint committee member appointed by the Senate may resign the member's office by giving a signed notice to that effect to the President of the Senate.

(7) A joint committee member appointed by the House of Representatives may resign the member's office by giving a signed notice to that effect to the Speaker of that House.

(8) Either House of the Parliament may appoint one of its members to fill a vacancy amongst the members of the joint committee appointed by that House.

56C Powers and proceedings of the joint committee

All matters relating to the powers and proceedings of the joint committee are to be determined by resolution of both Houses of the Parliament.

56D Functions of the joint committee

(1) The functions of the joint committee are as follows:

(a) to monitor the CEO's performance of the CEO's functions;

(b) to report to both Houses of the Parliament, with such comments as it thinks fit, on any matter connected with the performance of the CEO's functions that the joint committee considers should be directed to the attention of the Parliament;

(c) to examine each annual report prepared by the CEO under the Public Governance, Performance and Accountability Act 2013 and report to both Houses of the Parliament on any matter appearing in, or arising out of, any such annual report;

(d) to inquire into any question in connection with the joint committee's functions that is referred to it by either House of the Parliament, and to report to that House on that question;

(e) to consider proposed appointments to the office of CEO (see subsection 44(2A));

(f) to make recommendations to both Houses of the Parliament, the Minister and the CEO on:

(i) draft estimates referred to in section 56E; and

(ii) what proportion of the EPA's budget should be spent on monitoring, compliance, enforcement and assurance;

(g) to conduct reviews and make recommendations under section 56F;

(h) to do anything incidental or conducive to the performance of the above functions.

(2) Subsection (1) does not authorise the joint committee to reconsider the CEO's decisions or recommendations in relation to a particular decision under a Commonwealth environmental law.

56E Estimates

(1) Without limiting section 56D, the joint committee may request the CEO to submit to the joint committee draft estimates for the EPA for a financial year before the Federal Budget for that financial year.

(2) The CEO must comply with the request in time to allow the joint committee to consider the draft estimates and make recommendations on them before the Budget.

56F Review of Commonwealth environmental laws

The joint committee must:

(a) regularly review Commonwealth environmental laws; and

(b) if the joint committee reasonably believes that the purposes of those laws would be better achieved if any functions under those laws were transferred to the CEO—recommend to both Houses of the Parliament and the Minister that the functions be transferred to the CEO.

I am concerned that what the government is asking the House to sign when it comes to the Nature Positive Plan is a blank cheque, and that is what this amendment is designed, in part, to address. I want to impress on the House and Australians taking note of this debate that the government has been made absolutely and explicitly aware of the deficiencies in this legislation. I often bring my concerns about policy directly to the government, and, in certain circumstances, they are responsive to amendments proposed by myself and other members of the crossbench. Indeed, this is what the crossbench has tried to do with amendments to this legislation. I want to be clear that I absolutely believe that we should have a federal EPA, a good one, and my proposed amendment is an incredibly simple measure to improve the integrity and oversight of this proposed law.

The crossbench has had multiple meetings with the minister and her staff on this legislation, and that is welcome and appreciated, but, in every case on nature positive, the government has refused to adapt commonsense changes from the crossbench in a series of amendments. As a result, this bill will likely end up in a quagmire of political disagreement in the Senate, and that will not be good for the social licence that must accompany this bill.

This amendment goes to the oversight and the independence of the EPA. In my view, the government has decided to establish an agency which will operate like any Commonwealth agency rather than an independent authority, and this includes the ability for any future minister to shape its overarching policy direction via a statement of expectations. The project decision-making process, which is currently delegated and processed by the department of the environment, one which the minister can interfere with at any time, will simply be shifted to a new agency—no board, no expert-led appointment process and minimal operational independence. Again, the government has been made aware of this by experts, interest groups, me and others on the crossbench.

To be very clear, I very much respect this minister. I'm not convinced, though, that any future minister will be equally competent. Therefore, the amendment I'm proposing would create a joint parliamentary committee on the environment which, critically, would oversee the ministerially appointed CEO. I believe this is an important step for accountability, but, alas, the government appears wary of the potential consequences of this extra democratic oversight when it comes to environmental protection. I would argue that a committee is a reasonable compromise given that the government will not implement a board to oversee what is not in reality an independent post.

The concept of this amendment has received multipartisan support in recent years and is endorsed by Australia's leading environmental experts. Beyond confirming the minister's appointment of a chief executive, the committee would be empowered to request the CEO to submit draft budget estimates for review in advance of each upcoming federal budget. The CEO's performance would be monitored and reviewed in the interests of best practice environmental public administration. Absent this, absent a joint committee and absent decision-making independence, my concern is that this EPA model is a potential lame duck lacking both autonomy and integrity.

This commonsense amendment would substantially improve the performance and the integrity of this bill, and it is consistent with the principles of the international nature-positive movement. Unfortunately, the government have decided not to adhere to these principles, which are at odds with the concerns that have been raised with them and the urgent threats faced by Australia's environment and, I believe, at odds with the need for a particularly robust EPA. I commend the amendments to the House.

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

I want to thank the member for Goldstein for her amendments. I really do understand her very good intent here. I think all of the amendments come from absolutely the right place and the right instinct. The reason that we're not accepting these amendments is that we believe that Environment Protection Australia should be subject to all of the same forms of oversight and regulation that you would have for equivalent agencies, rather than a separate, new system. It will be subject to Audit Office requirements. It will be subject to budget estimates or review through the existing Senate environment and communications committee. It's able to have inquiries either from that committee or from select and ad hoc committees.

In our system, the power to appoint the CEO should remain with the Governor-General, in our view—obviously, on the recommendation of the government. In Australia we don't have a system where parliamentary committees ratify positions in the way that they do in the United States, for example, where people are grilled by committees before they're approved, and I'm not proposing to change that. I expect there will be a Senate inquiry into this legislation, and I, of course, will consider the recommendations of that Senate inquiry when we come to debating this legislation in the Senate.

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

The question before the House is that the amendments (1) to (4) moved by the honourable member for Goldstein be agreed to.

Andrew Wilkie (Clark, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (15), as circulated in my name, together:

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

(2) Clauses 4 and 5, page 2 (line 18) to page 5 (line 19), omit the clauses, substitute:

4 Simplified outline of this Act

This Act establishes EPA, short for Environment Protection Australia, and provides for the appointment of the CEO of EPA.

The CEO has functions conferred on the CEO by this Act and a number of other laws (including Commonwealth environmental laws) referred to in section 10A. The CEO also has functions of advising and assisting the Minister in relation to any of the Minister's functions and powers under those laws.

The Parliamentary Joint Committee on Environment and Energy is established to monitor the CEO's performance of the CEO's functions, and for related matters.

This Act also contains a regime for the use and disclosure of information obtained under any Act conferring functions on the CEO. There are civil penalties for the use or disclosure of protected information in certain circumstances.

5 Definitions

In this Act:

CEO: see section 10.

civil penalty provision has the same meaning as in the Regulatory Powers Act.

Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013.

Commonwealth environmental law means any of the following:

(a) an environmental law (within the meaning of the Environment Protection and Biodiversity Conservation Act 1999);

(b) the Water Act 2007;

(c) an Act or legislative instrument (other than an Act or instrument specified by the rules for the purposes for this paragraph) that has, as its purpose or one of its purposes, the purpose of protecting the environment;

(d) an Act specified by the rules for the purposes of this paragraph;

(e) a legislative instrument (other than a legislative instrument specified by the rules for the purposes of this paragraph) made under another Commonwealth environmental law.

Commonwealth reserve has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.

conservation zone has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.

Deputy CEO: see section 11.

enforcement body: see subsection 28(2).

entrusted person means:

(a) the CEO; or

(b) a Deputy CEO; or

(c) a member of the staff of EPA; or

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

(e) a person employed or engaged by a person mentioned in paragraph (d) of this definition to assist in, or advise in relation to, the performance of the CEO's functions; or

(f) any other person prescribed by the rules.

environment has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.

environmental justice means justice and accountability in environmental matters, focusing on the respect, protection and fulfilment of environmental rights, including:

(a) the right to a clean, healthy and sustainable environment; and

(b) the promotion of the environmental rule of law.

EPA: see subsection 9(1).

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.

joint committee means the Parliamentary Joint Committee on Environment and Energy (see Part 5).

joint committee member means a member of the joint committee.

matter protected by a provision of Part 3 of the Environment Protection and Biodiversity Conservation Act 1999 has the same meaning as in that Act.

official has the same meaning as in the Public Governance, Performance and Accountability Act 2013.

OMCEA: see subsection 12(1).

paid work means work for financial gain or reward (whether as an employee, a self-employed person or otherwise).

protected information means information of any of the following kinds obtained by an entrusted person:

(a) information the disclosure of which by the entrusted person could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;

(b) information the disclosure of which could reasonably be expected to prejudice the effective working of government;

(c) information the disclosure of which could reasonably be expected to prejudice the prevention, detection, investigation, prosecution or punishment of one or more offences;

(d) information the disclosure of which could reasonably be expected to endanger a person's life or physical safety;

(e) information the disclosure of which could reasonably be expected to prejudice the protection of public safety or the environment.

registrable decision: see section 19.

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.

relevant information means information obtained by an entrusted person under, or in accordance with:

(a) this Act; or

(b) an Act that confers functions on the CEO; or

(c) the Regulatory Powers Act to the extent that it applies in relation to an Act mentioned in paragraph (a) or (b).

rules means rules made under section 62.

senior Deputy CEO: see subsection 10D(2).

staff of EPA means the staff referred to in section 13.

State or Territory government body means:

(a) a Department of State of a State or Territory; or

(b) an agency of a State or Territory; or

(c) an authority of a State or Territory.

(3) Part 2, clauses 8 to 14, page 6 (line 1) to page 9 (line 13), omit the Part, substitute:

Part 2 — Environment Protection Australia

Division 1 — Introduction

8 Simplified outline of this Part

This Part establishes the office of the CEO of EPA. It also establishes EPA for the purposes of assisting the CEO in the performance of the CEO's functions. The CEO is the accountable authority of EPA.

Division 2 — Environment Protection Australia

Subdivision A — Establishment

9 Environment Protection Authority

(1) Environment Protection Australia (EPA) is established by this section.

(2) EPA consists of the following:

(a) the CEO;

(b) the Deputy CEOs;

(c) the staff of EPA;

(d) consultants engaged under section 13A.

(2) The function of EPA is to assist the CEO in the performance of the CEO's functions.

(3) The CEO has the control of the operations of EPA.

(4) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):

(a) EPA is a listed entity; and

(b) the CEO is the accountable authority of EPA; and

(c) the following persons are officials of EPA:

(i) the CEO;

(ii) the Deputy CEOs;

(iii) the staff of EPA;

(iv) consultants engaged under section 13A;

(d) the purposes of EPA include:

(i) the function of EPA referred to in subsection (2) of this section; and

(ii) the functions of the CEO referred to in section 10A; and

(iii) the functions of the OMCEA referred to in section 12.

Subdivision B — Chief Executive Officer

10 Chief Executive Officer

There is to be a Chief Executive Officer (CEO) of EPA.

10A Functions and powers of the CEO

(1) The CEO has the following functions:

(a) the functions conferred on the CEO by this Act or by or under other laws of the Commonwealth;

Note: Other provisions of this Act give the CEO functions involving exercising the routine administrative environmental regulatory functions of the Commonwealth, monitoring compliance with this Act and enforcing this Act.

(b) the following functions relating to communities:

(i) educating communities about the administration of Commonwealth environmental laws;

(ii) to the extent that Commonwealth environmental laws allow for community involvement in the administration of those laws—promoting the take-up of those opportunities;

(iii) increasing public confidence in the administration of Commonwealth environmental laws;

(c) to advise and assist the Minister in relation to the exercise of any powers, or the performance of any functions, of the Minister under laws that confer functions on the CEO;

(d) to make recommendations to the Minister in relation to opportunities to improve regulation under laws that confer functions on the CEO;

(e) any functions conferred on the CEO by rules made for the purposes of this paragraph;

(f) to do anything incidental or conducive to the performance of the above functions.

(2) The CEO has power to do all things necessary or convenient to be done for or in connection with the performance of the CEO's functions.

Note: The CEO may delegate these functions and powers (see section 58).

(3) In performing the CEO's functions, the CEO must act effectively, efficiently, equitably and transparently.

CEO solely responsible for performing the CEO's functions

(4) The Minister must not give directions to the CEO about the performance of the CEO's functions.

(5) If the Minister gives a direction (whether express or implied) to the CEO contrary to subsection (4), the CEO must disregard the direction.

10B Duties of the CEO

In performing the CEO's functions, the CEO has the following duties:

(a) a duty to protect and improve the state of the environment and human health from the harmful effects of pollution, destruction and waste through assessment, enforcement, monitoring, reporting and standard setting;

(b) a duty to promote environmental justice;

(c) a duty to act consistently with the human right to a healthy environment for all;

(d) a duty to implement legislation in accordance with principles of ecologically sustainable development;

(e) a duty to take action to prevent and mitigate greenhouse gas pollution and take all actions necessary to reduce the impacts of climate change.

10C Appointment

(1) The CEO is to be appointed by the Governor-General by written instrument.

Note: The CEO may be reappointed: see section 33AA of the Acts Interpretation Act 1901.

(2) The CEO holds office for the period specified in the instrument of appointment. The period must be 5 years.

(3) The Governor-General must not appoint a person as the CEO unless:

(a) the Minister is satisfied that the person qualifies for the appointment because of the person's knowledge of, or experience in, any of the following:

(i) conservation of biodiversity;

(ii) ecologically sustainable development;

(iii) heritage;

(iv) Indigenous affairs;

(v) law;

(vi) law enforcement;

(vii) natural resource management; and

(b) the Minister has referred the proposed appointment to the joint committee for approval; and

(c) the joint committee has approved the proposed appointment.

(4) The first person appointed as CEO must have knowledge of, or experience in, law enforcement.

(5) The CEO, or at least one of the Deputy CEOs, must be an Indigenous person. This subsection has effect despite Part II of the Racial Discrimination Act 1975.

(6) A person is not eligible to be appointed as CEO if, at any time during the 5 years before the start of the appointment, the person was any of the following:

(a) a member of the Parliament of the Commonwealth, of a State Parliament or of a Legislative Assembly of a Territory;

(b) a person registered under the Commonwealth Electoral Act 1918 as political campaigner;

(c) a person registered as a lobbyist (however described) under a law of a State or Territory or a foreign country;

(d) a senior executive of:

(i) an industry association (however described) in Australia or a foreign country; or

(ii) an environmental organisation covered by section 30-55 of the Income Tax Assessment Act 1997, or a similar environmental organisation in a foreign country; or

(iii) a body corporate regulated by or under an Act referred to in section 10A of this Act.

Note: Under section 29 of the Public Governance, Performance and Accountability Act 2013, and the rules made under that Act, the CEO must, in writing, disclose material personal interests that relate to the affairs of EPA to the Minister.

10D Acting CEO

(1) The senior Deputy CEO acts as the CEO:

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

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

(i) is absent from duty or from Australia; or

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

(2) The senior Deputy CEO is the Deputy CEO who, out of the Deputy CEOs who are:

(a) not absent from duty or from Australia; and

(b) able to perform the duties of their offices;

was appointed first.

10E Other paid work

The CEO must not engage in paid work outside the duties of the CEO's office without the Minister's approval.

10F Remuneration

(1) The CEO 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) The CEO 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 CEO.

Note: The effect of this subsection is that remuneration or allowances of the CEO 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)).

10G Leave of absence

(1) The CEO has the recreation leave entitlements that are determined by the Remuneration Tribunal.

(2) The Minister may grant the CEO leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

10H Resignation

(1) The CEO may resign the CEO'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.

10J Termination of appointment

(1) The Governor-General may terminate the appointment of the CEO:

(a) for misbehaviour; or

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

(2) The Governor-General may terminate the appointment of the CEO if:

(a) the CEO:

(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 CEO's creditors; or

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

(b) the CEO is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(c) the CEO engages, except with the Minister's approval, in paid work outside the duties of the CEO's office (see section 10E).

Note: The appointment of the CEO 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).

10K Disclosure of interests to the Minister

The CEO must give written notice to the Minister of all interests, pecuniary or otherwise, that the CEO has or acquires and that conflict or could conflict with the proper performance of the CEO's functions.

10L Terms and conditions of appointment

The CEO 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 — Deputy Chief Executive Officers

11 Deputy Chief Executive Officers

(1) There are to be 4 Deputy Chief Executive Officers (Deputy CEOs) of EPA.

(2) A Deputy CEO is to be appointed by the Governor-General by written instrument.

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

(3) A Deputy CEO holds office for the period specified in the instrument of appointment. The period must be 5 years.

(4) The Governor-General must not appoint a person as a Deputy CEO unless:

(a) the Minister is satisfied that the person qualifies for the appointment because of the person's knowledge of, or experience in, any of the following:

(i) conservation of biodiversity;

(ii) ecologically sustainable development;

(iii) heritage;

(iv) Indigenous affairs;

(v) law;

(vi) law enforcement;

(vii) natural resource management; and

(b) the Minister has referred the proposed appointment to the joint committee for approval; and

(c) the joint committee has approved the proposed appointment.

(5) At least one of the first 4 Deputy CEOs must have knowledge of, or experience in, law enforcement.

Note: Under subsection 10C(5), the CEO, or at least one of the Deputy CEOs, must be an Indigenous person.

(6) A person is not eligible to be appointed as a Deputy CEO if, at any time during the 5 years before the start of the appointment, the person was any of the following:

(a) a member of the Parliament of the Commonwealth, of a State Parliament or of a Legislative Assembly of a Territory;

(b) a person registered under the Commonwealth Electoral Act 1918 as political campaigner;

(c) a person registered as a lobbyist (however described) under a law of a State or Territory or a foreign country;

(d) a senior executive of:

(i) an industry association (however described) in Australia or a foreign country; or

(ii) an environmental organisation covered by section 30-55 of the Income Tax Assessment Act 1997, or a similar environmental organisation in a foreign country; or

(iii) a body corporate regulated by or under an Act referred to in section 10A of this Act.

11A Acting appointments

The CEO may, by written instrument, appoint an SES employee or acting SES employee in EPA to act as a Deputy CEO:

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

(b) during any period, or during all periods, when a Deputy CEO:

(i) is absent from duty or from Australia; or

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

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

11B Other paid work

A Deputy CEOmust not engage in paid work outside the duties of the Deputy CEO's office without the Minister's approval.

11C Remuneration

(1) A Deputy CEO 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 Deputy CEO 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 Deputy CEO.

Note: The effect of this subsection is that remuneration or allowances of a Deputy CEO 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)).

11D Leave of absence

(1) A Deputy CEO has the recreation leave entitlements that are determined by the Remuneration Tribunal.

(2) The Minister may grant a Deputy CEO leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

11E Resignation

(1) A Deputy CEO may resign the Deputy CEO'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.

11F Termination of appointment

(1) The Governor-General may terminate the appointment of a Deputy CEO:

(a) for misbehaviour; or

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

(2) The Governor-General may terminate the appointment of a Deputy CEO if:

(a) the Deputy CEO:

(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 Deputy CEO's creditors; or

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

(b) the Deputy CEO is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(c) the Deputy CEO engages, except with the Minister's approval, in paid work outside the duties of the Deputy CEO's office (see section 11B);

(d) the Deputy CEO fails, without reasonable excuse, to comply with section 11G.

11G Disclosure of interests to the Minister

A Deputy CEO must give written notice to the Minister of all interests, pecuniary or otherwise, that the Deputy CEO has or acquires and that conflict or could conflict with the proper performance of the Deputy CEO's functions.

11H Terms and conditions of appointment

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

11J Delegation by Deputy CEO

(1) If a Deputy CEO is delegated any of the CEO's functions or powers under section 58, the Deputy CEO may, in writing, sub-delegate that function or power to an SES employee, or acting SES employee, in EPA.

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

(2) In performing a sub-delegated function or exercising a sub-delegated power, the sub-delegate must comply with any written directions of the Deputy CEO.

Subdivision D — Monitoring, compliance, enforcement and assurance

12 Office of Monitoring, Compliance, Enforcement and Assurance

(1) There is to be within EPA an Office of Monitoring, Compliance, Enforcement and Assurance (OMCEA) of EPA.

(2) The OMCEA must include a Deputy CEO.

(3) The OMCEA has the function of assisting the CEO in performing the CEO's functions, to the extent those functions relate to monitoring compliance with, and enforcing, Commonwealth environmental laws.

12A CEO must consult Auditor General

(1) The CEO must consult the Auditor-General in establishing EPA's monitoring, compliance, enforcement and assurance systems.

(2) The Auditor-General must conduct performance audits of EPA's monitoring, compliance, enforcement and assurance systems:

(a) 3 years after the commencement of this section; and

(b) at such times occurring:

(i) after the first audit; and

(ii) before 1 January 2036;

as the Auditor-General considers appropriate, such that no more than 5 years occurs between audits.

12B Monitoring plans

Before the CEO, under a Commonwealth environmental law:

(a) grants an approval, permit, licence or other permission (however described) subject to conditions; or

(b) imposes new conditions on such an approval etc.;

the CEO must develop a plan to monitor compliance with the conditions.

Subdivision E — Staff and consultants

13 Staff

(1) The staff of EPA must be persons engaged under the Public Service Act 1999.

(2) For the purposes of the Public Service Act 1999:

(a) the CEO and the APS employees assisting the CEO together constitute a Statutory Agency; and

(b) the CEO is the Head of that Statutory Agency.

13A Consultants

The CEO may, on behalf of the Commonwealth, engage consultants to assist in the performance of the CEO's functions.

Subdivision F — Miscellaneous

14 Fees

(1) The CEO may charge a fee for the performance of any of the CEO's or EPA's functions.

(2) Subsection (1) does not apply to performing a function:

(a) on the CEO's own initiative; or

(b) if a Commonwealth law other than this Division deals with the charging of fees for the performance of that function.

14A Annual report

The annual report prepared by the CEO and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include details about the action the CEO took during the year to establish and maintain EPA's monitoring, compliance, enforcement and assurance systems, including the following:

(a) any advice the Auditor-General gave to the CEO under subsection 12A(1) during the year;

(b) any action the CEO has taken during the year in response to advice given by the Auditor-General under subsection 12A(1);

(c) if the Auditor-General conducted an audit under subsection 12A(2) during the year—a copy of the Auditor-General's report of the audit.

14B Vacancies to be filled as soon as practicable

If a vacancy occurs in the office of CEO or in an office of Deputy CEO, the Minister and the joint committee must take all reasonable steps to ensure that the vacancy is filled as soon as practicable.

(4) Heading to Part 3, page 10 (line 1), omit the heading, substitute:

Part 3 — Registers

(5) Clause 15, page 10 (lines 4 to 6), omit:

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.

(6) Clause 15, page 10 (line 10), omit "law mentioned in section 13", substitute "law referred to in subsection 10A(1)".

(7) Division 2, clauses 16 and 17, page 11 (line 1) to page 12 (line 1), omit the Division.

(8) Heading to Division 3, page 13 (line 1), omit "Division 3", substitute "Division 2".

(9) Clause 18, page 13 (line 6), omit "law mentioned in section 13", substitute "law referred to in subsection 10A(1)".

(10) Part 5, clauses 43 to 56, page 22 (line 1) to page 29 (line 17), omit the Part, substitute:

Part 5 — Parliamentary Joint committee on Environment and Energy

Division 1 — Introduction

43 Simplified outline of this Part

The Parliamentary Joint Committee on Environment and Energy is established to monitor the CEO's performance of the CEO's functions, and for related matters.

Division 2 — Parliamentary Joint committee on Environment and Energy

44 Parliamentary Joint Committee on Environment and Energy

(1) A Committee to be known as the Parliamentary Joint Committee on Environment and Energy is to be established as soon as practicable after the commencement of each Parliament.

(2) The joint committee is to consist of 12 members:

(a) 6 of whom must be members of the Senate appointed by the Senate, and 6 of whom must be members of the House of Representatives appointed by that House; and

(b) 5 of whom must be members of the Government; and

(c) 5 of whom must be members of the Opposition; and

(d) 2 of whom must be members of the Parliament other than members of the Government or Opposition.

(3) The co-Chairs of the joint committee are to be:

(a) the joint committee member nominated as co-Chair by the Prime Minister; and

(b) the joint committee member nominated as co-Chair by the leader of the Opposition.

(4) A member of the Parliament is not eligible for appointment as a joint committee member if the member is:

(a) a Minister; or

(b) the President of the Senate; or

(c) the Speaker of the House of Representatives; or

(d) the Deputy President and Chair of Committees of the Senate or the Deputy Speaker of the House of Representatives.

(5) A joint committee member ceases to hold office:

(a) when the House of Representatives expires by the passing of time or is dissolved; or

(b) if the joint committee member becomes the holder of an office specified in any of the paragraphs of subsection (4); or

(c) if the joint committee member ceases to be a member of the House of the Parliament by which the joint committee member was appointed; or

(d) if the joint committee member resigns the member's office as provided by subsection (6) or (7).

(6) A joint committee member appointed by the Senate may resign the member's office by giving a signed notice to that effect to the President of the Senate.

(7) A joint committee member appointed by the House of Representatives may resign the member's office by giving a signed notice to that effect to the Speaker of that House.

(8) Either House of the Parliament may appoint one of its members to fill a vacancy amongst the members of the joint committee appointed by that House.

45 Powers and proceedings of the joint committee

All matters relating to the powers and proceedings of the joint committee are to be determined by resolution of both Houses of the Parliament.

46 Functions of the joint committee

(1) The functions of the joint committee are as follows:

(a) to monitor the CEO's performance of the CEO's functions and duties;

(b) to report to both Houses of the Parliament, with such comments as it thinks fit, on any matter connected with the performance of the CEO's functions and duties that the joint committee considers should be directed to the attention of the Parliament;

(c) to examine each annual report prepared by the CEO under the Public Governance, Performance and Accountability Act 2013 and report to both Houses of the Parliament on any matter appearing in, or arising out of, any such annual report;

(d) to inquire into any question in connection with the joint committee's functions that is referred to it by either House of the Parliament, and to report to that House on that question;

(e) to consider proposed appointments to the office of CEO (see subsection 10C(3)) or Deputy CEO (see subsection 11(4));

(f) to make recommendations to both Houses of the Parliament, the Minister and the CEO on:

(i) draft estimates referred to in section 47; and

(ii) what proportion of EPA's budget should be spent on monitoring, compliance, enforcement and assurance;

(g) to conduct reviews and make recommendations under section 48;

(h) to do anything incidental or conducive to the performance of the above functions.

(2) Subsection (1) does not authorise the joint committee to reconsider the CEO's decisions or recommendations in relation to a particular decision under a Commonwealth environmental law.

47 Estimates

(1) Without limiting section 46, the joint committee may request the CEO to submit to the joint committee draft estimates for EPA for a financial year before the Federal Budget for that financial year.

(2) The CEO must comply with the request in time to allow the joint committee to consider the draft estimates and make recommendations on them before the Budget.

48 Review of Commonwealth environmental laws

The joint committee must:

(a) regularly review Commonwealth environmental laws; and

(b) if the joint committee reasonably believes that the purposes of those laws would be better achieved if any functions under those laws were transferred to the CEO—recommend to both Houses of the Parliament and the Minister that the functions be transferred to the CEO.

(11) Clause 58, page 30 (lines 7 and 8), omit "laws mentioned in section 13", substitute "laws referred to in subsection 10A(1)".

(12) Clause 58, page 30 (before line 9), before paragraph (1)(a), insert:

(aa) a Deputy CEO; or

(13) Clause 58, page 30 (line 9), omit "referred to in section 52", substitute "of EPA".

(14) Clause 58, page 30 (lines 10 and 11), omit paragraph (1)(b).

(15) Clause 60, page 32 (lines 4 to 6), omit paragraph (2)(b).

Let me start by saying that standing up a federal environment protection agency is a good thing. In fact, in 2021 I introduced legislation in the parliament to do just that. A well-designed and resourced independent and accountable EPA that can give expert advice and act as a tough cop on the beat could be a game changer to ensure accountability and compliance with our national environmental laws, to re-establish community trust and, most importantly, to protect our natural environment. But, sadly, that is not what this bill gives us. Instead of establishing an independent EPA, this bill establishes the shell of an agency initially located within the Department of Climate Change, Energy, the Environment and Water itself. How is that independent? How can the community have confidence in an EPA when it is being administered by departments and, by extension, governments who, on both sides, have a terrible track record of protecting our environment?

Moreover, while a statement of expectations will be provided by the minister, the government's EPA has no legislated guiding principles, duties or objectives to ensure it will be focused on protecting the environment. The CEO would be appointed by the minister with no real oversight, and the minister will retain the power to call in any decision they choose, taking it out of the CEO's hands for any reason. In these circumstances there's clearly no guarantee the EPA will be the frank and fearless regulator this country so desperately needs.

Instead of establishing a transparent, accountable EPA with an independent board, or at least a parliamentary committee providing oversight and advice to the organisation, the bill provides for a sneaky, secretive advisory committee, appointed by the CEO, whose members were chosen for reasons we may never know and which will provide advice—the content of which we may never know and the effect of which on decisions we may never know. It's clear Australians are sick of this stuff. Indeed the outcome of the last election, which saw a record number of Australians deserting the major parties in favour of independents and smaller parties, proves as much. Clearly the community is crying out for transparency and accountability, including in environmental law, and this government is failing to deliver.

All of this is why I'm introducing these comprehensive amendments based on my 2021 bill, which would establish a truly independent, strong and transparent EPA—an agency that depoliticises, streamlines and strengthens environmental regulation. Importantly, it will be structurally independent from the Department of Climate Change, Energy, the Environment and Water—a fact which will bolster community confidence in the processes that are supposed to protect and conserve our natural environment. These amendments will also ensure the EPA can effectively and transparently exercise the administrative functions currently held by the Commonwealth concerning the EPBC Act. This includes issuing approvals, granting permits, auditing environmental impact assessments and monitoring post-approval impacts. This will ensure the EPA has the power to undertake both systemic and individual investigations into applications, environmental impact statements or any other documents received in support of an application. Moreover, the EPA will have the power to terminate an approval or issue a stop-work order in circumstances where serious and environmental harm has been caused or is imminent.

Importantly, my changes ensure the EPA will be headed by an appropriately qualified CEO who is independently appointed for a fixed term and supported and overseen by a newly established joint committee on the environment and energy. To avoid even a perception of bias, senior staff will be prevented from having any potential conflicts of interest, including employment as a politician or a lobbyist in the five years preceding appointment to the EPA. Surely, at a time when we're seeing the imminent collapse of precious ecosystems, when Australia is a hotspot for extinction and deforestation and when we're already facing unprecedented threats from climate change, a strong independent regulator is more important than ever.

To close, I note that we mustn't forget that we also need a renewed sense of urgency from the government in the important task reforming the EPBC Act so that the EPA has better environmental laws to enforce. The decision to split the long-overdue environmental reforms was deeply disappointing and leaves many Australians with a sense that the government may be fiddling while our earth burns. I urge my colleagues to support these amendments and back a strong, transparent and independent EPA.

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

I want to thank the member for Clark for moving these amendments. I know that he has a very long and distinguished record of arguing for greater transparency and accountability in the administration of our responsibilities as a government, and I truly respect where he comes from in moving these amendments. I won't be supporting them today. I won't go into all of the details, because I think I've probably covered some of the issues in my remarks to other crossbench members who have moved amendments.

Again I would remind the member that the objects of the acts that the EPA administers are very clear: they are the expectations of improving the environment and protecting biodiversity, as well as the statement of expectations that the minister sets for the EPA. Every decision is published, and statements of reasons are available on request, so there are additional transparency measures available. Some of the issues that the member has raised are actually quite complex, technically, particularly in terms of how they relate to transitional arrangements. We are happy to continue to work with the member for Clark, through the Senate inquiry processes and beyond, to see whether there are additional areas where we can improve the arrangements; however, we will not be supporting these amendments.

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

The question before the House is that the amendments (1) to (15) moved by the honourable member for Clark be agreed to.