The Business Council of Australia’s (BCA) membership includes more than 120 chief executive officers of Australia’s most impactful companies. We have been engaged with government and stakeholders on the reform of the Environment Protection and Biodiversity Conservation (EPBC) Act since prior to the Samuel Review in 2020. Our membership includes companies directly engaged in EPBC Act assessments and approvals, including in the mining and resources, energy, property, infrastructure, and legal sectors. More broadly, our members also have a strong interest in achieving positive environmental outcomes for the nation, including through policy settings that are durable, credible, and capable of maintaining community confidence.
To deliver projects that live up to the expectations of ecologically sustainable developments, project proponents must adequately consider local expertise and knowledge, informing environmental impacts and protection needs, as well as the economic and social implications of a project. To that end, there must be robust and high-quality consultation, which genuinely engages with the community, focused on a place-based approach that recognises and considers local viewpoints.
We appreciate the opportunity to provide feedback on the draft National Environmental Standard for Community Engagement. It is worth noting however that this Standard largely does not incorporate specific engagement approaches tailored to Australia’s Indigenous groups. First Nation’s rights holders bring unique cultural, environmental, and economic interests which will need to be considered in project development and decision-making. The BCA understands that this has not been specifically included in this Standard given a separate First Nations Engagement Standard is being developed. Ideally, both of these Standards would have been considered together as part of the consultation.
Key recommendations
Recommendation 1
- There should be clarity on which decisions or community consultations the Community Engagement Standard applies, so that proponents and decision makers understand the requirements they must meet. Where the Standard does not apply, but consultation is still expected or required, it need to be clear that this is the case, and what the consultation expectations are in those circumstances.
Recommendation 2
- Recognise state and territory consultation processes for the same project, and work with states and territories to ensure there are not conflicting requirements.
Recommendation 3
- Provide guidance on identifying affected persons, including details around geographic proximity expectations (including appropriate downstream and cumulative impacts). This will need to tie into requirements in the First Nations Engagement Standard, given the need to engage fulsomely with groups that can speak on impacts to Country and native title.
Recommendation 4
- Alignment of the Community Engagement Standard with the Data and Information Standard and the First Nations Engagement Standard is essential.
Recommendation 5
- Recognise that community engagement can be used to influence not only project design, but also things like mitigation, approval conditions, assessment considerations, monitoring and adaptive management, and design of how economic opportunities are distributed, as well as input local knowledge. Reframe requirements around ‘level of influence’ of the public to better express what is being sought, and to recognise that input that will lead to change in design is not always practical (which importantly, does not mean that community consultation does not inform other aspects of the decision-making process).
Recommendation 6
- Provide a mechanism for proponents to confirm the ‘reasonable’ length of a consultation program upfront. Clarify that the minimum 10 business days only applies to the initial consultation period, and is not reset by additional consultation further into the process. Guidance for proponents should recognise that consultation timeframes should be proportionate to project complexity, likely impacts, accessibility needs, and also consider timeframe requirements that may be determined under the First Nations Engagement Standard.
Recommendation 7
- Update the text around regular assessment of the engagement plan to address specifically what is being required of the proponent (and what a decision maker is assessing). Provide guidance around when changes to engagement plans are expected, including when to consider stakeholder requests for changes.
Recommendation 8
- Proposal documentation should be accurate, balanced, accessible, and sufficient to support informed participation. However, there is a need to reconsider the language in the Standard around requirements for proposal documentation that asks for subjective judgement to be made. Additionally, the requirement to provide monitoring results during the consultation process should be amended to recognise that, by their nature, these may not be available until after a project is underway, and instead providing the proposed monitoring plan may, at the pre-approval stage, be a more appropriate.
Recommendation 9
- Update the response requirement in Principle 2 to address potential misuse of the Standard. This includes clarifying that the obligation to respond promptly to community queries does not require proponents to respond individually to repetitive, excessive, abusive, deliberately vexatious or otherwise unreasonable communications, provided proponents have appropriate processes in place to address relevant issues and support meaningful community engagement.
Recommendation 10
- Clarify the consultation summary report requirements and confirm that the report should be published to promote transparency and demonstrate how community feedback has been considered. The intersection between this reporting requirement and any in the First Nation’s Standard should also be considered.
Recommendation 11
- The privacy requirements should be appropriately caveated to recognise that the proponent may not have full control of information and data provided to it, particularly once submitted to government processes.
Recommendation 12
- The ability for a stakeholder to withdraw data or information after its provision at any time undermines the ability for a proponent to rely on what has been provided. Clarify the right to withdraw so that individuals may withdraw from future engagement and request limits on future use of personal information, while recognising legitimate reliance on information already provided where it has informed statutory processes.
Recommendation 13
- Clarify informed consent requirements so participants understand how information will be used, disclosed and relied upon. Where a participant does not provide consent to a particular use of information, proponents should seek to resolve concerns, and offer alternative engagement pathways where reasonable. Ultimately, the requirement for establishing informed consent should be matched with the acknowledgement that it is reasonable for a proponent to no longer engage with a stakeholder that refuses to provide that consent.
Recommendation 14
- Reconsider the requirement to avoid duplicating data, noting that this should be limited to legitimate purposes, and subject to appropriate safeguards.
Recommendation 15
- Guidance on reasonable requirements for the translation, interpretation, and culturally appropriate communication of materials into other languages should be provided to clarify what is expected of proponents.
Recommendation 16
- The ‘interested persons’ referred to in Principle 4 should be replaced with ‘affected persons’ as defined at the start of the Standard.
Recommendation 17
- The plain English requirements should be appropriately caveated to recognise there may be unavoidable instances where technical language will need to be used, including in environment impact documentation for assessment. Plain English is a subjective term that a proponent should follow to their best endeavours and within reason, reflecting the context of the particular document.
Recommendation 18
- The expectations for who proponents must engage with should be drafted in a way that recognises it is not guaranteed that a proponent will be able to identify every stakeholder, and that some affected stakeholders may choose not to engage. Instead, reasonable efforts should be required to be made to identify and engage affected communities and under-represented groups.
Recommendation 19
- Guidance should be provided to support what is meant by ‘areas with low internet connectivity’, along with alternative engagement methods.
View our full submission here.
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