The Business Council of Australia’s (BCA) membership includes more than 120 chief executives from leading companies across the Australian economy. 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.
For the EPBC Act reforms to ultimately be judged as successful, they will need to deliver measurable improvement in environmental outcomes, working towards the goal of halting and reversing environmental decline, while supporting the efficient delivery of ecologically sustainable development.
We appreciate the opportunity to provide feedback on the draft Standard on Matters of National Environmental Significance (MNES). The BCA will separately provide submissions on the other items open for consultation in parallel. The Standards will operate as a package of documents, and there is a clear need for cross reference between them. We note however that the full package of Standards is not available at the time of preparing this submission, limiting the quality of feedback that may be provided.
Key recommendations
Recommendation 1
- The Standard must be written in a way that allows for its practical implementation as part of the decision making and approval process. The new drafting, which makes clear that if the principles are satisfied the Standard can be deemed by the decision maker as being satisfied, addresses this issue. Other amendments to the Outcomes and Objectives would further improve clarity for proponents and assessors.
Recommendation 2
- Objectives and Outcomes should be updated to better link back to the EPBC Act. This includes updating references to ‘protection from significant impacts’ and amending references to ‘human health’ so they are in line with the Objectives of the EPBC Act itself (i.e. the protection of the environment), rather than covering aspects that are regulated elsewhere.
Recommendation 3
- Update Section 7, clause 4(c) to recognise when applying the mitigation hierarchy (Section 8) that a NOPSEMA framework cannot allow for a residual significant impact, and therefore only clauses 1 through 6 of the mitigation hierarchy apply (steps 1 through 3 avoidance, mitigation, and repair, but not step 4 offset).
Recommendation 4
- The references to ‘possible’ throughout Principle 1 (the mitigation hierarchy) should be replaced with ‘reasonably practicable’, a term that has an understood legal definition from management of work health and safety risk. Other subjective terms should be considered for clarification or addressed with further detail.
Recommendation 5
- Provide clearer guidance and clarifying examples, together with consideration of state and territory implementation of repair and rehabilitation, to provide clarity on the kinds of impacts that are considered subject to the repair obligation under the mitigation hierarchy.
Recommendation 6
- In terms of Principle 2, ‘reasonably foreseeable future actions’ that relate to third-party projects should be limited to actions in respect of which an assessment of environmental impacts has been published, and should be focused on significant adverse impacts. Administrative guidance will be required on how other reasonably foreseeable future events and circumstances should be identified, including in relation to the impacts of climate change, what the criteria for ‘reasonable foreseeable’ is, what the scope is that proponents should be considering, and what level of confidence is required for something to be incorporated or considered by the proponent and assessor.
Recommendation 7
- Principles 2, 3 and 4 should be reviewed to remove duplication and where appropriate recognise other Standards rather than duplicate their content in an abridged way, so that there is built in consistency across the package as a whole. For the avoidance of doubt, the BCA supports the substantive outcomes of these principles, and does not intend for these to be deferred or diluted by virtue of this recommendation.
Recommendation 8
- Incorporate ecologically sustainable development into the principles of the Standard, reflecting its importance in the overall Act.
Recommendation 9
- Ensure that definitions for important terms are provided and linked back to the Act or to scientifically defined terms.
Read our full submission here.
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