Appendix B3 - Recommended National Environmental Standard for Compliance and Enforcement

Environmental Outcome

The EPBC Act requirements, and those under accredited arrangements, are complied with and enforced so that matters covered by the EPBC Act are protected.

Decisions demonstrate integrity, consistency and transparency to foster public trust in compliance and enforcement activities.

National Standard

1. Compliance and enforcement functions must have robust governance arrangements that ensure:
   1. independence from actual, perceived or implied political influence,
   2. risk focused prioritisation of activities towards achievement of the objects of the Act and the National Environmental Standards,
   3. management of conflict(s) of interest, including avenues for the public to raise concerns and for those concerns to be transparently responded to,
   4. compliance and enforcement is proportionate to the seriousness of identified non-compliance,
   5. the level of compliance effort provides adequate certainty of breaches being detected and acted upon to achieve an effective deterrent against non-compliance,
   6. adequate resourcing for efficient and effective operation of the elements of this National Environmental Standard, and
   7. adequate training of staff on the requirements of the EPBC Act and accredited arrangements associated with compliance and enforcement.
2. Compliance and enforcement functions must be supported by legislation, legal capability and capacity that ensures:
   1. a comprehensive suite of legal powers and penalties that at a minimum align with the EPBC Act, and provide assurance that this National Environmental Standard is being met,
   2. an ability to intervene before potential environmental harm occurs and respond to potential or actual harm in a timely manner,
   3. information sharing of the compliance and enforcement activities with any Commonwealth oversight functions, and
   4. there is adequate resourcing for litigation to ensure legal enforcement actions are not constrained.
3. Compliance and enforcement functions must have the following monitoring, intelligence and analytical capabilities:
   1. surveillance and investigation systems that can detect and respond to potential non-compliance across the jurisdiction,
   2. on-the-ground, remote sensing and electronic communications surveillance options to detect non-compliance where necessary,
   3. a risk-based focus toward both current and future risks to non-compliance,
   4. clear avenues for public reporting of potential non-compliance and processes to ensure public reports are responded to in a timely manner, and
   5. collaborative arrangements with other agencies to gather intelligence, where appropriate, and with adequate consideration of relevant laws, implied duties of confidence and avoiding prejudice to persons being investigated for offences.
4. Compliance and enforcement functions must have the following investigations and decision-making capabilities:
   1. risk-based procedures for escalation and actions, focused on activities with the highest risk of non-compliance or environmental harm,   
   2. mechanism(s) to ensure that similar cases, or those that result in cumulative harm, be managed in a consistent manner commensurate with the environmental risk to matters protected under the EPBC Act and potential benefit gained from non-compliance,
   3. for minor non-compliance, have regard to an individual’s or organisation’s willingness to return to compliance and their specific circumstances,
   4. internal tracking and record keeping of investigations and decision-making, and
   5. meet published timeframes for resolution of investigations and decision-making.
5. Compliance and enforcement functions must have escalation procedures for serious non-compliance that include clear and viable paths to enforcement, including:
   1. the use of administrative actions, civil procedures and criminal prosecutions, and
   2. ensuring remediation orders that repair environmental damage are used when monetary penalties are unlikely to provide adequate disincentive.
6. Compliance and enforcement functions must have complaint resolution capability and capacity that:
   1. enables timely escalation and resolution of private and third party complaints about compliance and enforcement activities. This includes avenues to escalate to the relevant Commonwealth oversight functions, and
   2. provides clear avenues for legal review equivalent to those for applicable compliance and enforcement decisions under the EPBC Act.
7. Compliance and enforcement functions must have transparency, communication and accountability systems that ensure:
   1. published materials clearly explain compliance obligations to support voluntary compliance,
   2. transparency and accountability are consistent with the Commonwealth’s confidentiality and information handling requirements under relevant legislation, such as the Privacy Act 1988 (Cth),
   3. up-to-date public registers of resolved potential compliance and enforcement actions, and
   4. an ability for the public to request information through clear policies and published processes.
8. Compliance and enforcement functions must support collaboration including:
   1. data-sharing relationships with relevant organisations where appropriate within the restrictions of relevant laws, and
   2. processes for escalation to relevant Commonwealth oversight functions in cases where a systemic risk to matters protected under the EPBC Act is identified that is unable to be resolved by the Commonwealth or accredited party in a timely manner.

Monitoring and Reporting

1. Accurate and complete monitoring and compliance records must be maintained, provided annually to the Commonwealth except where otherwise agreed, and provided upon request to any relevant Commonwealth oversight functions.
2. Publish release an annual report outlining performance against all the elements of this National Environmental Standard and priorities for the following year.
3. Maintain an up-to-date public compliance register showing activities and outcomes of decisions taken.

Review

This National Environmental Standard should be reviewed and updated regularly, including when there are substantive changes to the EPBC Act or relevant administrative arrangements, or major events that may impact the status of protected matters.

Further information

Privacy Act 1988

Regulatory Powers (Standard Provisions) Act 2014

OECD Best Practice Principles for Regulatory Policy 2014

OECD Regulatory Enforcement and Inspections Toolkit 2018