Appendix 1 - Prototype National Environmental Standard for Matters of National Environmental Significance
The EPBC Act Review Interim Report proposes the development of a suite of National Environmental Standards as a key foundation of fundamental reform of national environmental law. The proposed National Environmental Standards serve two fundamental purposes. Strong, clear and nationally consistent Standards will improve outcomes for Australia’s biodiversity and heritage, and ensure development is sustainable over the long-term. Improved certainty for all stakeholders will lead to a more efficient, accessible and transparent regulatory system, reducing assessment time frames and supporting devolution where appropriate.
The Review proposes that the suite of National Environmental Standards should set the requirements for decision-making to deliver outcomes for the environment, and clearly define the fundamental processes that ensure sound and effective decision-making. As a starting point, the Review proposes that the suite of National Environmental Standards should include requirements relating to:
- ecologically sustainable development
- matters of national environmental significance (MNES)
- transparent processes and robust decisions, including:
- judicial review
- community consultation
- adequate assessment of impact, including climate impacts on MNES
- emissions-profile disclosure
- Indigenous engagement and involvement in environmental decision-making
- monitoring, compliance and enforcement
- data and information
- environmental monitoring and evaluation of outcomes
- restoration and recovery
- wildlife permits and trade.
The suite of National Environmental Standards are intended to interact and relate to each other, and together ensure that the objects of the EPBC Act are achieved.
The prototype Standard provided here is a starting point for developing a National Environmental Standard for MNES. Further work, including consultation with experts and stakeholders, is needed to ensure the Standard addresses key threats to MNES and strikes the right balance to enable ecologically sustainable development. The prototype is based on key principles such as prevention of environmental harm and non-regression, and has been developed using existing policies, commitments and requirements of Commonwealth law134. The Standards are set at a level that enables the Commonwealth to achieve the objects of the EPBC Act, meet international commitments, and deliver national environmental outcomes.
The Review proposes that National Environmental Standards should be developed in a two-stage process. Interim Standards are recommended as a first step, to facilitate rapid reform and streamlining. Interim Standards will need to be capable of being implemented with the currently accessible data and information. These Interim Standards would enable the implementation of many of the reforms proposed by the Review but should be seen as an interim stage only. As more sophisticated data and information becomes accessible, as proposed in the Review, Standards should evolve into more specific and granular measures. Standards should continue to evolve to take account of changing circumstances and governments’ response to these.
The prototype Standard set out includes overarching standards that relate to all MNES and matter specific standards. These elements should be read together, and in conjunction with the existing requirements of the EPBC Act.
A prototype Standard has not been developed for the ‘water trigger’. The EPBC Act currently prevents approval decisions related to this MNES from being devolved to states or territories135. Any decision to remove this restriction should be accompanied by the development of a Standard for the protection of water resources.
Ultimately, the Review proposes the EPBC Act be amended to define the process for making and implementing National Environmental Standards. These amendments should include a requirement that the Standards be applied unless the decision-maker can demonstrate that the public interest and the national interest is best served otherwise.
 Environmental outcomes and standards have been drawn from existing EPBC Act policy documents, including: Department of the Environment 2014. Standards for Accreditation of Environmental Approvals under the Environment Protection and Biodiversity Conservation Act 1999 , intergovernmental agreements including the Intergovernmental Agreement on the Environment 1992, and international commitments and treaties.