MCA Comments on the Proposed Amendment Bill
Is the Amendment Warranted?

The removal of the option to enter into approval bilateral agreements is a significant change to the potential functionality of the EPBC Act and diverges from the regulatory simplification reform agenda which has been underway since 2009. Given the significance of the proposed change, there is little to no explanation of the purpose of the change indicated with the Amendment Bill or the accompanying Explanatory Memorandum. More specifically, there is no explanation of 'the problem' the Amendment is intended to solve. The MCA therefore considers the proposed Amendment appears contrary to the COAG principles of best practice regulation (Principle 1: establishing a case for action before addressing a problem).

As detailed below, potential issues associated with the development of approval bilateral agreements have already been well identified as part of the broader reform process. Remedies to address these concerns are also at an advanced stage. Accordingly, the MCA considers the proposed amendment is completely unnecessary given the existing reforms which are aimed at addressing the same concerns, without loss of flexibility within the Act.

Need for Effective and Efficient Regulation

Effective regulation is essential for achieving the objectives of a modern state. Regulation can be pro-competitive and advantageous to the community in ways that promote growth in productivity and living standards. Good regulation is also important to protect heritage, biodiversity and other environmental values.

Regulatory 'burden' occurs where ineffective, inefficient regulation relative to minimum effective regulation increases the compliance costs to industry for no appreciable environmental gain. These costs represent a loss to the affected industry, the community and the economy as a whole.

The Australian Government recognises the need for effective regulation and this is reflected in its strong commitment to microeconomic reform including a better regulation and red tape reduction agenda1. This agenda is supported by the MCA.

COAG Commitments

The Council of Australian Governments (COAG) has long agreed with the need to ensure that regulatory processes are consistent with the Principles of Best Practice Regulation. Two relevant 'features of good regulation' as defined by COAG include 2:

  • Performance based regulations: Regulatory instruments should be performance based (focussed on outcomes and not inputs). There should be no restrictions on the use of standards as long as the objectives of the regulation are met.
  • Compliance Strategies and enforcement: The regulatory burden can be reduced if the public (proponent) is required to undertake a minimum level of interaction with Government. This can be achieved through mutual recognition of approval processes within Government as well as between Governments.

The development of bilateral arrangements for assessment and approval, supported by robust accreditation standards is consistent with the above features for good regulation and the regulatory reform agenda more generally.

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