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Chapter 2 - Streamlining of Approvals Processes
Current law
2.1
The creation and implementation of the Environment Protection and
Biodiversity Conservation Act 1999 has worked towards ensuring a focus on
the protection of matters of national environmental significance by Australian
Government interests, while at the same time ensuring that the States and
Territories have retained responsibility for matters of state and local
significance.
2.2
The regulations introduced by the Act have been successful in providing
for a higher level of protection for the environment than was previously the
case, while at the same time providing for timely, transparent and efficient
development approvals processes.[1]
2.3
However, in the six years since the original legislation was enacted, it
has become apparent that this legislation needs to be amended to make it more
practical when it comes to approvals and related processes to allow for more
efficient administration of the Act.
Rationale for change
2.4
Since coming into effect, it has been recognised that the Environment
Protection and Biodiversity Conservation Act 1999 (the Act) needs to be
improved, particularly for those making applications or nominations under the
Act.[2]
2.5
Operational improvements can be achieved by reducing processing times and
the number of decision points affecting the environmental assessment and
approval of proposed developments by using more strategic approaches and by
providing greater incentive for development interests, the states, territories,
and local government, to engage with the Act earlier in their planning cycles.[3]
2.6
The amendments propose to allow for faster approvals to occur by
allowing the examination of preliminary proposals for development and making a
preliminary assessment on that basis.
2.7
The bill introduces more incentives for proponents of development
actions to engage earlier in the planning process, through the implementation
of bioregional plans that will allow for over-arching strategic assessments.
2.8
Once the provisions of the bill take effect, the Commonwealth will set
plans that will allow for the routine approval of developments by the states
and territories. This mechanism proposes to free up the Commonwealth from
having to approve those development proposals that can be managed at a state
and/or territory level through bilateral agreements.
Changes proposed by the bill
2.9
The bill proposes to make changes to a number of areas where the
existing Act has been shown to be inadequate in its practical application in
the approvals process.
2.10
One significant aspect of the bill is the move towards reduced
processing times for development approvals that will also result in reducing
costs for development interests. This will assist with the removal of 'red
tape' within the existing Act, while still working to ensure positive
environmental outcomes.[4]
2.11
The bill proposes to allow the Commonwealth to adopt new or strengthen
existing bioregional plans by way of bilateral agreements with the states and
territories. This will allow for the routine approval of some developments
without the need to seek Commonwealth approval, thus giving the states and territories
more control over the process and also reducing approval times for proponents
of developments expected to comply with the Act.
2.12
This reduction in duplicative processes will be made possible through
improved co-operation between the states and territories and the Commonwealth
in the form of stronger bilateral agreements than currently exist, and through
the accreditation of state and territory authorisation processes, and legally
binding management arrangements as outlined below.
2.13
The insertion of division 3 of part 4 into the Act amends existing
legislation to provide an incentive to have certain proposed actions considered
within the context of bioregional plans. If an action is proposed to be taken
within the context of a bioregional plan then these actions do not require
individual approval under the Act, as long as the Minister is satisfied that
the taking of the action or actions will not have unacceptable or unsustainable
environmental impacts.[5]
2.14
Currently under the Act, bilateral agreements between the Commonwealth
and states and territories last five years. Under the new provisions of the
bill these agreements will now continue unless revoked, to cater for longer-term
development projects and proposals.[6]
2.15
This is reflected in an amendment to section 65 of the Act which
provides for a bilateral agreement to have effect for a period specified in the
agreement, rather than ceasing to have effect after 5 years, leading to increased
certainty, especially for larger scale developments that may be operating for
periods longer than 5 years at a time.[7]
2.16
In addition, development approval processing times have essentially been
reduced by removing the need for proponents to provide the Minister with
preliminary information prior to a decision on assessment approach being made.[8]
2.17
In order to allow for this, the bill repeals section 86 of the Act,
removing the need for proponents to provide preliminary information if the
action is deemed to be a controlled action under section 75 of the Act. As the
explanatory memorandum outlines, preliminary information provided by a
developer of a project duplicated information that was already provided for in
referral documents, adding unnecessary red tape to the approvals process.[9]
2.18
A new section 95 has been proposed in the bill that contributes towards
a reduced timeframe for assessment by allowing proponents to provide adequate
information for assessment at the time of referral, in effect reducing the
amount of administration required under the existing Act.[10]
This provides developers with the incentive to engage earlier in planning
processes.
2.19
Once the bill becomes law, it will also be possible for the courts to
seek financial surety for damages if court injunctions are sought against
developers of proponents of actions for breaches of the Act. This will work
towards ensuring the elimination of vexatious injunctions by third parties.
2.20
This is made possible through the repeal of section 478 of the existing
Act which effectively removes the 'no undertakings as to damages' provision.
Environmental safeguards
2.21
The bill amends section 53 of the Act to require the Minister to have
regard for approved conservation advice relating to a listed threatened species
or a listed threatened ecological community when entering into a bilateral
agreement with the states and territories.[11]
2.22
An amendment to section 72 of the Act by inserting a new subsection
72(3) allows for a number of alternative proposals to be submitted for consideration
for a proposed action. The motivation for this is to not only allow for greater
flexibility in the planning stages of a proposed action, but to facilitate
better environmental outcomes by allowing the relative impacts of the different
proposals to be taken into consideration.[12]
2.23
The bill also provides for increased transparency of the development
approvals process. The amendment of sections 104 and 105 of the Act will
require that the proponent of any proposed action finalise and publish an Environmental
Impact Statement that contains a summary of public comments received during the
consultation on the draft report.[13]
2.24
Another measure which encourages better environmental outcomes is an
amendment to section 134 of the Act, which allows the Minister to attach
conditions to Part 9 approvals, requiring specific activities to be undertaken
for protecting, repairing, or mitigating damage to, a matter protected under part
3 of the Act; or, requiring a specified financial contribution to support such
activities.[14]
2.25
These amendments allow for broadened conditions to be attached to
developments such as voluntary compensatory actions and financial contributions
to offset developmental impacts where these impacts are unavoidable.[15]
2.26
A new subsection 144(2A) provides the Minister with the ability to
suspend an approval in reasonable circumstances, for example the Minister may
suspend an approval to ensure that a development activity does not occur during
a time of year that may be damaging to a threatened species.[16]
Comments and concerns
2.27
A number of organisations welcomed the majority of changes proposed by
the amendments, arguing that these changes would give more certainty to
existing provisions and streamline the efficiency of approvals, referrals,
assessment and administrative processes to protect matters of national
environmental significance, while reinforcing a commitment to sustainable
development.[17]
2.28
As stated by the Chamber of Minerals and Energy WA in their submission
to the inquiry:
CME does not advocate for lower standards of
environmental protection measures but rather promotes improvements to the
efficiency and co-ordination of legislation within and between jurisdictions.
CME thus supports the majority of proposed amendments improving the efficiency
of EPBC Act such as the proposed changes to assessment and approval provisions.[18]
2.29
Other witnesses to the inquiry, including the Minerals Council of
Australia, welcomed and supported as follows:
The establishment of processes for rapid decisions on
straightforward proposals;
Clarification of what constitutes an indirect impact, with a
project now needing to be the “substantial cause” or to “facilitate in a major
way” any indirect impacts before these become a relevant consideration;
Greater flexibility to change proposals during the assessment
and approval process;
Increased capacity to rely on conditions of approval imposed by
other Ministers (including State/Territory Ministers); and
Formal processes for consulting with proponents in advance of
approval decisions.[19]
2.30
The Minerals Council of Australia in their appearance at the committee
hearings stressed the importance of environmental protection measures in
conjunction with the streamlining efforts, as this would give more certainty to
council members who were proponents of development actions that they were doing
the right thing by the community thereby reinforcing their commitment to
sustainable activities.[20]
2.31
The Property Council also highlighted their recognition and support for
best practice in environmental policy for Australia. As they stated in their
submission to the inquiry, they support and advocate best practice in
environmental policy for Australia, and said that:
The Property Council views the amendments as generally
worthwhile in improving the efficiency of the administration of the Act and as
a step towards providing greater certainty of process.[21]
2.32
As the Law Council of Australia argued in their submission, the
provisions provide enhanced ability to deal with large-scale projects and give
priority attention to projects of national importance through the use of
strategic assessment and approval approaches, and put in place measures to assist
developers to avoid impacts on matters of national environment significance
protected by the Act.[22]
2.33
During the committee hearings the Law Council also pointed out, in
regards to the adequacy of the existing legislation in relation to planning
approvals:
My understanding is that most of the time it has been
referred to the states for assessment first and then it comes back to the
Commonwealth government. It is a tortuous process because it is lengthy. If you
are putting in a development of any sort, your time constraints are always
important, so the more streamlined we can have any legislation the more likely
we are to get a sensible result for everybody.[23]
2.34
In addition to general support for the streamlining provisions of the
bill, there were a number of witnesses to the inquiry who raised concerns about
the proposed amendments to the Act, arguing that the changes would be a backward
step for environmental protection rather than an improvement. Some raised
concerns that the streamlining of approvals processes and the move towards
stronger bilateral arrangements with the states and territories would weaken
environmental protection from developers under the bill as there would be less
scrutiny of individual projects. The Australian Council of National Trusts
pointed out:
The expanded use of management policies and plans and
bioregional plans will reduce the amount of scrutiny which proposals will be
subjected to.[24]
2.35
In a review of the existing Act, The Australia Institute pointed out
that between July 2000 and July 2006 approximately 149 development proposals
were approved, and only four refused under part 9 of the Act. In effect this
meant that the environment approval and assessment (EEA) regime had only
prevented four development proposals from going ahead since the regime began
operating six years ago.[25]
2.36
This concern was also raised by The Australia Institute during the
committee hearings as substantiation that the current approvals regime was not
tough enough, and that any streamlining of the system would in effect make it
even easier for development approvals to be carried through successfully
without rigorous environmental assessment.[26]
2.37
Others, such as the Minerals Council of Australia, argued that:
We have concerns that in some jurisdictions there are
not bilateral agreements in place; hence we have two layers of approvals and
two layers of assessment, which can delay projects and does not actually lead
to any greater level of environmental protection from those projects.[27]
2.38
This concern has largely been addressed in the bill, as under the
amendments proposed by the bill, state and territory governments will be
required to have significantly improved environmental protection measures via
approved bioregional plans under new bilateral agreements with the
Commonwealth. This will ensure a better level of protection for the environment
and will also ensure a greater level of consistency across the jurisdictions
than currently exists under the Act. There will be more streamlined approvals
processes while at the same time adequate environmental protections will be
maintained.
2.39
The Department of the Environment and Heritage explained that:
The notion that somehow or other we could do a bioregional plan
and then the Commonwealth could walk away from that region and not be concerned
about anything that might happen is a little bit misleading.[28]
2.40
Another point that was raised was that while the proposed amendments
appeared to create the appropriate changes for streamlining environmental
assessment processes, they would not necessarily provide for a decision making
rationale that was consistent across commonwealth, state and local government
assessment processes. [29]
2.41
Yet, as the Department pointed out during the committee hearings:
The strategic assessment of policies, plans and
programs will also involve rigorous environmental assessment and proper public
consultation. An approval granted as a result of a strategic assessment will
enable the Minister to set legally enforceable conditions that are subject to
the penalty provisions of the EPBC Act. Just as in the case with a normal
approval, the Minister would have the ability to vary the conditions if new information
came to light about the impacts of the approved action. The Minister also has
the ability to suspend or revoke a strategic assessment approval if unforeseen
impacts come to light.[30]
2.42
Support was given for these aspects of the legislative changes by the
Australia Network of Environmental Defender’s Offices:
Amendments to section 134 provide that the type of
conditions the Minister can attach to approvals can include financial
contributions towards projects not directly related to the controlled action.
ANEDO supports this condition with three provisos. First, any such financial
contribution must go toward remediation and conservation projects and not
simply go to Consolidated Revenue. Second, there should be a nexus between the
conservation project and the development project itself on equity grounds.
Third, the basis for the calculation should be set down in regulations for
transparency and accountability.[31]
2.43
The Law Council of Australia also supported the proposed amendments in
relation to remediation. As they outlined in their submission to the inquiry:
The amendments: Provide a power for the Federal Court
to make a Remediation Order, but only on application by the Minister. Confer on
the Minister a power to make a remediation determination, or to accept
enforceable financial undertakings as an alternative to prosecution and; The
Minister may make remediation determinations regarding contravention of civil
penalty provisions (within six years) (Division 14B, section 480D). Any
financial contributions for paid for civil penalty contraventions should be
applied to remediation of the particular site, species or ecological habitat
that has been damaged, or to provide for its ongoing sustainability.[32]
2.44
Under the provisions of the bill, there would also be the increased
opportunity for public comment and transparency during the environmental
assessment and review process in relation to proposed actions.
2.45
These new arrangements were supported by Birds Australia, who stated in
their submission to the inquiry:
There appear to be a number of positive elements in
the amendments. Increased opportunity for public comment and transparency
during the environmental assessment and review processes is welcomed, for
example the provision for public comments on section 75 decisions.[33]
2.46
And as the Association of Mining and Exploration Companies stated:
The changes reinforce a commitment to sustainable
development while at the same time recognising the need to streamline the
processes associated with managing sustainable development.[34]
Conclusion
2.47
Overall, the Department considered that the proposed amendments would
facilitate a shift in the Australian Government’s focus from ad hoc
project-by-project approvals to a focus on a more strategic framework.[35]
2.48
It was explained that this approach is more likely to ensure that
regional natural resource management plans are taken into account, providing a
stronger and more strategic framework for environment and heritage protection.[36]
2.49
As the Minister has said, the Australian Government is streamlining the
Act with a series of amendments that will improve environmental protection by
focusing more on outcomes than process while maintaining our strong commitment
to protecting Australia’s unique and iconic natural, cultural and Indigenous
heritage.[37]
Committee view
2.50
The committee supports the changes to the Act in relation to
streamlining of approvals processes and the strengthening of the relationship
with the states and territories in regards to these streamlining provisions.
The amendments appear to largely eliminate duplication of processes between the
states and territories and Commonwealth authorities in relation to the Act.
2.51
The committee supports the proposal for the rollover of bilateral
agreements with the states and territories, subject to five yearly reviews. The
committee recognises that this is an effective use of state and territory
resources within Commonwealth agreements.
2.52
The amendments remove complexity and time consuming and unnecessary
procedures that exist currently under the Act.
2.53
The committee is also of the view that the new efficiency arrangements
will free up departmental resources in order for them to concentrate
effectively on other important aspects of managing the Act, assuring a
continuing focus on environmental outcomes.
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