Commonwealth Environmental Regulation

Sophie Power, Science, Technology, Environment and Resources
Juli Tomaras, Law and Bills Digest

Key Issue
The Government’s ‘One-Stop Shop’ has been implemented for environmental assessments. However, accrediting state approval decisions remains problematic, while other proposed changes to environmental legislationhave stalled.

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is the Commonwealth’s key environmental legislation. The EPBC Act is focussed on the protection of nine ‘matters of national environmental significance’. These matters include World Heritage properties; threatened species; the Great Barrier Reef Marine Park; and water resources in relation to large coal mining and coal seam gas developments (the ‘water trigger’). Actions that are likely to have a significant impact on a matter of national environmental significance undergo environmental assessment and require approval from the Commonwealth Environment Minister. The Minister usually attaches conditions to any approval.

The One-Stop Shop

Most projects and developments that require approval under the EPBC Act also need separate approvals under relevant state or territory legislation. Some industry groups argue that this is unnecessary duplication which in turn results in additional costs and delays for those projects.

As a result, the Commonwealth Government has implemented a ‘One-Stop Shop’ to create a single environmental assessment and approval process for nationally protected matters. The aim is to simplify the approvals process for businesses, while maintaining high environmental standards. The Government suggests that it will result in savings to business, by reducing administrative costs and delays. A 2015 House of Representatives Committee report on Streamlining environmental legislation also supported the One-Stop Shop (although ALP members disagreed on this point).

The ‘One-Stop Shop’ relies on provisions in the EPBC Act that allow the Commonwealth to make bilateral agreements with the states, accrediting relevant processes under state legislation. There are two types of bilateral agreements:

  • Assessment bilateral agreements accredit state and territory assessment processes for the purposes of the EPBC Act. A project is still referred to the Commonwealth, but assessed under the state processes and laws. The final approval decision is made by the Commonwealth Environment Minister. Assessment bilateral agreements were made in the past with states and territories, prior to the ‘One‑Stop Shop’ proposal.
  • Approval bilateral agreements accredit state and territory assessment and approval processes, where those processes meet certain standards. This means the final approval decision on a project is made by the state or territory government, not the Commonwealth. This mechanism has existed in the EPBC Act since it commenced, but has only been used once. Approval bilateral agreements cannot cover projects involving the water trigger.

By December 2015, assessment bilateral agreements were in place with all states and territories. Draft approval bilateral agreements for many states were published in 2014–15, but none have been finalised. The Commonwealth has released a condition-setting policy which aims to reduce duplicative conditions in projects that require both state and Commonwealth approval.

The EPBC Amendment (Bilateral Agreement Implementation) Bill 2014 did not pass in the last Parliament. Along with amendments to facilitate the operation of bilateral agreements, the Bill also initially proposed to allow the accreditation of state and territory approvals relating to the ‘water trigger’.

The ‘One-Stop Shop’ has been criticised by conservation groups, who argue that the delays and costs of federal environmental oversight are overstated. They would prefer the Commonwealth retain its regulatory powers over matters of national environmental significance, particularly matters where Australia has obligations under international agreements such as world heritage. There are also concerns that states may have a conflict of interest in approving projects which are of financial benefit to that state. Others suggest that the ‘one-stop shop’ may actually be a more complex system.

Other proposals for change

Another Bill that did not proceed in the last Parliament was the EPBC Amendment (Standing) Bill 2015. That Bill proposed to restrict the ability of certain individuals and organisations, such as conservation groups, to seek review of Ministerial decisions made under the EPBC Act. While supported by some industry groups, the Bill was criticised by lawyers, farming organisations and conservationists. Recent reports suggest this Bill may not be reintroduced this Parliament.

During the recent election campaign, both the ALP and Greens issued policies for stronger national environmental laws. Proposals included new ‘triggers’ (or matters of national environmental significance) such as a ‘climate’ trigger (to regulate land clearing) and a national parks trigger; as well as an independent environment protection agency. Another proposal was to extend the water trigger to cover all unconventional gas projects (such as shale and tight gas).

Conservation groups are also calling for a major overhaul of Australia’s environmental laws and have convened a panel of experts to develop new environmental legislation.

Meanwhile, many recommendations of a 2009 review of the EPBC Act (Hawke review) have not been implemented. The recommendations included, for example, establishing a National Environment Commission, responsible for advising on approvals, and monitoring and enforcement.

 A 2014 audit by the Australian National Audit Office raised concerns about the Department of the Environment’s ‘passive approach’ to the management of non-compliance with the EPBC Act. The Department has since taken steps to improve its compliance monitoring. Nevertheless, questions remain as to whether the Department has sufficient resources to monitor the large number of projects referred and approved under the EPBC Act to date.

Further reading

J Tomaras and B McCormick, Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014, Bills digest, 9, 2014–15, Parliamentary Library Canberra, 2014.

 

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