Bills Digest no. 9 2014–15
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Juli Tomaras, Law and Bills Digest Section
Bill McCormick, Science, Technology, Environment and Resources Section
15 July 2014
Purpose of the Bill
Policy position of non-government parties/independents
Position of major interest groups
Statement of Compatibility with Human Rights
Release of draft Approval Bilateral Agreements
Key issues and provisions
Schedule 1 – Referral of controlled actions
Schedule 2 – Flexibility in performing assessment of controlled actions
Schedule 3 – Accreditation of certain state processes
Schedule 4 – Minor amendments of bilateral agreements
Date introduced: 14 May 2014
Commencement: The day after Royal Assent.
Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s homepage, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation
When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.
The purpose of the Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014 (the Bill) is to amend the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) in order to implement the Government’s ‘One Stop Shop policy’ in relation to environmental approvals. In particular the amendments would:
- clarify that proponents do not need to make referrals to the Commonwealth for actions that are covered by an approval bilateral agreement
- give legal effect to different state and territory approval processes ‘recognising the different technical approaches taken by different states and territories to give legal effect to those processes’
- remove the restriction on referral of approval powers in relation to the coal seam gas (CSG) water trigger (the Windsor amendment) so that actions involving coal seam gas development or large coal mining development that are likely to have a significant impact on a water resource can be subject to an approval bilateral agreement
- restrict the referral process where an accredited bilateral agreement is already in place, thus approvals under that state or territory law will not require a separate approval under the EPBC Act for the matters specified. The accreditation is proposed to be extended beyond a ‘law’ so that the Minister may accredit an authorisation process set out wholly or partly in a law of the state or territory or an instrument made under such a law (for example, procedures and guidelines)
- provide that, where a state or territory amends the law relating to a bilaterally accredited authorisation process, the Federal Minister for the Environment will have the power to determine that the authorisation process may continue with no further accreditation required. However, this will be conditional upon the amendment to the relevant state or territory law not having, or being unlikely to have, a material adverse impact on a matter protected under the EPBC Act, or a person's ability to participate in the authorisation process
- relax the restriction that approval bilateral agreements can only apply to actions approved by a state or territory, thus enabling other entities such as local governments to be the authorising entities for an approval bilateral and
- provide the Minister for the Environment with the discretion to determine whether the proposed amendments apply to actions referred before the amendments' commencement date.
In a nutshell, managing, controlling and mitigating the risk of adverse impacts is the key rationale for government regulation of the approval of major development projects. The EPBC Act, introduced fifteen years ago by the Howard Government and aimed at assisting a co-operative implementation of Australia’s international environmental responsibilities, represented a watershed in Australian environmental law.
In her second reading speech, the then Parliamentary Secretary to the Minister for the Environment and Heritage, Sharman Stone, stated among other things:
Reform is necessary because the existing suite of Commonwealth law does not ensure high environmental standards in the areas of Commonwealth responsibility. Just as importantly, the existing legislation does not provide the community with certainty as to the Commonwealth's role, nor does it provide an efficient and timely assessment and approval process.
[The Bill] … provides the framework for a more effective national approach to environmental management, ensuring resources are focused on delivering better environmental outcomes at all levels of government. The Commonwealth's role in this national approach will, for the first time, be clearly and logically defined.
The Bill will promote, not impede, ecologically sustainable development and will conserve biodiversity. The bill will ensure the Commonwealth is equipped to deal with current and emerging environmental issues in accordance with contemporary approaches to environmental management.
For projects of national environmental significance that trigger Commonwealth involvement, the bill substantially increases the capacity for the Commonwealth to ‘accredit’ state processes.
The Commonwealth will seek to rely on state processes which meet appropriate criteria by entering into bilateral agreements with states which detail accreditation arrangements. In summary, the Commonwealth will be able to ‘delegate' to the states the responsibility for conducting assessments under the bill where state processes meet best practice criteria. [Emphasis added]
Other features of the new process include express recognition of the precautionary principle and other principles of ecologically sustainable development, the adoption of a strategic assessment process to promote cumulative and regional assessments and the establishment of a framework for state accreditation of Commonwealth assessments—for example, for projects affecting more than one jurisdiction.
In simple terms, one of the objects of the EPBC Act is to provide for ecologically sustainable development through the protection of the environment, focusing on Commonwealth interests in the nine matters of national environmental significance (MNES) listed in the Act. These include World Heritage sites, wetlands of international importance, migratory species, endangered species and the Great Barrier Reef Marine Park.
The Act provides that certain actions (including projects, developments, undertakings or activities) which are likely to have a significant impact on a ‘matter of national environmental significance’, known as ‘controlled actions’, must be referred (Part 7) for an assessment (Part 8) and approval (Part 9) process by the federal Environment Minister.
Under the EPBC Act, a controlled action is an action that will have or is likely to have a significant impact on:
- a ‘matter of national environmental significance’ (MNES) 
- the environment on Commonwealth land even if the action is taken outside Commonwealth land, and on the environment in general if the action is taken on Commonwealth land or
- the environment inside or outside Australian jurisdiction, where the actions are undertaken by the Australian Government or its agencies.
Under section 523 of the EPBC Act, an action is defined to include ‘projects, developments, undertakings, activities or a series of activities, or an alteration to any of these’.
There are presently nine MNES/‘triggers’ protected under the EPBC Act:
A person is prohibited from taking an action that has, will have or is likely to have a significant impact on a matter of national environmental significance except:
- in accordance with an approval from the Commonwealth Environment Minister
- in accordance with an approval from another Commonwealth decision-maker under a management plan accredited by the Commonwealth Environment Minister for the purposes of a Ministerial declaration or
- in accordance with an approval from a state under a management plan accredited by the Commonwealth Environment Minister for the purposes of a bilateral agreement.
The unlawful taking of an action that has a significant impact on a matter of national environmental significance may attract a civil or criminal penalty.
Section 68 of the EPBC Act requires a person(s) proposing to take an action that they think is, or may be covered by the Act to refer the proposal to the Environment Minister for a decision on whether the action is a ‘controlled action’ under the Act.
The Environment Protection and Biodiversity Conservation Regulations 2000 (the EPBC Regulations) require people submitting referrals to describe the proposed action, the nature and extent of its likely impacts, and state whether they consider the action to be a controlled action under the Act.
On the basis of the referral, the Environment Minister decides whether the proposal is a controlled action under the Act, and which of the controlling provisions apply.
In deciding whether an action is a controlled action, the Environment Minister must invite comment from other Ministers with administrative responsibilities relating to the proposal. The Minister must also publish the referral on the internet and invite public comment.
For controlled actions, the Environment Minister must choose how the impacts of the proposed action will be assessed. The following assessment options are available under section 46 of the EPBC Act:
- an accredited assessment process — a bilateral agreement or Ministerial declaration
- assessment on the basis of preliminary documentation
- a public environment report
- an environmental impact statement or
- a public inquiry.
The Environment Minister must invite comment from the state or territory where the proposed action will occur before determining which assessment approach to apply. Each assessment method includes public consultation.
Usually the only impacts that are considered relevant for assessment are the impacts that the proposed action has, will have, or is likely to have on the ‘controlling provision’ (that is, the matter of national environmental significance that has triggered the approval process).
Following a completed assessment, the Environment Minister has 30 business days (or 40 business days after a public inquiry) to decide whether or not to approve the action, and what conditions, if any, to place on the approval.
The Environment Minister may attach conditions to an approval to protect, or to mitigate, or repair damage to a matter covered by the Act, whether the damage is caused by the action or not.
The EPBC Act allows the making of bilateral agreements with the states and territories to accredit their environmental assessment and approval process. This effectively enables the Commonwealth to delegate its assessment and/or approval role to the state or territory, rather than having those actions assessed by the Commonwealth Government under the EPBC Act. Bilateral agreements are aimed at minimising duplication in assessment and approval processes and promoting efficiency, timeliness and effectiveness of processes.
As set out above, one of the assessment options available to the Minister under section 87 of the Act is a bilateral agreement entered into with a state or territory. There are two types of bilateral agreements:
- assessment bilateral agreements provide for a single assessment process by accrediting a state or territory process to assess the environmental impacts of a proposed action. After the assessment at the state or territory level a report assessing the likely impact on the relevant MNES is provided to the federal Department of the Environment. Then, at a state/territory and Commonwealth level decisions are made about whether to approve the project and what conditions are needed to meet the requirements in the respective jurisdictions, thus resulting in two approval decisions and sets of conditions and
- approval bilateral agreements go further by providing for the accreditation of a state or territory assessment and approval process in accordance with an agreed management plan or authorisation process under a state or territory law. Thus, a proposed action that is covered by an approval bilateral agreement does not require any further approval by the Commonwealth Minister under the Act.
Under the EPBC Act, approval bilateral agreements must be prepared in accordance with either a ‘bilaterally accredited management arrangement’ or a ‘bilaterally accredited authorisation process’, which requires accreditation by the Environment Minister.
Thresholds for bilateral agreements and accreditation
In general terms, the Commonwealth Environment Minister must be satisfied that a bilateral agreement and State or Territory processes or arrangements:
a) accord with the objects of the EPBC Act, which incorporate the principles of ecologically sustainable development, including the precautionary principle;
b) are not inconsistent with Australia’s obligations under each of the relevant international agreements;
c) promote management of protected areas such as World Heritage properties, National Heritage places and Ramsar wetlands in accordance with management principles adopted under the Act;
d) promote the survival and/or enhance the conservation status of any relevant threatened or migratory species;
and that individual approval decisions under accredited arrangements:
e) will be the subject of adequate assessment of the impacts that actions are likely to have on matters of national environmental significance;
f) are not inconsistent with any relevant threat abatement plans or recovery plans; and
g) will not result in the approval of an action that would have unacceptable or unsustainable impacts on any of the matters protected by the EPBC Act.
Source: Department of the Environment, Standards for Accreditation of Environmental Approvals under the Environment Protection and Biodiversity Conservation Act 1999, 2014, p. 8, accessed 10 July 2014. (References omitted.)
It should be noted that entering into a bilateral approval agreement does not exclude the Commonwealth. States must notify the Commonwealth of all proposed actions that will have, or are likely to have, significant impacts on the significant site.
With the exception of an approval bilateral agreement for the Sydney Opera House (now expired), thus far the Commonwealth has only negotiated assessment bilateral agreements. Where assessment bilateral agreements are in place, approval requirements are duplicated, but assessment requirements are not.
Assessment bilateral agreements with states and territories have been in place for over nine years under the EPBC Act, though there has not been a systematic review of their effectiveness. There are, however, five-yearly reviews done, with less than clear data about their effectiveness.
Via a comparable process Ministerial declarations accredit other assessment processes of a Commonwealth agency (other than the Department of the Environment), allowing actions to be assessed under those processes, rather than under the EPBC Act.
All states and territories have agreements with the Commonwealth about using their assessment procedures to assess projects under the EPBC Act and minimise duplication. These procedures were seen as a stepping stone for approval bilateral agreements.
A push for more bilateral agreements
In 2012, the Labor Government signalled its preparedness to negotiate the transfer of environmental approval powers (that is, the level beyond assessment) to states and territories as part of its response to the Hawke Review of the Act.
In that same year the Council of Australian Governments (COAG) decided to fast-track the development of bilateral arrangements for accreditation of state assessment and approval processes. However, at the COAG meetings in April and December 2012, then Prime Minister Julia Gillard clarified the Government’s position, indicating that more work was needed to progress such bilateral agreements. One reason cited by the Prime Minister was the need to ensure that high environmental standards would be consistently maintained across all jurisdictions. The Government had commenced negotiations on bilateral approval agreements and became concerned that states and territories may not be sufficiently committed to upholding the environmental standards it expected.
Prime Minister Gillard said that it was necessary for the Commonwealth to maintain powers over World Heritage, Commonwealth waters and nuclear issues.
Tony Abbott, then Opposition Leader, went further than this proposal and announced that:
As the [Business Council of Australia] BCA has recommended, the Coalition will offer state and territory governments the opportunity to act as a one-stop-shop for environmental approvals. Should they accept, the states and territories would administer a single approvals process including approvals under Commonwealth legislation such as the EPBC Act.
In December 2012 Prime Minister Gillard indicated that bilateral agreements of approvals were not appropriate because there was too much difference between the states:
‘I became increasingly concerned we were on our way to creating the regulatory equivalent of a Dalmatian dog,’ she said. ‘For businesses that would be the worst of all possible worlds. It would leave them with more litigation. We would have projects that were identical around the country subject to different treatment.’
In his submission to the Senate inquiry into the Bill, Dr Chris McGrath barrister and a senior lecturer in environmental regulation at the University of Queensland, agreed with this argument, saying that the Bill will increase the complexity of approval processes rather than simplify them. He appeared to be critical of the ability of the ‘One-Stop-Shop’ policy to cut red tape:
Whether the claimed benefits are achievable is an open question and there are serious potential problems with the proposed system. There is remarkably little evidence to support the claim that significant time and costs savings will be achieved by the policy. It also undermines one of the key functions and benefits of the EBPC Act in practice – to provide an appropriate level of oversight for State government decisions. This problem will be exacerbated if the Australian Government breaks its pre-election commitment to retain power for decisions on State government projects.
In 2012, the Government also requested that the Productivity Commission (PC) benchmark Australia's major project development assessment processes against international best practice. In February 2013, the PC published an issues paper canvassing two potential reforms for consideration: reducing jurisdictional overlap through the use of ‘approval bilateral agreements’ and increasing the use of ‘strategic assessments’. A strategic assessment is a big-picture approach to environment and heritage protection that is able to consider a broader range of impacts on an area than those which look at the impacts of individual action. Thus, for example, they take into account the cumulative effect of proposed or potential area use.
In June 2013, the Coalition announced that, if elected, it would implement a one-stop-shop for environmental assessment and approvals that would ‘set high standards, make swift decisions and deliver certain outcomes’.
On 16 October 2013 the federal Environment Minister, Greg Hunt announced that the Government had approved a framework consisting of a three stage process for achieving a one-stop‑shop to streamline environmental approvals. This involves:
1. Signing a Memorandum of Understanding with each of the willing states on the key principles and confirming co‑operation on achieving a single process.
2. Agreement on bilateral assessments and updating those which have already been in place with willing states.
3. Agreement on bilateral approvals within 12 months with willing states.
In December 2013, COAG agreed to work to developing bilateral agreements for ‘one-stop-shops’ for environmental approvals in each state. These new bilateral agreements for assessments and approvals are being developed at present.
Senate Environment and Communications Legislation Committee
On 15 May 2014, the Senate referred the Bill to the Senate Environment and Communications Legislation Committee, which reported on 23 June 2014. The Committee’s report recommended that the Bill be passed.
The Committee supports the establishment of a one stop shop for environment approvals as it considers that this ‘will improve the efficiency of environmental regulation while maintaining the high standards set out in national environmental law’. The concern of some submitters was noted but the Committee considered that sufficient safeguards, checks and balances and assurance mechanisms are being put in place and the call-in powers of the Minister would deal with these concerns. Both ALP and Greens Senators issued dissenting reports. Their views are discussed below.
Senate Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills expressed concern over insufficiently defined administrative powers arising out of proposed subsections 87(7) and 87(8) (Schedule 2, item 9).
Proposed subsection 87(7) provides that where an assessment begun by a state or territory is to be completed by the Commonwealth under Part 8 of the Act, the Minister must determine in writing which steps of the state or territory process are to be used for the purposes of assessing the relevant impacts of the action. Proposed subsection 87(8) provides that a determination made under proposed section 87(7) is not a legislative instrument.
Given that proposed subsection 87(7) ‘appears to give the Minister considerable discretion as to what assessment steps are required in particular cases’ and the Minister’s power ‘is not confined by reference to guiding principles or relevant considerations’, the Committee has sought advice from the Minister on:
… whether consideration was given to ways in which the exercise of this power may be appropriately controlled given that subsection 87(8) provides that a determination made by the Minister is not a legislative instrument and is therefore not disallowable.
Pending the Minister’s response, the Committee stated that these amendments:
… may be considered to make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers, in breach of principle 1(a)(ii) of the committee’s terms of reference.
In their dissenting report arising from the Senate Environment and Communications Legislation Committee’s inquiry into the Bill, ALP Senators recommended that the Bill not be passed. ALP Senators raised, among other things:
- a concern that the Bill will ‘not result in one uniform environmental approvals process for all states and territories. There will continue to be a lack of consistency between the Commonwealth and states and territories in assessing matters of national environmental significance because the Bill allows states and territories to keep their own processes, as long as they meet national standards’:
… as Schedule 5 of the Bill allows for people or entities, such as local government, to be authorised by the state to make approval decisions, industry could be faced with many hundreds of decision makers each with their own processes.
- a query about the size of efficiency and cost savings gains. This is because typically, the largest regulatory costs for proponents are in the assessment phase
- concern about the lack of experience of states and territories in approvals relating to the nine matters of national environmental significance. This raises the potential for mistakes and costs to proponents from appeals and damage to the environment
- concern that due to staff cuts over the next three years:
… the Department of Environment will have insufficient resources for comprehensive unscheduled audits of state government processes let alone to complete a full approval in the case of a call-in.
They specifically opposed the amendments relating to the water trigger because ‘the specific requirements of the water trigger are not duplicative’ and the water resource is of national significance therefore ‘a national approach to decision making is needed.’
The ALP also clarified that it did not commence this approval bilaterals process during its term of government. Rather, it ‘explored the option of pursuing approval bilaterals with the states and found that they would not lead to better environmental or business outcomes.’ The ALP clarified that its position on this issue remains unchanged.
The ALP also stated that for more complete understanding of its view on this Bill and approval bilateral agreements, reference should also be made to the March 2013 Environment and Communications Legislation Committee inquiry into the Environment Protection and Biodiversity Conservation Amendment (Retaining Federal Approval Powers) Bill 2012. The recommendations and findings in that report include:
- 'significant challenges emerged in developing approval bilateral agreements that provide consistency for business and assurance to the community that high standards will be made and maintained'
- any streamlining and strengthening of environmental regulation must only be undertaken in the context of Australia's national and international obligations, and that paramount in any legislative review is the Commonwealth’s critical role and ultimate responsibility for ensuring national and international environmental responsibilities are met
- concern in relation to the evidence of significant cuts to state government environmental departments as part of austerity measures by a number of state governments and
- concern at the potential for significant environmental degradation if the policy of competitive federalism results in a 'race to the bottom' on environmental protection in a bid for increased resource exploitation.
The Greens oppose the use of approval bilateral agreements and in 2012 introduced the Environment Protection and Biodiversity Conservation Amendment (Retaining Federal Approval Powers) Bill 2012 which would, if passed, have prevented the development of such agreements. At that time Senator Larissa Waters said ‘any steps to hand off approval powers would just be environmental corner-cutting, rather than a reduction in duplication’. When the Bill was introduced this year Senator Waters was quoted as saying:
“The government’s bill will let minister Hunt give state and territory governments the final say over whether coal seam gas and large coal mines should go ahead, without any federal checks of water impacts,” she said.
“But the bill doesn’t stop there – it further clears the way for all federal environmental approval powers to end up in the hands of state governments, winding back national environment protection by more than 30 years.”
In their dissenting Committee report Green Senators opposed the Bilateral Agreement Bill for a number of reasons, including that ‘state government cannot be trusted’, ‘environmental standards will fall’ and the ‘potential for conflicts of interest’. They were concerned that the bilateral agreements would not be able to maintain environmental standards due to ‘the highly discretionary nature of any decision to approve an action or impose conditions’. The potential conflict of interest may arise where state and territory governments will receive revenue from, or are proponents of, major development projects and must decide whether to approve these projects and under what conditions.
They rejected the efficacy of the reserve ‘call-in’ power written into draft approval bilateral agreements with Queensland and NSW to protect environmental standards:
There will be no political will for the federal Environment Minister to call projects in, no staff to alert them in a timely manner of the need to do so, and no realistic prospect of the high bar for a call-in being able to be met.
A number of industry groups support the one-stop-shop policy.
The Association of Mining and Exploration Companies have long supported a one-stop-shop for environmental impact assessment and approvals and said that the assessment by states, territories and Commonwealth of the same impacts using the same information is a needless duplication of time and resources.
The Mining Council Australia, while noting its opposition to a ‘water trigger’, supported its inclusion in the one-stop-shop arrangements.
While Ports Australia applauded the one-stop-shop policy, it stated that it understood that the policy won’t apply to most port projects since ‘the Commonwealth will retain sole responsibility for activities in Commonwealth waters and areas within the Great Barrier Reef Marine Park (GBRMP), including dredging’. For dredging projects in the GBRMP, it proposed assessment and approvals under the EPBC Act, the Environment Protection (Sea Dumping) Act 1981 and the Great Barrier Reef Marine Park Act 1975 should be undertaken by a single team. Ports Australia believes there needs to be sufficient staff in port related activities to properly assess and approve projects in a timely and efficient manner.
However, the NSW Irrigators’ Council wants the Commonwealth to retain its powers to assess and approve large coal mining and coal seam gas projects (the water trigger) because the current NSW legislative framework is inadequate to protect water resources from the impacts of coal mining and CSG activities. The Council argues the current standard of the Commonwealth assessment process must be maintained.
Many environment and conservation bodies did not accept the proposition that the approval bilateral agreements will increase efficiency and opposed handing over assessment and approval powers over the water trigger to the states and territories.
The Worldwide Fund for Nature (WWF) said that to maintain high environmental standards the approval powers relating to matters of national environmental significance should not be delegated to the states and territories. It referred to opportunities to streamline environmental approvals without reducing environmental standards as explained in the Wentworth Group of Concerned Scientists’ 2012 publication. Duplication could be reduced by having a one-stop-shop for assessments (but not approvals), national assessment standards could be improved to streamline assessments, and better guidelines and standards developed to improve certainty for business. The paper also suggested that there should be an expansion of regional planning and strategic assessment for areas that are most subject to cumulative impacts of development.
The Lock the Gate Alliance argued that the delegation of approval powers to the states and territories in the manner proposed in the Bill may inflict ‘irreversible environmental damage to matters of national environmental significance’ and place Australia ‘at risk of breaching its obligations under several international treaties’.
Humane Society International raised a number of concerns relating to the delegation of approvals to states and territories. It said that state and local governments are unsuited to assess development proposals ‘in the national interest. They are conflicted by the short-term gains of jobs and royalties that development often promises and, at times, state governments themselves act as the direct proponents of projects’.  It claimed that some states have a poor record of administering their environmental laws. It noted that while the focus has been on Commonwealth approval processes, state approval processes may also be lengthy.
Peter Cosier of the Wentworth Group of Concerned Scientists was highly critical of the amendment by which approval bilateral agreements were being delegated to states and territories, saying no state has been able to comply with the national standards necessary for this to happen. Neither state nor local governments have the mandate to protect matters of national environmental significance:
The inevitable outcome of these rushed bilateral agreements will be that national standards will be reduced, a clear breach of the Abbott government’s commitment to maintain high environmental standards.
The worst outcome of all is that giving away these powers removes any incentive for the states to bring their dysfunctional land use planning systems into the 21st century. Reform of state land use planning is by far the most effective way to promote development and protect the environment. Most state land use planning systems are incapable of managing the cumulative impact of developments that are causing longterm damage to our land, water and biodiversity assets — whether it be land clearing, or water extraction from rivers and aquifers, or coal seam gas developments.
The Revised Explanatory Memorandum to the Bill states that it will have no direct financial impact.
As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.
The Parliamentary Joint Committee on Human Rights considers that the Bill does not appear to give rise to human rights concerns.
In addition to introducing this Bill into Parliament, the Government also released the draft EPBC Act approval bilateral agreements between the Commonwealth and New South Wales (NSW), and the Commonwealth and Queensland that would allow the states to approve development proposals triggering the Act.
In the case of the Queensland Draft Agreement and accredited legislation, there does not appear to be explicit provision for extended legal standing for community groups for judicial review or open standing that is comparable to that under the EPBC Act, thus raising issues about enforcement. However, ‘to ensure that matters of national environmental significance are considered in their national context, decision-makers must accept comments or submissions on proposed actions from anyone in Australia, if those comments or submissions are made in accordance with the requirements of the accredited process.’
Part 5 of the EPBC Act provides for the Minister, on behalf of the Commonwealth, to enter into bilateral agreements with the states and territories. The proposed amendments make changes to existing provisions in Part 5 of the Act to both broaden and deepen the bilateral agreement process, with the intention of giving effect to the government’s ‘One Stop Shop policy’.
Item 1: section 66 of the EPBC Act is a simplified outline of Chapter 4, which deals with environmental assessments and approvals. It currently explains that decisions on whether a referred action is a controlled action (Part 7 of the EPBC Act), and are thus subject to an assessment and approval process, are to be made by the Federal Environment Minister.
The proposed amendment to section 66 will specify in the simplified outline that Part 7 of the EPBC Act will not apply and require an action to be referred to the Federal Minister for the Environment where those actions are covered by or potentially covered by an approval bilateral agreement; or where an action is being, or is to be assessed under such a bilateral agreement and a decision has not yet been made about whether the action is approved in accordance with the agreement.
Item 2: proposed section 66A clarifies that in the abovementioned circumstances, proponents will not need, or be able, to refer an action to the Commonwealth. However, subsection 66A(3) provides that if the bilateral agreement is suspended generally or suspended in relation to actions in a specified class and the proposed action falls into that class, then the action may be referred to the Federal Minister for the Environment.
In relation to an action being taken in two or more states and territories, unless bilateral approval agreements apply in each of the relevant states or territories, then the class of action is not exempt under proposed section 66A (proposed subsection 66A(4)). In this case, the action proposed in the state or territory without an approval bilateral agreement may be referred to the Commonwealth under Part 7 of the Act.
Item 12: provides that the amendments proposed in Schedule 1 will apply to actions referred under section 68 of the Act before, on or after the day of commencement.
Item 1: inserts updated clauses to the simplified outline for Chapter 4 at section 66. It amends section 66 to explain that where the Environment Minister or the relevant Minister of a state or territory declares that an action specified in an agreement is no longer covered by the agreement, a person proposing to take the action is deemed to have referred the proposal to the Environment Minister under the Act. The Explanatory Memorandum provides a non-exhaustive list of circumstances under which this may happen. This includes:
- through triggering clauses in the approval bilateral agreements which allow, in defined limited circumstances, a state/territory Minister or the Commonwealth Minister to declare that a particular action is not within the class of actions to which the approval bilateral agreement relates
- where the nature of the scope or action changes such that it may no longer come within the class of actions to which the agreement relates. For example, if a project changes so that the action may have a significant impact on Commonwealth waters
- the suspension or cancellation of a bilateral agreement under Division 3 (Suspending and ending the effect of bilateral agreements) of Part 5 of the Act or
- a court determines that an action is not within the class of actions to which the agreement relates.
Item 3: taken together proposed subsections 69A(1) and (2) provide that where the Environment Minister or the relevant Minister of a state or territory declares that an action specified in an agreement is no longer covered by the agreement, a person proposing to take the action is deemed to have referred the proposal to the Environment Minister under the Act at the time the declaration is made. This ensures the action can efficiently transition to an assessment process under the Act.
Item 4: proposed subparagraph 74AA(1)(b)(i) makes it an offence to take an action before the Minister has made a controlled action decision on a proposal that has been taken to have been referred to the Commonwealth under proposed section 69A.
Item 5: revises section 85 (the simplified outline of the division dealing with ‘decision on assessment approach’) in line with the One Stop Shop policy and preceding amendments. Thus, as an alternative to the current process of the Minister choosing one of the assessment approaches for a referred action, the Minister may declare that an assessment completed or to be completed by a state or territory government under a bilateral agreement is an assessment for the purposes of Part 8 (Assessing impacts of controlled actions) of the Act. Also, if a state or territory has partially completed an assessment of the relevant impacts of an action, the Minister may determine that the steps of the state or territory assessment process are to be used for the purposes of assessing the relevant impacts of the action and the remaining steps are to be carried out under Part 8 of the Act. However, where there is an assessment bilateral agreement in place, then the remaining assessment steps may be completed by the state or territory government.
Item 6: proposed paragraph 87(3)(ca) provides that when deciding on the approach for assessment under Part 8 of the EPBC Act in circumstances where an action is deemed to have been referred to the Commonwealth or the action is being assessed under bilateral agreement and the agreement is suspended or cancelled, another matter the Minister must take into account is the extent to which a partially completed assessment of the action by the state or territory can be used so that the assessment can be completed.
Items 7 and 8: amend paragraphs 87(4)(a) and 87(4)(c) to provide the Minister with the option of deciding that the assessment approach that will be used for a particular action will be an ‘accredited assessment process’ where part or all of that assessment has already been completed by the relevant state or territory government. Currently, accreditation of a state or territory assessment process can only occur where the assessment has not yet commenced. The Explanatory Memorandum states that this is designed to reduce duplication. It may also result in speedier approval decisions.
Item 9: proposed subsection 87(7) provides that where an assessment begun by a state or territory is to be completed by the Commonwealth under Part 8 of the Act, the Minister must determine in writing which steps of the state or territory process are to be used for the purposes of assessing the relevant impacts of the action. The Explanatory Memorandum states that the reason for this articulation is because it is acknowledged that assessment steps in state or territory processes will differ, and may not necessarily align with the steps under the various assessment approaches under Part 8 of the Act. Proposed subsection 87(8) provides that a determination made under proposed subsection 87(7) is not a legislative instrument. As set out above, the Senate Standing Committee for the Scrutiny of Bills expressed concern about possible insufficiently defined administrative powers, stating that:
This provision appears to give the Minister considerable discretion as to what assessment steps are required in particular cases. […] the power is not confined by reference to guiding principles or relevant considerations.
Item 10: proposed section 87A enables the Minister to make a determination that an assessment by the state or territory under a bilateral agreement is an assessment for the purposes of Part 8 of the Act. This would allow the Minister to then make a decision on whether or not to approve the action under Part 9 of the Act. Proposed subsection 87A(3) provides that a decision under proposed section 87A(1) is not a legislative instrument and thus not subject to disallowance.
Proposed section 87B enables the Minister to make a determination that an assessment by the state or territory under a bilateral agreement is an assessment for the purposes of Part 8 of the Act, where the assessment bilateral agreement has been suspended or cancelled but the action has not been approved.
Item 12: proposed paragraph 130(1B)(aa) sets a 40 business day timeframe for a decision by the Minister on whether or not to approve the taking of an action if a determination under section 87A or section 87B has been made in respect of the action. The Explanatory Memorandum states that this is designed to provide businesses with certainty. However, it is unclear that such a timeframe is consistent with robust environmental decision making in the context of major complex projects.
Item 17 – Application
The amendments in Schedule 2 are to apply to actions that:
- have been assessed (but not yet approved) by a state or territory before the amendments commence
- are being assessed by a state or territory on the day the amendments commence or
- will be assessed by a state or territory on or after the day the amendments commence.
Part 1—Amendments relating to water resources
On 21 June 2013, Part 3 of the Act was amended to include water resources as a new matter of national environmental significance in relation to coal seam gas and large coal mining development. This is referred to as the 'water trigger'.
During parliamentary debate on this legislation, Independent MP Tony Windsor introduced a provision into the 'water trigger' amendments preventing the Commonwealth from entering into a bilateral agreement under which a state government can be given responsibility for approving development under the new 'water trigger'. As a result, currently under the Act, the 'water trigger' is the only matter of national environmental significance that cannot be the subject of an approvals bilateral agreement.
The Coalition, which supported the 'water trigger' through the Senate, had signalled prior to the 2013 Federal Election that its policy position was to delegate Commonwealth responsibility for approving development under the' water trigger' to the states.
Taken together, the amendments proposed by items 1 and 2 of Schedule 3 allow states and territories to be accredited for approval decisions on large coal mining and CSG developments that are likely to have a significant impact on a water resource. Currently, section 46 of the Act prohibits this due to the operation of the Windsor amendments.
The proposed amendments to subsections 29(1), 46(2) and (2A) made by items 1 and 2 will allow a bilateral agreement to declare that actions involving coal seam gas or large coal mining developments which have, will have or are likely to have, a significant impact on water resources are actions within a class of action that do not require approval under Part 9 of the Act.
An issue that may arise from delegation of approval of large coal mining and CSG projects to the states and territories relates to the input of the Independent Expert Scientific Committee (IESC) on coal seam gas and large coal mining development. The IESC was set up in 2012, under the EPBC Act, to advise state and federal governments. However, there is no requirement to follow the IESC’s advice. For example, the Queensland Government is reported to have approved the $16.5 billion Carmichael coal and rail project in the Galilee Basin, accepting the advice of experts employed by the project proponents rather than that of the IESC. In its advice the IESC stated that it had ‘little confidence’ in the predictive capacity of the project’s groundwater modelling of the impact of the project on the Mellaluka Springs Complex and there was not enough known about how the coal seams connect to the Great Artesian Basin, or the likely effects of mining. The IESC ‘also said it was worried about the cumulative impacts of the Carmichael project when added to other large mining schemes in the area, as well as the risk of flooding and discharges from the mine into creeks and rivers’. The question arises as to whether, in state or territory decisions on future projects, advice from the IESC will have lesser or greater weight than advice from experts employed by the proponent in deciding on whether EPBC approval should be granted and under what conditions.
Items 2A, 2B and 2C: section 48A of the EPBC Act spells out mandatory provisions for bilateral agreements. To provide confidence in states and territories approving water trigger projects under approval bilateral agreements, the amendments to section 48A of the EPBC Act in items 2A, 2B and 2C stipulate mandatory requirements for approval bilateral agreements that cover the water trigger to include undertakings by the relevant state or territory to seek, and to take into account, the advice of the IESC when deciding whether or not to approve the action or class of actions that are likely to have a significant impact on water resources.
Item 2D: section 505D of the Act refers to the functions of the IESC. Item 2D inserts an additional function for the IESC in proposed paragraph 505D(1)(ba), enabling the Commonwealth Minister for the Environment to request supplementary advice from the IESC on coal seam gas and large coal mining developments being assessed under a bilateral agreement which are likely to have significant impacts on water resources. This would be supplementary to the advice which the IESC would provide to the state or territory on a particular development. This may include advice on the extent to which the state or territory has assessed the impacts of the development and considered the initial advice of the IESC. The inclusion of a call in power in the bilateral approval agreements is designed to enhance confidence in states’ following the advice of the IESC.
Part 2 – Amendments relating to bilaterally accredited authorisation processes
Under the current provisions of the EPBC Act, the Minister may only accredit an authorisation process if it is set out in a ‘law of the relevant state or territory’.
Items 6–9: taken together, the proposed amendments mean that what the Explanatory Memorandum refers to as ‘appropriate’ types of authorisation processes, can be accredited under approval bilateral agreements. This means that an authorisation process may be accredited where it is:
- set out in or made under a law of the state or territory or
- set out in an instrument made under a law of a state or territory.
The amendments will mean that the Minister may accredit authorisation processes that are set out in, for example, procedures or guidelines which are made or issued under state or territory law, but which are not set out in the state or territory legislation itself, provided they meet appropriate Commonwealth standards for assessing and approving actions. Thus, this would enable other entities such as ‘expert panels’ or local councils in their role in approving development projects to potentially be the authorising entities for an approvals bilateral agreement. Given the number of local councils that this may have implications for within jurisdictions, it may represent a challenge in terms of transparency and accountability. This may be a significant issue as it is unclear that local councils have the expertise, or are sufficiently equipped, to manage the cumulative impacts of development that may cause long term damage to land.
Item 1: the amendments under this section apply in relation to a bilateral agreement with a state or self‑governing territory including a declaration under section 46 of the Act if a management arrangement or authorisation of a bilaterally accredited authorisation process for the purposes of the agreement is amended. Proposed subsection 46A(2) enables the federal Minister for the Environment to determine that states and territories may make amendments to statutory processes without the need to amend the approvals bilateral agreement or reaccredit the authorisation process if the Minister is satisfied that:
- the amendment will not have, or is not likely to have, a material adverse impact on a matter protected by a provision of Part 3 (Requirements for environmental approvals)
- the amendment would not be likely to have a material adverse effect on a person’s ability to participate in the process provided for by the accredited management arrangement or authorisation process and
- the authorisation process or management arrangement continues to meet the normal accreditation requirements in the Act, namely:
– the varied authorisation process or management arrangement continues to provide an adequate assessment of the impacts the action has or will have, or is likely to have, on each matter protected by Part 3 of the EPBC Act to which a declaration in the bilateral agreement relates and
– actions approved in accordance with the management arrangement or authorisation process will not have unacceptable or unsustainable impacts on a matter protected by Part 3 of the EPBC Act to which a declaration in the bilateral agreement relates and
– the varied management arrangement or authorisation process will continue to satisfy the relevant requirements in relation to relevant matters protected under Part 3 of the EPBC Act.
Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.
. On 21 June 2013, Part 3 of the Act was amended to include water resources as a new matter of national environmental significance in relation to coal seam gas and large coal mining development. This meant that the impacts of proposed coal seam gas and large coal mining developments on water resources have to be comprehensively assessed at a national level. Significant impact on water resources include changes to the quantity, quality or availability of surface or ground water, alteration to ground water pressure and/or water table levels and alteration to drainage patterns. This is relevant because most large coal mining and coal seam gas projects may impact water resources in some of these ways. For further background and details on the ‘water trigger’ see: B McCormick, A St John and J Tomaras, Environment Protection and Biodiversity Conservation Amendment Bill 2013, Bills digest, 108, 2012–13, Parliamentary Library, Canberra, 13 May 2013, p. 14, accessed 9 July 2014.
. MNES are listed in Chapter 2, Part 3, Division 1, sections 12-24A, EPBC Act.
. Section 28, EPBC Act.
. Part 3 of Chapter 2, EPBC Act.
. Section 69 of the EPBC Act provides that a state or territory agency with administrative responsibilities relating to a proposed action may also refer the action and, under section 70 of the EPBC Act, the Environment Minister may request a person or a state or territory agency to refer a proposal.
. Sections 95 and 95A, EPBC Act.
. Section 82, EPBC Act.
. Section 130, EPBC Act.
. Subsections 134(1A) and (1), EPBC Act.
. Subsection 45(2), EPBC Act.
. Section 44, EPBC Act.
. Subsection 33(2), EPBC Act.
. Subsection 33(2A), EPBC Act.
. Subsection 65(2), EPBC Act.
. Section 33, EPBC Act.
. Council of Australian Governments (COAG), Communique, COAG Meeting, Canberra, 14 July 2006, accessed 3 June 2014.
. Council of Australian Governments (COAG), Communique, COAG meeting, Canberra, 13 April 2012, accessed 4 June 2014.
. Council of Australian Governments (COAG), Communique, COAG Meeting, Canberra, 13 December 2013, accessed 5 June 2014.
. The call-in powers are built into the approval bilateral agreements and enable the Commonwealth to decide an application before a decision is made at a state or territory level.
. Senate Environment and Communications Legislation Committee, op. cit., p. 37.
. Department of Sustainability, Environment, Water, Population and Communities, Submission no. 114, p. 5 cited in Senate Environment and Communications Legislation Committee, Inquiry into the Environment Protection and Biodiversity Conservation Amendment (Retaining Federal Approval Powers) Bill 2012, Report, Canberra, March 2013, p. 28, accessed 7 July 2014.
. The Statement of Compatibility with Human Rights can be found at page 4 of the Revised Explanatory Memorandum to the Bill.
. That is: an accredited assessment process; an assessment on referral information; an assessment on preliminary documentation; a public environment report; an environmental impact statement; or a public inquiry.
. Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (IESC), Home page, IESC website, 8 October 2013, accessed 11 July 2014.
. On 16 June 2014, in the second reading debate in the House of Representatives, the Government introduced amendments to the Bill, which inserted items 2A to 2D into Schedule 3 of the Bill. These amendments were accepted and are included in the third reading version of the Bill.
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