Environment Protection and Biodiversity Conservation Amendment (Bilateral
Agreement Implementation) Bill 2014
This chapter discusses the key issues raised in submissions and evidence
in relation to each of the five schedules of the Environment Protection and
Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill
2014 (the Bilateral Agreement Implementation Bill).
Schedule 1—Referral of controlled actions
The purpose of
The purpose of Schedule 1 of the bill proposes to make amendments to
Part 7 (Deciding whether approval of actions is needed). This will clarify that
a proponent will not need, or be able to make, a referral to the Commonwealth
for an action that is or could be covered by an approval bilateral agreement.
The amendments aim to remove duplication in environmental assessments under the
one stop shop policy. The Department of the Environment (the department) stated
that this will provide additional certainty to proponents and improve the
operation of the one stop shop reforms.
The one stop shop reforms
Many of the submissions received by the committee opposed the one stop shop
It was argued that the reforms will not deliver their stated goals. For
example, Places You Love Alliance stated that the one stop shop approach is a
'fundamentally flawed policy'.
It was claimed that the one shop stop policy will not achieve its stated aims
it will add complexity to approval processes;
it will not result in any efficiency gains;
currently, no state or territory has sufficient resources or the
appropriate environmental processes in place to adequately assess actions that
may impact on national environmental standards;
it will result in a diminution of current environmental standards
pertaining to matters of national environmental significance; and
it will create potential conflicts of interest.
In contrast, Australian Forest Products Association, Association of
Mining and Exploration Companies (AMEC), the Premier of Queensland, the
Minerals Council of Australia, the Business Council of Australia and the Australian
Petroleum Production & Exploration Association Limited supported the
amendments proposed in this schedule.
It was noted that there has been duplication in assessment processes which has required
extra resources and resulted in time delays for proponents.
The department also pointed to the benefits of the one stop shop
approach and stated:
The one stop shop for environmental approvals is designed to
address business and community feedback that many environmental processes and
protections are duplicated between jurisdictions.
Further, a lack of consistency between the Commonwealth and a
state or territory can lead to inconsistencies in processes and outcomes and
conflicting timeframes. This makes navigating the complex suite of
environmental regulations across levels of government more difficult for business,
community groups and others.
Duplication in environmental regulation between the
Australian Government and states and territories adds an unnecessary burden to
business, increasing the administrative and compliance costs and delaying
projects. The one stop shop reforms will lift that burden where the state
process meets the National Standards for Accreditation of Environmental
Approvals. This will provide faster approvals and deliver productivity
benefits to business.
The discussion below addresses the issues raised in evidence relating to
Schedule 1 of the Bilateral Agreement Implementation Bill.
Submitters argued that rather than a streamlined system, the proposed
one stop shop approach would, in fact, result in a more complex process. In effect,
there will be an 'eight stop shop' with the accreditation of state and
territory approvals processes. It was also noted that the state and territory
environmental protection regimes are quite different in scope, function and
It was argued that the accreditation of state and territory environmental
processes would have the effect of shifting from a single Commonwealth
approvals process to the eight separate processes used by the respective jurisdictions
and resulting in further complication of the approvals process rather than the streamlining
of it. For those proponents located in more than one jurisdiction, the
complexity would be significant as they would have to make themselves aware of
the various processes applicable in each jurisdiction.
For example, the Australian Network of Environmental Defender's Offices (ANEDO)
Hasty bilateral agreements to delegate Commonwealth
government powers to State[s] and Territories, as proposed by the Federal
government's 'one stop shop' approach and facilitated by the Bill, may in fact,
create complexity and fragmentation with a confusing 'eight stop shop' of
different State and Territory systems as Commonwealth requirements are 'bolted
on' to the different state legislative structures.
Mr Glen Klatovsky of the Places You Love Alliance similarly stated:
The one-stop shop is going to be at least an eight-stop shop.
We will see matters of national environmental significance handed to eight
separate jurisdictions with eight separate individual and different legislative
and regulatory regimes...Once you have local government and other panels
available you start to multiply even further.
Dr Chris McGrath also stated that, in his opinion, the proposed changes
to the EPBC Act would increase the complexity of the approvals process, not
By contrast, the committee heard from industry, for example AMEC and the
Minerals Council of Australia, that currently proponents are faced with duplication
At present, proponents are required to have proposed actions assessed by the
state or territory government and also have them approved, in certain
circumstances, by the Commonwealth. A proponent with interests spanning across
jurisdictions may be made subject to the processes of nine separate
jurisdictions, comprising the Commonwealth, the six states and the two
territories. At the very least, a proponent must now consider two separate
processes, the state process and the Commonwealth process.
It was argued that, from the proponent's perspective, the proposed
changes will simplify the process, eventually allowing a proponent to make a
single application to a state or territory decision maker which will, in turn,
hand down a single integrated approval and assessment decision.
Dr Rachel Bacon, Department of the Environment, responded to comments on
On the question of whether there would end up being eight
one-stop shops, we have been looking at the question from the perspective of a
proponent. So, for example, an individual proponent generally would be dealing
with one statutory approval pathway. For example, a mining company would be
dealing with a statutory assessment and approval process in relation to mining.
For all the states and territories that we have been talking to, that mining
company will be dealing generally with a single statutory process for
assessment and approvals in relation to mining activity...
Efficiency gains and cost reduction
Some submitters did not support the argument that the one stop shop
policy would result in efficiency gains and cost reductions. It was
acknowledged by both Mr Klatovsky of Places You Love Alliance and Ms Rachel
Walmsley of ANEDO that there are efficiencies to be gained through EPBC Act.
Ms Walmsley went on to comment that finding efficiencies in the EPBC Act was
the preferred option rather than the one stop shop policy and stated that:
...the Hawke review actually put forward a whole package of
ways in which federal environmental law could be strengthened and made more
efficient. I think that is the best starting point for addressing questions
about efficiency and how to better coordinate the laws in Australia. I do not
think handing over powers to states or territories is going to effectively
protect Australia's matters of national environmental significance.
In addition, the Wentworth Group of Concerned Scientists commented that
industry groups have not been able to produce sufficient evidence that systemic
delays by Commonwealth approvals are having a significant impact on economic
The Wentworth Group of Concerned Scientists stated that 'efficiency savings
could be achieved by better coordinating assessment processes, without
compromising approval responsibilities'.
Dr McGrath added his view and commented:
The existing system of assessment bilaterals is really
dealing with the costs and delay issues from a proponent's perspective as much
as you can. The final decision maker really does not add much in costs or
delays from a proponent's perspective, so the approval bilaterals are a bit of
smoke and mirrors, really. The real money is in the assessment. The real delay
is in the assessment. And that is already done in conjunction with states under
the assessment bilaterals. Who makes a final decision does not make a big deal
Dr McGrath also stated that most medium to large proposed actions are
referred to the Commonwealth as a matter of course early in the process. The
approvals process runs in parallel to the assessment process and in the
majority of cases it only takes a few weeks. He mentioned that the only
requirement is that the relevant form needs to be completed.
However, Ms Melanie Stutsel of the Minerals Council of Australia
explained that the requirement of filling in an extra form is not necessarily a
simple process. Rather, an application for approval may involve as much work as
an assessment application. Ms Stutsel stated:
...when you go through your referral process, the matters that
you are required to consider in the environmental impact assessment might be
different matters or might be differently framed from the matters that are in
your state process. You might have produced some 400,000 pages of environmental
assessment...and you might have to go back and do it again. We have seen that
with our largest project. It might be that you only need to provide a portion
of the material you have provided to the state or it might be that you need to
provide the material in a different format. And when you provide that there is
often a delay process while those matters are considered and the adequacy and
comprehensiveness of what you have provided are considered. Then we often find
that there is a request for additional information to be provided. So that will
create an additional information burden but also an additional time delay.
Mr Graham Short, AMEC, provided the following example of delays under
the current arrangement:
The delay has occurred as a result of the federal agency
coming back through the state and territory regulatory agency requesting
further information that has already been provided to the state or federal
agency and, as I say, doubling up on the information as well as—depending on
when the matter of national environmental significance has been identified—the
federal agency being brought into the process. We have certainly heard of
circumstances where the process has been going through the state or territory
government and then it has been identified that there is national environmental
significance, which then triggers the EPBC Act and that process then starts
again. So all the information that has already been provided and the process
that has been gone through for state or territory approval then commences
through the federal process, therefore there is the delay in that.
The Minerals Council of Australia referred to the cost-benefit analysis
by Deloitte Access Economics which found:
...the implementation of approval bilateral agreements along with
administrative reforms would result in significant net benefits to both the
Australian Government and project proponents. Specifically, the estimated cost
savings over a 10 year period include:
$378 million in net benefits for
the Australian Government.
$90 million in net benefits for
the state and territory governments.
$745 million in net benefits for
A further issue raised was that of litigation and the possible
consequential delays to the approvals process.
For example, Environmental Justice Australia stated:
Rather than simply creating 'flexibility' the Bill also
creates considerable uncertainty that creates a greater risk of litigation to
Dr Bacon pointed out that efficiencies will be gained by reducing
duplication in the assessment and approvals process. She explained the problem
Currently there is a situation where state and territory
decision makers or regulators undertake assessments and approvals in relation
to environmental matters for particular projects. Where those particular
projects may also trigger the EPBC Act—in other words, where there may be a
significant impact on matters of national environmental
significance—essentially the Commonwealth regulator, located in the Department
of the Environment, comes into the process in addition to the state or
territory regulator. It looks at often much of the same types of material or
the same types of environmental assessment material and surveys et cetera but
does that from the perspective of looking specifically at what the potential
impacts might be on matters of national environmental significance. Essentially
the state or territory regulator is looking at the whole-of-environment
impacts, and the role of the Commonwealth regulator is to look at the eight or
nine specific enumerated matters of national environmental significance under
the Commonwealth legislation, so essentially the proponent is dealing with two
regulators as part of the same project approval process.
Dr Bacon went on to provide an example of a situation where removing
duplication resulted in substantial cost savings:
An example of reducing the cost through duplication comes
from the recent accreditation of the NOPSEMA [National Offshore Petroleum
Safety and Environmental Management Authority] process, which is the offshore
petroleum, oil and gas agency. Their processes have been accredited under a
strategic assessment that was recently finalised. The estimated cost savings
annually from that process are in the order of $120 million per year. So, they
are the kinds of savings in that scenario that can derive from reducing
duplication in these kinds of circumstances.
Dr Bacon went on to conclude:
Our analysis...is that probably the greatest source of savings
derives from avoiding the delay of having a second approval where there is a
second approval that occurs after a state or territory approval and the second
and subsequent Commonwealth approval comes later.
Maintenance of national
Of particular concern to many submitters was that the one stop shop
policy would result in the potential diminution of environmental standards. However,
the department has strongly emphasised the need to maintain high environmental
standards and stated that the proposed legislation will not have the effect of
diluting environmental protections. The department stated:
The reform will maintain high environmental standards while
delivering an improved means to achieve better outcomes for business. The
approval bilateral agreements will contain explicit and robust assurance
processes, to provide confidence to the Commonwealth Government and the public
that the standards required of the Commonwealth under the EPBC Act are being
The emphasis on better outcomes for business as the basis of the reforms
was disputed by submitters who argued that environmental laws are an essential
element of a healthy society and should not be seen as burden on business. ANEDO
stated that it:
...strongly opposes moves to reduce environmental regulation
merely to ease perceived pressure on business and fast-track major development.
Fast approvals that deliver poor quality, high risk or unsustainable
development are not in the public interest. ANEDO supports a strong
Commonwealth role in protecting matters of national environmental significance.
Some submitters also argued that there is a need to keep national
protection measures for matters that effect Australia's international
obligations and matters of national significance, such as the mining and
milling of uranium, biodiversity conservation and the protection of Australia's
water resources. The failure to do so may result in a failure to adhere to the
standards resulting in direct and indirect costs to present and future
Furthermore, as noted by Mr Klatovsky, there is evidence from the United
States and the European Union that good environmental protection laws actually
deliver substantially higher public financial benefits, many multiples higher,
than compliance costs.
The main argument put forward by opponents to the Bilateral Agreement
Implementation Bill was that environmental standards would be diluted as states
and territories do not have the same standards as those contained in the EPBC
Act and are not capable of assessing impacts of projects on matters of national
environmental significance and the national interest.
Dr McGrath, for example, commented
I just cannot see how the approval bilaterals are consistent
with the standards of accreditation that the department published a few months
ago. When you read the standards of accreditation it reads like the
Commonwealth thinks that the states are going to do exactly what the EPBC Act
requires but under their legislation. When you read the approval bilaterals and
you understand the state legislation, it is clear that there is nothing like
that from the state's perspective. They are going to take their existing laws
and pretty well just say, 'Well, we'll consider the Commonwealth matters of
national and environmental significance.' How you enforce the requirements
against the state government I find very, very difficult to foresee.
The Wentworth Group of Concerned Scientists pointed to the proposed
Queensland and New South Wales offsets policies as examples of where state
policies breach the national standard. In addition, the Wentworth Group pointed
to the winding back of laws to protect native vegetation from land clearing.
Mr Sydes, Environmental Justice Australia, also pointed to threatened species
standards where it had been found that no state or territory met the standards
of the EPBC Act.
Submitters, including the Wentworth Group of Concerned Scientists,
raised concerns about accreditation of local government to determine whether a
development is likely to have a significant impact on a matter of national
environmental significance without sufficient standards being put in place and
without local government receiving the necessary expertise or resources. Ms
Walmsley, ANEDO, commented:
...local governments are probably the least resourced of all
levels of government. They have a huge workload determining their local
development assessments and so forth. Many councils do an excellent job on
minimal resources, but they simply do not have the capacity or the resources to
deal with that additional level. They do not have the mandate to consider
international obligations. This bill provides that councils may technically
approve an EPBC decision. We would say that that is inappropriate. They do not
have the resources. They do not have the expertise. It is a role for the
In addition to these concerns, Environmental Justice Australia noted
that the proposed amendments remove the protection that EPBC Act requirements must
be contained in law and create considerable uncertainty about how the new
arrangements will work. Environmental Justice Australia went on to state:
To pass to Ministers of the States and Territories the power
to make guidelines that are effectively binding determinations of rights and
responsibilities for the purposes of the EPBC Act, without even the safeguards
of the State and Territory Parliaments is a unique and very significant step.
The department provided an extensive response to concerns raised about
possible diminution of environmental standards. The department noted that draft
approval bilateral agreements with New South Wales and Queensland had been
completed and were open for public consultation. The department provided
information about the 'explicit and robust' assurance processes contained in
the bilateral agreements that will 'provide confidence to the community and
governments that the standards required of the Commonwealth through its
international obligations and the Environment Protection and Biodiversity
Conservation Act are being met'.
Dr Bacon explained further that each of the draft bilateral agreements
contain provisions for the review and audit of the operation and implementation
of the agreements. For example, there are provisions in relation to an annual
risk-based audit or evaluation of the agreement and its operation. Dr Bacon
also noted that there is also a statutory requirement under the EPBC Act for
there to be five-yearly reviews of the operation and of approval bilateral agreements.
There is also the ability for either party to the agreement to initiate an
unscheduled audit or expert review or evaluation of the operation of the
agreement. For example, if the Commonwealth had a particular concern with the
operation of an approval bilateral it could initiate an audit or evaluation of
any particular issue.
Dr Bacon went on to note that, in relation to governance arrangements,
both agreements provide for the establishment of a senior officers committee for
overseeing the implementation and smooth operation of the agreements. This
committee would be the first port of call if there were any issues or concerns
with how the agreements were operating or in relation to a particular project
or community concern. Should discussions within the senior officers committee
fail to resolve a matter, there are a series of escalating steps that are built
into each agreement and that are consistent across both agreements. The final
step in this process is the 'calling in' of a project. Dr Bacon stated:
In the very rare scenario where taking that formal step
around the issuing of a notice does not resolve a particular issue, there is
the ability for the Commonwealth minister to call in a particular project if
there is a concern that the state process might be heading towards an approval
where the requirements for decision making set out in the approval bilateral
agreement were not going to be met. If there was a risk of that occurring, the
Commonwealth minister would be able to call in a particular project.
The bilateral agreements also provide for an opt out clause for the
state decision maker to refer a project back to the Commonwealth.
Finally, Dr Bacon stated if there were a very strong and abiding concern
about the implementation of an approvals bilateral agreement, the minister, or
a state minister, would maintain a right to suspend or cancel all or part of an
In relation to concerns about accreditation of state and territory
agencies, Dr Bacon stated that:
The requirements in the EPBC Act are quite clear that the
Commonwealth minister cannot accredit a state or territory process unless the
minister is satisfied that that process cannot result in unacceptable or
unsustainable outcomes on matters of national environmental significance. That
is one of the key standards that is set out in the legislation.
Dr Bacon went on to comment that for a state or territory process to be
accredited, it needs to be able to demonstrate how the different standards in
the EPBC Act would be met. They include things like ensuring that there is an
adequate assessment of matters of national environmental significance and
ensuring that there are no unacceptable or unsustainable impacts on matters of
national environmental significance.
If a state or territory accredited process were to be changed, the agreement
would need to be redone 'with the consequent need to undergo the statutory
consultation period again as well as the disallowance process again'.
Ms Kushla Munro of the department also commented on this point and noted
that currently, the EPBC Act requires that approval decision makers meet a
technical definition of a state or an agency of a state. As a consequence:
Whether a particular decision maker meets this test is
actually quite arbitrary. For example, in some states they will meet this
definition and in others they will not. Therefore, in this proposed amendment,
it looks at: whether a particular state process is accredited depends on
whether they actually meet the higher environmental standards rather than the
identity and legal establishment of the decision maker. That is the reason why
that amendment has been proposed.
Dr Bacon also explained to the committee that the standards to be met
for a process to be accredited are detailed, with 112 different standards
covering different aspects of the assessment process, the approvals process, and
the transparency elements that must be put in place for a particular process.
Dr Bacon also noted that these considerations will be either mandatory or
relevant when the minister comes to make the accreditation decision.
In relation to state and territory standards, Dr Bacon stated that 'our initial
analysis is that states are well positioned due to the undertakings that they
have made and, in Queensland, the amendments that have been proposed'. However,
the department could not prejudge the minister's statutory accreditation
In addition, Dr Bacon noted that:
...there are a range of legislative amendments that the
Queensland government are proposing consequent to the types of undertakings
that they have made in that draft agreement that would specifically refer in
their legislation to matters of national environmental significance and the
need to undertake assessment and so on in relation to matters of national
The other example is that also in that Queensland legislation
there is an amending provision that removes the restriction that is currently
in place under Queensland legislation around judicial review. There is a
restriction on the ability of members of the community to seek judicial review
of decisions made under the particular process, one of the processes that is
proposed for accreditation under the Queensland agreement. One of the things
Queensland is doing is removing that restriction on judicial review as part of
its legislative amendments that are designed to support implementation of an
approvals bilateral agreement.
In addition, Dr Bacon pointed to the transparency undertakings in the
agreements requiring the publication of information at each step of the process
undertaken by the states.
This will assist with compliance. A further matter noted by the department was
the creation of requirements for accessibility of environmental data and
information. Dr Bacon commented that greater accessibility of environmental
data will: provide benefits to the business community through the availability
of environmental information gathered during individual environment assessment
processes; better inform decision making, for example by better informing
regulators about cumulative impacts; and assist governments more broadly to make
better informed and better targeted decisions around, for instance, investment
or various programs that are designed to have environmental benefit in the
areas of greatest need.
Ms Ilona Millar of the Wentworth Group of Concerned Scientists
acknowledged the benefits of greater transparency:
...the provision for public information and open access
protocols is going to assist with the level of transparency...[and] increased
transparency between the states and the feds would be of benefit for the review
of development applications and projects that trigger both federal and state
Capacity and readiness of states
and territories to implement approvals processes
A further matter raised in submissions was the capacity of states and
territories to take extra responsibilities envisaged under the one stop shop
approach. Many submitters argued that state and territory environmental
agencies are already working above capacity, creating delays in the processing
of assessment applications. Further responsibilities for assessment and
approval could exacerbate these problems resulting in ongoing pressure to meet
the relevant deadlines and may lead to a less vigilant approach to the
application of environmental standards.
For example, the Australia International Council on Monuments and Sites
(ICOMOS) Secretariat stated:
There is also no indication that appropriate resources will
match the new responsibilities – the danger being that States will take on an
additional burden without the provision of additional resources, straining further
what are already over-stretched heritage systems. Both of these could result in
delay in assessment and approval, a decline in the standard of decision-making
and decline in the protection of the environment.
Dr Yung En Chee also argued that as states and territories currently
lack the capacity to deliver appropriate assessment, compliance, enforcement
and auditing processes on matters for which they are currently responsible, it
is unlikely that they will have sufficient capacity to deal with the additional
burden of an approvals process based on national environmental standards.
Mr Klatovsky, Places You Love Alliance, also commented that the states
and territories lack capacity to undertake the extra responsibilities and that
there is 'ample evidence that the states are failing in even the most basic
elements of environmental compliance'.
This view was supported by the Australian Conservation Foundation which pointed
to multiple state auditor‐generals' reports, which found
that state governments have been struggling to fulfil their existing statutory
ANEDO suggested that prior to entering into approval bilateral
agreements with the state and territory governments, the Commonwealth should
ensure that states and territories have sufficient capacity to adequately
complete their assessment tasks.
Further, the Queensland Murray-Darling Committee asserted that before
delegating environmental approval powers to the state and territory governments
the Commonwealth needs to conduct a comprehensive audit of the environmental
effectiveness of and compliance by the state and territory governments.
During the Senate Budget Estimates 2014–15, Dr Bacon referred to the
inclusion of clause 10 in the New South Wales draft approval bilateral
agreement, a transitional arrangement allowing for the embedding of officers of
the department into the Department of the Environment in New South Wales to
help with the approvals process. It is expected that these embedded officers
will assist in building capacity and providing relevant expertise.
Dr Bacon also commented that much of the work involved with the
determination of approvals is already being completed at the assessment stage
and therefore there is currently a duplication of work.
Dr Bacon stated:
In relation to the capacity of states, there are currently
state and territory processes in place that deliver assessments that the
Commonwealth routinely and regularly relies on in decision making processes in
order to support Commonwealth approvals. So the Commonwealth already routinely
relies on that kind of assessment function undertaken by states.
Potential conflicts of interest
A further matter raised in evidence was the potential for conflicts of
interest to arise under the one stop shop policy.
It was argued that states are frequently the proponents of action referred to
the Commonwealth minister under the EPBC Act. The Australia Conservation
Foundation (ACF) stated that the delegation of decision making under the EPBC
... would create a situation in which a state government could
be the proponent assessor, decision-maker, and compliance enforcer of a
development proposal which impacts a MNES.
The ACF concluded that the 'conflict of interest in this situation is
clear'. In addition, the ACF argued that, even if the state were not the
proponent, 'the financial benefits to the state that would flow from a proposed
project, whether through royalties or investments, [would] make it extremely
difficult for a state to make an impartial decision in the national interest'.
In this regard, submitters pointed to decisions made by the Queensland Coordinator-General
which showed a bias for economic development and the ruling of the Western
Australian Supreme Court in relation to the gas plant at James Price Point in
the Kimberley which found conflicts of interest.
Mr Brendan Sydes of Environmental Justice Australia concluded that in
relation to conflicts of interest 'the whole model is flawed from that point of
view'. However, Mr Sydes acknowledged that the two draft bilateral approval
agreements require the state-based decision maker to notify the Commonwealth if
there is a possibility of a conflict of interest. He went on to state that 'then
it is up to the Commonwealth to determine whether they do anything about it. So
it is a fairly weak provision, for a start.' Mr Sydes concluded that:
This all just reinforces the point that it is very difficult
for the Commonwealth to exercise leadership from a distance. They are going to
be very heavily dependent upon state governments and state based approval
processes to generate the information that triggers their oversight
responsibilities, and it is a hopeless situation that is just not going to
Dr Bacon responded to these concerns. In the first instance, Dr Bacon highlighted
the fact that conflicts of interest may even arise under the current
...under the current arrangements, where the Commonwealth
Defence minister may wish to undertake an activity on a particular area of land
or as a Commonwealth action, the Commonwealth environment minister would be
making the decision. So, as with any government, there are institutional checks
and balances that are in place through the way institutions are set up and the
way different portfolios are established and managed that act as a check and
balance on those kinds of different interests that normally arise as part of
routine day-to-day business in any government system.
Dr Bacon went on to point out that the proposed amendments would result
in greater transparency in the approvals process, as well as an assurance
framework and call-in power of the minister. In relation to the assurance
framework, Dr Bacon stated:
...there is an assurance framework that is set out through
clear provisions in the draft approvals bilateral agreements that would provide
additional checks and balances around how assessment and approval decisions
would be made.
Dr Bacon also commented on the provisions in the bilateral agreements
around transparency which include the requirements and undertakings to make
information publicly available for each key point of an assessment or an
approval process that a state would be undertaking. Dr Bacon went on to state that
this 'gives a strong degree of transparency about the processes that are being followed
to ensure that they are being followed appropriately'.
As noted above, there will also be a governance mechanism in both the
NSW and Queensland agreements with the establishment of a senior officers
committee for overseeing and implementation and smooth operation of the
Dr Bacon concluded:
So our view is that all of those things together, in
combination, will provide a very high degree of confidence that the
Commonwealth will know the kinds of things that the states and territories are
assessing and considering.
Schedule 2—Flexibility in performing assessment of controlled actions
According to the department's submission, the amendments in Schedule 2
of the bill will allow the Commonwealth to complete the approval process where
an approval bilateral agreement is suspended or cancelled or ceases to apply.
Where the Commonwealth takes over the determination process, it will be
empowered to use all or part of an assessment process carried out by a state of
territory in its determination of a matter in the event. The department noted
that this would reduce delays in processing and avoid duplication allowing for
an effective transition from state processes to the processes provided for in
the EPBC Act.
Schedule 3 Part 1—Amendments relating to water resources
The Environment Protection and Biodiversity Conservation Amendment Act
2013 extended the list of matters of national environmental significance to
include a water trigger for mining or coal seam gas (CSG) projects impacting on
a water resource.
This act also had the effect of prohibiting state or territory governments from
being accredited to make the final decision on actions assessed under the water
The amendments proposed in Schedule 3 Part 1 will not affect the water trigger
itself—the water trigger will still be listed as a matter of national
However, the proposed amendments to the EPBC Act will empower the minister to
accredit state and territory processes for the purpose of approvals relating to
large coal mining and CSG developments that are likely to have a significant
impact on a water resource.
The Hon. Mr Greg Hunt MP, Minister for the Environment, in the second
reading speech to the bill, stated:
Providing a single approval process for the water trigger
will reduce the dead-weight regulatory burden on business while ensuring that
high environmental standards are fully, completely and absolutely maintained.
Robust environmental assessments of these actions will continue to be required.
It is fundamental. But they will be delivered through a single assessment and
approval process by the states. This will provide more certainty for investors
with a simpler, streamlined regulatory system which is good for Australia's
international investment reputation...
The community can then have confidence that the impacts on
water resources from large coalmining and coal seam gas developments will
continue to be subject to rigorous assessment and approval processes.
Dr Bacon also explained the intention of the proposed amendments and stated:
This amendment will allow the Australian government to
accredit state and territory processes for approving actions involving the
water trigger where the process meets national standards. This is consistent
with the approach to other matters of national environmental significance under
the EPBC Act. The water trigger itself will not be repealed. The minister can
only accredit state and territory processes for approving actions involving the
water trigger if they meet national standards, such as the requirement to avoid
unacceptable or unsustainable impacts on matters of national environmental
The amendments also propose to enable states, not currently party to the
National Partnership Agreement on Coal Seam Case and large Coal Gas Mining
development, to seek advice from the Independent Expert Scientific Committee on
Coal Seam Gas and Large Coal Mining Development (IESC) in relation to actions
that may affect the water trigger.
Ms Munro explained that the amendments will make it clear that states can to
refer matters to the IESC. The bilateral agreements oblige the states to refer
matters as well as to 'actually take into account that advice' and they will be
bound to take advice into account in their determination.
While opposing the changes allowing for a 'single approval decision', the
Wildlife Preservation Society of Queensland—Sunshine Coast and Hinterland
supported the amendment to allow all states and territories to request advice
from the IESC, as the society saw this as enabling up-to-date environmental
science to be available for assessment purposes.
Other submitters argued that given the importance of water to Australia
and the fact that water resources cross jurisdictional boundaries the water
trigger should remain closely scrutinised by the Commonwealth Government.
It was argued that state and territory governments are unable to effectively
maintain high environmental standards, either due to insufficient capacity or
conflict of interest.
Lock the Gate Alliance, for example, stated that it was strongly
supportive of the water trigger:
...because we understand that water resources cross
jurisdictional boundaries, and decisions about mining projects that have
irreversible impacts on water require the perspective that only a Commonwealth
trigger can provide.
Ms Ruchira Talukdar, ACF, further commented:
...the water trigger was put in place because of community
concerns that states are not adequately able to deal with threats to water
resources from these kinds of large coal and coal seam gas mining projects. To
actually hand that back to the states just does not make any sense, given the
reason it was put in place three years back was exactly because of concerns
that states cannot handle these matters adequately.
The Wilderness Society described the proposal as not only a broken
promise but also a potential disaster.
The Minerals Council of Australia put another view, stating that it
considered that the water trigger is unnecessary because it effectively
duplicates processes that are already in place at the state level. Ms Stutsel
went on to comment:
That duplication was further enhanced with the establishment
of the independent expert scientific committee in the national partnership
agreements, which added an additional layer of regulatory requirements on top
of industry. And then, on top of that, we have also had the water trigger under
the EPBC Act.
Further, we consider that the water trigger is inconsistent
with the original intent of the act in that it does not actually relate to a
matter of environmental significance. Instead, it relates to the specific
activities of a sector, namely large coal projects and CSG.
This view was supported by other industry groups including the Business
Council of Australia and Australian Petroleum Production & Exploration
Schedule 3 Part 2—Amendments relating to bilaterally accredited
As mentioned in Chapter 1, the purpose of this part of Schedule 3 is to
allow for the accreditation of authorisation processes that meet appropriate
EPBC Act standards. This would allow for the accreditation of all or part of an
instrument made under a law, including formal policies, plans, procedures and
Some submissions raised concerns about this amendment on the grounds
that policies and processes are not subject to public or parliamentary
Further, policies and guidelines, by their very nature, do not have force of
law, and therefore are more difficult to enforce.
In response, Dr Bacon explained that in order for an authorised process
to be accredited it must still be set out under state law‑there must be a
'legislative hook'. Furthermore, the authorised process would also have to meet
the relevant standards to be accredited and the assurance framework as outlined
above would still apply to that accreditation process.
The Property Council of Australia, who were in favour of this amendment,
This [proposed amendment] recognises that states/territories
have set up their processes in ways that best reflect the circumstances in
their state/territory. The amendments will ensure the focus of accreditation is
on the process meeting high environmental standards, rather than
technicalities...[assisting to] streamline the processes and remove duplication.
Schedule 4—Minor amendments of bilateral agreements
As outlined in Chapter 1, the proposed amendments included in Schedule 4
of the bill allow for the minister to make minor amendments to an accredited
management arrangement, authorisation process or assessment process without
triggering the parliamentary and public consultation requirements set out in
Part 5 of the EPBC Act or the requirements for a minor amendment under section
56A of the EPBC Act. However, before using this power, the minister must be
satisfied that the change will not result in a material adverse impact to a
protected matter and that the assessment or protection outcomes provided for
under the original accreditation decision will not be substantially altered.
This proposal was opposed by a number of submitters, including WWF-Australia
and the Medical Association for Prevention of War, on grounds that it will
result in amendments being made without public participation and parliamentary
ANEDO stated further that:
This amendment, along with the amendments allowing guidelines
and procedures to be accredited, could allow a State Minister to alter an
accredited procedure or guidelines (which is unlikely to require Parliamentary
approval) and have an approval granted under the revised guidelines authorised
by the Commonwealth Minister retrospectively (also without the need for
Parliamentary approval). The only restriction is the requirement that the
amendment not have a 'material adverse impact'.
The department explained the purpose of this Schedule in its submission:
The amendments relating to minor changes to a state or
territory process will provide for an efficient process so that a relevant
bilateral agreement can continue to apply to an accredited state or territory
management arrangement, authorisation process or manner of assessment, where
there are minor amendments to that arrangement, process or manner of
assessment. Without the amendments, these small changes would cause significant
uncertainty for the operation of the agreements.
Schedule 5—Miscellaneous amendments
The proposed repeal and substitution of subsection 46(1) of the EPBC Act
and the amendments to subsection 46(3) of the EPBC Act and its paragraphs have
the effect of allowing people or entities authorised by the state to make
approval decisions under bilateral agreements, clarifying that bilateral
agreements could apply to projects approved before accreditation of a state or
territory process and empowering the minister, in making an accreditation
decision, to take into account all matters considered relevant to the
Some submitters raised concerns about broadening the range of entities
allowed to approve actions.
These concerns centred on the capacity of authorised persons to act in the
national interest, the potential conflicts of interest and the consequential
negative impacts to the maintenance of strong environmental standards.
The conflict of interest, need to maintain high environmental standards and
capacity issues have all been covered above.
As reiterated by departmental representatives, the proposed amendment
would shift the focus from the identity and legal status of the decision maker
to whether that decision maker can adhere to high environmental standards. It
is the high environmental standards which are emphasised.
Dr Bacon explained that the proposed amendment was also intended to clarify
situations such as where a state or territory environmental court or tribunal
makes a determination on a merit review and goes on to substitute its decision
for that of the decision maker. Under the current legislation, if that court or
tribunal did not meet the definition of an agency its substituted decision
might not be accepted as an accredited decision.
The proposed addition of a new section 48AA to the EPBC Act would allow
the Commonwealth to take into account Commonwealth, state and territory
policies when making approval decisions under a bilateral agreement. The
department submitted that this proposed amendment would allow for bilateral
agreements to be based on the most current policies and guidelines. This
amendment is important to ensure that decisions made under bilateral agreements
incorporate the latest science and best practice approaches to environmental
management and will help facilitate continuous improvement.
The committee supports the Government's reforms to establish a one stop
shop for environmental approvals. The committee considers that this will
improve the efficiency of environmental regulation while maintaining the high
standards set out in national environmental law.
The committee notes the concerns of some submitters but considers the
assurance mechanisms to be put in place, and in particular the call in powers
of the minister, will address these concerns. The committee considers that
sufficient safeguards, as well as adequate checks and balances, are
incorporated in the proposed amendments to the EPBC Act.
The committee recommends that the Environment Protection and
Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill
2014 be passed.
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