01 Aug 2013

The new Queensland bilateral agreement

by Kathryn Pacey

The amended bilateral bolsters the language of the previous agreement to reinforce its purpose to remove duplication and have the parties acting in a spirit of co-operation and consultation.

An amended bilateral agreement between the Federal and Queensland Governments aims to clarify their respective roles and introduce a project management approach to the approvals process.

Following a public dispute over the assessment of the $6.4 billion Alpha coal project, the Federal and Queensland Governments entered into the agreement under the Environment Protection and Biodiversity Conservation Act, effective June 14.

The amendments also came after the Council of Australian Governments (COAG) meeting in April, where six priority areas for major reform were identified. These include addressing duplicative and cumbersome environmental regulation; streamlining the process for approvals of major projects; improving assessment processes for low risk, low impact development; and best-practice approaches to regulation.

Like the previous agreement, the bilateral continues to accredit the Qld environmental impact statement (EIS) assessment processes under the following legislation for the EPBC Act:

  • the State Development and Public Works Organisation Act for declared significant projects;
  • the Environmental Protection Act; and
  • the Sustainable Planning Act.

The effect of the amended bilateral continues to be that it accredits the State's assessment process, so that a controlled action under the EPBC Act that is assessed through an accredited Qld EIS processes does not go through a separate assessment under the Act. Following the State's assessment report, a separate approval under the EPBC Act is still required.

So what’s different?

The amended bilateral bolsters the language of the previous agreement to reinforce its purpose to remove duplication and have the parties acting in a spirit of cooperation and consultation to achieve an efficient, timely and effective process for streamlined environmental assessment and decision making.

It requires the parties to develop a “proponent service delivery charter” for each assessment that sets out key deliverables, assessment methodologies, milestones and contact officers; and requires the State of Queensland to use its best endeavours to inform the proponent that an action may trigger the EPBC Act and that an accredited assessment process may be available.

Under the amended bilateral, the State of Queensland must provide to the Federal Minister for agreement the draft terms of reference, assessment documentation (e.g. the EIS) and draft assessment report. In turn, the Commonwealth is to provide details of its requirements for, and the adequacy of, information contained in these documents in accordance with set timeframes.

It requires the Federal Minister to provide advice within specific timeframes as to whether the draft assessment report provides the required information for the Federal Minister to make a decision under the EPBC Act or specify what further information is required. Where further information is required, the State of Queensland must then either provide the information; ask the Commonwealth to progress the outstanding work; or finalise the assessment report notwithstanding the advice, providing seven days notice for the dispute resolution process to be implemented.

Administrative procedures

As part of the bilateral arrangements, the Commonwealth and the State of Queensland have agreed to update the administrative procedures. The new administrative procedures provide for the details of the Proponent Service Delivery Charter, the timeframes for comments on documents, compliance monitoring where the same conditions are imposed and conflict resolution processes.

Conclusion

The objective of the bilateral is to frontload the Commonwealth’s assessment requirements through the Queensland assessment process. The amendments are designed to have the Commonwealth formally engage early and throughout the Queensland assessment process to ensure issues are identified in a timely way.

Given the Commonwealth approval occurs subsequent to the Queensland assessment report, it is to be hoped that these amendments result in early participation by the Commonwealth throughout the assessment, and minimises instances where the Federal Minister ‘stops the clock’ on the assessment process requiring further information.

The Federal Government has assessment bilateral agreements with each of the other States and Territories. COAG has indicated these agreements will be reviewed by March 2013, and it would be expected that amendments similar to those made to the Queensland agreement will be reflected in those amended agreements. The review will also be made against the background of the Federal Government being expected to introduce a range of amendments to the EPBC Act later this year.

Thanks to Patrick Cranley for his help in writing this article.

This article first appeared in WME Magazine 1 August 2013

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.