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12 Nov 2013

Streamlining changes to the Queensland Assessment Bilateral Agreement

The Federal Environment Minister has invited comment on draft amendments to the existing assessment bilateral agreement between the Commonwealth and the State of Queensland. Comments on the draft amendments are due by 6 December 2013.

The existing assessment bilateral agreement accredits Queensland assessment processes for the purposes of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), removing the need for a separate assessment under the EPBC Act. A separate approval is still required under the EPBC Act, unless and until the action is covered by an "approvals bilateral".

The amended assessment bilateral agreement is intended to apply to projects already proceeding through an assessment process (either through the bilateral or a parallel process) as well as to new projects. The draft amendments are directed at streamlining the bilateral assessment process through use of standardised terms of reference, streamlining of assessment requirements, removing duplication in conditioning and shifting the focus to outcomes-based conditions.

Summary of amendments to the assessment bilateral agreement

The draft amendments:

  • amend the Aim of the existing agreement, to include, amongst other things, the objective of a comprehensive approvals bilateral to be in place by 18 September 2014 for the broadest range of approvals possible, subject to statutory requirements;
    require the State and the Commonwealth to take steps to improve the efficiency and effectiveness of their own administrative processes to the greatest extent possible, including:
    • greater upfront guidance to industry;
    • common streamlined generic terms of reference;
    • standard outcome-focused conditions;
    • Commonwealth officers outposted to Queensland and vice versa;
    • increased data sharing across governments and provision of industry data from EIS to the public; and
    • project control and monitoring mechanisms;
  • expand the actions covered by the assessment bilateral to include:
    • actions within the Great Barrier Reef Marine Park;
    • actions in relation to Commonwealth marine areas;
    • nuclear actions except those identified in section140A of the EPBC Act (a nuclear fuel fabrication plant; a nuclear power plant; an enrichment plant; and a reprocessing facility);
  • change the consultation requirements between the Commonwealth and the State on the assessment documentation, including that:
    • standard terms of reference agreed with the Commonwealth will be used, with consultation between the parties where there are no standard terms of reference or where substantial modifications are needed;
    • a draft assessment report will be provided once to the Commonwealth for comment, where the "draft assessment report" is limited to the chapter on impacts on matters of national environmental significance;
    • the parties are to endeavour, to the greatest extent possible, to agree on a proposed set of common outcome-focused conditions;
    • the State of Queensland may seek advice on relevant matters from Commonwealth agencies with relevant expertise, including the Great Barrier Reef Marine Park Authority, or, curiously, the Supervising Scientist under the Environment Protection (Alligator Rivers Region) Act 1978 (Cth);
  • in relation to conditions on approvals, the amendments include:
    • agreement on the objective of imposing a single set of outcome-focused conditions;
    • avoiding, to the greatest extent possible, the need for additional conditions imposed by the Commonwealth Minister;
  • include transitional arrangements to enable projects to move from a parallel Commonwealth/Queensland assessment process to a single accredited assessment process administered by the State of Queensland, subject to the proponent's agreement.

Classes of accredited actions

The assessment bilateral agreement will continue to accredit the three classes of accredited actions: the EIS process under the Sustainable Planning Act 2009 (Qld), State Development and Public Works and Organisation Act 1971 (Qld); and Environmental Protection Act 1994 (Qld).

In addition, to manage transitional arrangements, actions that were already accredited and being assessed under the Bilateral Agreement will be subject to this new Bilateral Agreement from its commencement.

The majority of the amendments to the classes of accredited actions are to update nomenclature and reflect State legislative changes since the previous agreement.

Future steps

The draft amendments to the existing assessment bilateral agreement are open for public consultation until 6 December 2013. The memorandum of understanding that has been signed between the State of Queensland and the Commonwealth indicates that the amended bilateral agreement is intended to have effect from 31 December 2013; the amendments will have effect from the date all parties sign the agreement.

It is expected that the draft of the approvals bilateral agreement between the State of Queensland and the Commonwealth will be released for public consultation in April 2014.

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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.