24 Oct 2013

Commonwealth plans to give States EPBC approval powers within 12 months

by Karen Trainor, Kathryn Pacey, Juliette King

While it appears that the Federal Government intends the proposed approval bilaterals to apply to the broadest range of approvals possible, the scope of the approval bilaterals may be constrained to some extent by the operation of the EPBC Act.

The Federal Government has announced a plan to achieve its proposed "one stop shop" for environmental approvals within 12 months. The objective is to accredit State approvals processes for the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), to remove the need to obtain separate State and Commonwealth approvals for agreed classes of actions.

In a media statement released last week, Environment Minister Greg Hunt said that the "one stop shop" will be achieved through a three stage process:

  1. signing a Memorandum of Understanding (MOU) with each of the willing States on key principles and confirming their cooperation on achieving a single process;
  2. updating existing agreements with States which allow them to undertake the assessment of projects under the EPBC Act (assessment bilaterals);
  3. within 12 months, signing new agreements with willing States to allow them to grant approvals under the EPBC Act (approval bilaterals).

The EPBC Act has always provided for the possibility of both assessment bilaterals and approval bilaterals, but so far only one approvals bilateral has been made which was specific to the Sydney Opera House (and now expired).

There is significant scope for the new approval bilaterals to reduce duplication, the complexity of application documentation and assessment timeframes.

First MOU signed between Commonwealth and Queensland

The first MOU between the Commonwealth and Queensland Governments was signed by the Federal and Queensland Governments last week, with other States expected to follow.

Under the Commonwealth-Queensland MOU, the parties agreed to:

  • update their existing assessment bilateral by 31 December 2013 with the goal of increasing the application of the single accredited assessment process to 100% of relevant projects;
  • pursue a comprehensive approval bilateral agreement, covering the broadest range of approvals possible, by 18 September 2014, with an agreement for major projects to be "agreed in principle" by the end of April 2014, to be followed by statutory consultation periods;
  • in the interim, and in any circumstances where approval responsibility is retained by the Commonwealth, develop joint protocols to minimise the need for specific conditions to be applied by the Commonwealth over and above those applied by Queensland as part of its State approval process; 
  • pursue active, integrated project management for major projects where both Commonwealth and State assessment and approval responsibilities are involved;
  • when the approval bilateral agreement is in place – agree an approach to manage the transition of projects being assessed under the existing assessment bilateral; and
  • provide greater upfront guidance to industry and develop a common streamlined Terms of Reference for EIS processes.

The MOU states that when undertaking assessments, Queensland is to ensure that matters of national environmental significance (MNES) under the EPBC Act are separately identified and assessed and take into account relevant Commonwealth guidelines, plans and policies. Likewise, when carrying out approval powers, Queensland's decisions are to be consistent with relevant EPBC statutory guidelines, plans and policies.

Parliamentary process

Importantly, under the EPBC Act, approval bilaterals must be prepared in accordance with either a "bilaterally accredited management arrangement" or a "bilaterally accredited authorisation process" , which require accreditation by the Environment Minister. However, such a document must be laid before both Houses of Parliament for at least 15 sitting days each and cannot be accredited by the Minister if either House passes a resolution to disallow it.

Challenges for approval bilaterals

While it appears that the Federal Government intends the proposed approval bilaterals to apply to the broadest range of approvals possible, the scope of the approval bilaterals may be constrained to some extent by the operation of the EPBC Act, in particular:

  • the EPBC Act currently disallows the new water trigger for coal seam gas and large coal mining projects from being the subject of an approvals bilateral agreement. If the water trigger is to be included in the "one stop shop" approvals process, amendments to the EPBC Act will be required;
  • an approvals bilateral can only be made if the Minister is satisfied that certain criteria are met, including criteria for particular MNES. For example, the Minister may enter into a bilateral agreement containing a provision relating to a listed threatened species or ecological community only if, amongst other things, the Minister is satisfied the provision is not inconsistent with Australia's obligations under various international conventions, and the agreement will promote the survival and/or enhance the conservation status of each species or community to which the provision relates. Substantial amendments may be required to State legislation to ensure decision making criteria and outcomes will align with the EPBC Act. This will require a detailed due diligence exercise by the Commonwealth and State Governments; and
  • an approvals bilateral cannot apply to an action in the Great Barrier Reef Marine Park unless the agreement expressly provides otherwise. The Commonwealth and Queensland will therefore need to specifically consider whether a Queensland approval bilateral is to apply to the Great Barrier Reef.

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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.