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03 Sep 2020

EPBC Act reform process underway with new Bill for approval bilateral agreements regime

By Kathryn Pacey

The Bill would establish the legal framework for streamlined approvals via approval bilateral agreements with States and Territories.

The reform process for the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is underway with the introduction into Parliament last week of a Bill to streamline the bilateral approvals process.

The Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 is the first phase of the amendments the Federal Environment Minister foreshadowed last month when releasing Professor Graeme Samuel's interim report of the independent statutory review of the EPBC Act.

The Bill is substantially the same as the bill that was introduced in 2014 to implement the then draft Approvals Bilaterals between the Commonwealth and each State and Territory. That bill failed to pass.

The Bill proposes to make the following amendments to the EPBC Act:

  • referral and approval of an action under the EPBC Act is not required if the action is in a class of actions declared by an approvals bilateral not to need approval. This applies to actions that have been, are being or are to be assessed under an approval bilateral agreement;
  • allow the Minister to "call in" assessments by declaring the action as excluded from the approvals bilateral;
  • allow completed, or partially completed, State or Territory assessment processes to be used by the Commonwealth Minister for an assessment where a bilateral agreement is suspended, cancelled or otherwise ceases to apply to an action;
  • remove the restriction on the ability for an approvals bilateral to apply to the "water trigger", however such an approval bilateral agreement will need to include an undertaking by the State or Territory to obtain and take account of advice of the Independent Expert Scientific Committee;
  • provide for additional flexibility for approvals bilaterals, including amendments to:
    • expand the range of processes that can be accredited beyond a law of a State or Territory, and extend to instruments made or processes set out wholly or partly under a law of a State or Territory;
    • allow States and Territories to make minor amendments to a bilateral agreement if the Minister is satisfied the amendment will not have a significant effect on the operation of the agreement;
    • expand the range of decision makers beyond the State or Territory, for example, to include local government.

In introducing the Bill, the Commonwealth Environment Minister stated that the Government is currently working with all States and Territories to enter into approval bilateral agreements, which will allow States "to make approval decisions that account for both state matters and matters of national environmental significance at the Commonwealth level".

The Bill does not address the legally enforceable national environmental standards that are proposed by Professor Samuel in the interim report, although that was widely expected.

The Bill is currently before the House of Representatives.

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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.