Bills Digest No.
18, 2020–21
PDF version [1MB]
Sophie Power
Science, Technology, Environment and Resources Section
14
October 2020
Contents
The Bills
Digest at a glance
Purpose of
the Bill
Structure and
overview of the Bill
Background
Committee
consideration
Policy
position of non-government parties/independents
Position of
major interest groups
Financial
implications
Statement of
Compatibility with Human Rights
Key issues
and provisions
Concluding
comments
Date introduced: 27
August 2020
House: House
of Representatives
Portfolio: Environment
Commencement: Schedules
1–4 and items 1, 2 and 4–10 of Schedule 5 commence the day after
Royal Assent; item 3 of Schedule 5 commences immediately after item 11 of
Schedule 3.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at October 2020.
The Bills Digest at a glance
Purpose of the Bill
- The
Bill proposes to amend the Environment Protection and Biodiversity
Conservation Act 1999 (the EPBC Act) to expand and clarify
provisions which allow the Commonwealth to delegate environmental approval
powers to the states and territories through bilateral agreements (to create
‘single touch’ environmental approvals).
Background
- The
Bill is almost identical to a Bill introduced into Parliament in 2014, which
lacked sufficient support in the Senate and subsequently lapsed in 2016. That
Bill aimed to facilitate the Government’s ‘one-stop shop’
policy for environmental approvals (now referred to as ‘single
touch’ environmental approvals).
- The
Bill has been introduced during a ten year independent statutory review of the EPBC
Act. The review’s Interim Report was released in June 2020, with a
final report due in October 2020.
Key issues and stakeholder concerns
- Stakeholders,
including conservation groups and the Law Council of Australia, are concerned
that the Bill is being rushed through Parliament before finalisation of the independent
statutory review. They consider that the Bill should be referred to a Senate
Committee for inquiry.
- Environment
groups do not support the Bill as a result of a number of concerns including:
- the
Bill replicates a 2014 Bill and does not address key recommendations in the Interim
Report, including in particular the development of national environmental
standards prior to the delegation of approval powers to states and territories
- the
accreditation of state and territory approval processes may create greater
complexity
- the
Commonwealth should provide strong leadership on environmental matters,
particularly in relation to Australia’s obligations under international environmental
agreements
- the
Bill proposes to remove the restriction on approval bilateral agreements covering
actions involving coal seam gas development or large coal mining development
that are likely to have a significant impact on a water resource (known as the
‘water trigger’)
- state
and territory governments do not have sufficient resourcing, nor adequately
robust processes, to assess and approve projects that may significantly impact
on matters of national environmental significance
- state
and territory governments may have a conflict of interest in approving
developments in which they are involved or which they actively support.
- Industry
groups appear not to have directly commented on this Bill, but have for many
years called for measures to remedy duplication between the EPBC Act and
state and territory approval processes, which they consider causes additional
delays and costs for proponents of relevant projects. In responses to the EPBC
Act review’s Interim Report, many industry groups supported the Interim
Report’s recommendation for clear national environmental standards.
- A
report by the Australian National Audit Office in June 2020 found that the
administration of the EPBC Act by the Department has been ineffective, with
a large increase in delays in decision-making under the EPBC Act since
2014–15. It has been suggested that these delays are largely a result of staffing
and funding cuts in the Department administering the EPBC Act.
Purpose of
the Bill
The purpose of the Environment
Protection and Biodiversity Conservation Amendment (Streamlining Environmental
Approvals) Bill 2020 (the Bill) is to amend the Environment
Protection and Biodiversity Conservation Act 1999 (the EPBC Act)
to expand and clarify provisions which allow the Commonwealth to delegate
environmental approval powers to the states and territories through bilateral
agreements
The Bill largely replicates the Environment
Protection and Biodiversity Conservation Amendment (Bilateral Agreement
Implementation) Bill 2014 (2014 Bill), which was introduced into Parliament
in 2014, but lapsed in 2016 at the prorogation of parliament for the federal
election in 2016.[1]
Structure and
overview of the Bill
The Bill has five Schedules:
- Schedule
1 proposes amendments to clarify that actions covered by approval bilateral
agreements do not need to be referred to the Commonwealth
- Schedule
2 contains amendments to enable the assessment and approval of actions to be
completed in certain situations, such as where a bilateral agreement with a state
or territory is suspended or cancelled
- Schedule
3 has two parts:
- Part
1 proposes to remove the restriction relating to the ‘water
trigger’ so that actions involving coal seam gas development or large
coal mining development that are likely to have a significant impact on a water
resource can be subject to an approval bilateral agreement and
- Part
2 would extend the types of authorisation processes that can be accredited by
approval bilateral agreements
- Schedule
4 contains amendments to enable states and territories to make changes to
management arrangements or authorisation processes without the need to amend an
approval bilateral agreement, where the Minister makes a determination and is
satisfied that change will not have a material adverse impact on a matter
protected under the EPBC Act, or on a person's ability to participate in
the authorisation process and
- Schedule
5 contains miscellaneous amendments, including to enable a broader range of entities
such as local governments to approve actions under approval bilateral agreements.
Background
The EPBC Act is currently administered by the
Department of Agriculture, Water and the Environment (the Department).
The EPBC Act provides that certain actions
(including projects, developments, undertakings or activities)[2],
known as ‘controlled actions’, must be referred for environmental assessment
and approval by the Commonwealth Environment Minister. Under the EPBC Act,
a ‘controlled action’[3]
is an action that has, will have or is likely to have a significant impact on:
- a
‘matter of national environmental significance’[4]
- the
environment on Commonwealth land[5]
or
- the
environment, where the action is undertaken by the Commonwealth Government or a
Commonwealth agency.[6]
The current matters of ‘national environmental
significance’, which are largely based on Australia’s
responsibilities under international agreements dealing with environmental
protection, are set out in Part 3 of the EPBC Act as follows:
- world
heritage properties
- national
heritage places
- wetlands
of international importance
- listed
threatened species and ecological communities
- listed
migratory species
- Commonwealth
marine areas
- the
Great Barrier Reef Marine Park
- nuclear
actions (such as uranium mines) and
- water
resources in relation to large coal mining and coal seam gas developments
(known as the ‘water trigger’).[7]
A more detailed overview of the EPBC Act is
available in the Parliamentary Library’s Environment
Protection and Biodiversity Conservation Act 1999: A Quick Guide.[8]
Environmental assessment processes
Actions that require approval under the EPBC Act
undergo an environmental assessment process, as set out in the EPBC Act,
and supplemented by the Environment Protection
and Biodiversity Conservation Regulations 2000. A useful flowchart
of the environmental assessment process is available on the Department’s
website.[9]
There are three key stages to this process:
1.
Referral: A proposed action is first ‘referred’ by
the proponent to the Commonwealth Environment Minister for his or her decision
as to whether the action is a ‘controlled action’: that is, whether
it requires formal assessment and approval under the EPBC Act. This decision
is based on whether the proposed action is likely to have a significant impact
on one or more of the matters of national environmental significance (as listed
above) or on the environment if it involves Commonwealth land or a Commonwealth
agency. If approval is required, then the proposed action proceeds to the
assessment and approval stage.
2.
Assessment: The Minister (or his or her delegate) determines the
method of assessment for the controlled action, based on considerations set out
in the EPBC Act and Regulations. The assessment methods include: an
accredited assessment approach, assessment based on information contained in
the referral to the Commonwealth, assessment based on preliminary
documentation, a public environment report (PER), an environmental impact
statement (EIS) or a public inquiry. The appropriate assessment approach will
depend on a range of matters, such as the scale and nature of an action’s
impacts.
In practice, assessment
bilateral agreements are in place with all states and territories (as discussed
below). This means that many projects are assessed under accredited state or
territory processes, but the Commonwealth Environment Minister makes the final
decision as to whether or not to approve the action (and whether the approval
is subject to conditions).
3.
Approval: Once a project has been assessed, the Commonwealth
Environment Minister decides whether to approve an action under the EPBC Act,
and the conditions to attach to that approval.
Assessment and approval may also be required at the state
or territory level under relevant state or territory legislation. Some industry
groups argue this is unnecessary duplication which, in turn, results in
additional costs and delays for those projects.[10]
In an attempt to minimise this duplication, the EPBC Act allows the
Commonwealth to enter into bilateral agreements with the states and territories,
as discussed in the next section.
Bilateral agreements
Bilateral agreements are made under Part 5 of the EPBC
Act and enable the Commonwealth to accredit relevant state and territory
processes, to effectively delegate the assessment and/or approval of actions
which would otherwise require assessment and approval under the EPBC Act.
The aim is to minimise duplication in the assessment and approval process for
actions which require approval under both Commonwealth and state or territory
laws.
There are two types of bilateral agreements:
- assessment
bilateral agreements, made under subsection 47(1) of the EPBC Act, which
provide for a single assessment process by accrediting a state or territory
process to assess the environmental impacts of a proposed action.[11]
After assessment, the proposed action still requires two separate approval
decisions from the Commonwealth (under the EPBC Act) and relevant state
or territory frameworks
- approval
bilateral agreements, which can accredit the assessment and approval
process of a state or territory.[12]
A proposed action taken in accordance with a process accredited under an
approval bilateral agreement does not require approval by the Commonwealth
Minister.[13]
Approval bilateral agreements cannot currently cover projects involving the
water trigger.[14]
Assessment bilateral agreements have been made with all
states and territories.[15]
However, as discussed later in this Digest, state and territory approval
processes have not been accredited under approval bilateral agreements to date.[16]
Approval bilateral agreements—accreditation
thresholds
Under the EPBC Act, approval bilateral agreements may
declare that certain actions do not need approval from the Commonwealth
Environment if they are taken in accordance with either a ‘bilaterally
accredited management arrangement’ or a ‘bilaterally accredited
authorisation process’. Under section
29 of the EPBC Act, an action taken in accordance with an accredited
management arrangement or authorisation process under an approval bilateral
agreement will not require the approval of the Commonwealth Environment
Minister.
Section
46 of the EPBC Act is one of the key provisions relating to approval
bilateral agreements, and provides for the Commonwealth Environment Minister to
accredit a management arrangement or authorisation process of a state or
territory.
However, sections 50–54 of the EPBC Act also
contain a number of requirements which must be satisfied before approval
bilateral agreements can be entered into and/or before the Minister can
accredit a management arrangement or authorisation process under section 46.
So, the Minister must be satisfied that the bilateral agreement accords with
the objects of the EPBC Act (as set out in section 3 of the EPBC Act, these
include the principles of ecologically sustainable development along with the
precautionary principle).[17]
In addition, the Minister may only accredit a state or territory management
arrangement or an authorisation process if the Minister is satisfied that the relevant
arrangement or process:
- is
not inconsistent with Australia's obligations under the relevant international
agreement (such as the World Heritage Convention[18])
- will
promote the management of the protected areas in accordance with the Australian
World Heritage management principles, National Heritage management principles
or the Australian Ramsar management principles[19]
- promotes
the survival and/or enhances the conservation status of any relevant listed
threatened or migratory species[20]
and is not inconsistent with any relevant recovery plan or threat abatement
plan[21]
- provides
for adequate assessment of the impacts of the action on each matter of national
environmental significance protected under the EPBC Act[22]
and
- that
actions approved in accordance with an accredited management arrangement or
authorisation process will not have unacceptable or unsustainable impacts on
any of the matters protected by the EPBC Act.[23]
These threshold requirements are not changed by this Bill.
The Minister must table a copy of the relevant management
arrangement or authorisation process in Parliament prior to accreditation, and
the relevant accreditation is subject to disallowance by either House of
Parliament.[24]
This requirement also remains unchanged by this Bill.
History of approval bilateral
agreements
The EPBC Act has had provisions for both assessment
and approval bilateral agreements since it first came into force in 2000,
although they were one of the more controversial aspects of the EPBC Act
at the time of its original passage through Parliament.[25]
As outlined earlier, approval bilateral agreements have never been implemented.
In 2012, following the first ten year review of the EPBC
Act, the Labor Government signalled its preparedness to negotiate
the transfer of environmental approval powers to states and territories as part
of its response to the review.[26]
However, in December 2012, then Prime Minister Julia Gillard subsequently
indicated that more work was needed to progress such bilateral agreements to
ensure that high environmental standards would be consistently maintained
across all jurisdictions. The Prime Minister also reportedly said that it was
necessary for the Commonwealth to maintain powers over World Heritage,
Commonwealth waters and nuclear issues.[27]
She also expressed concern that there was too much variation between states:
“I became increasingly concerned we were on our way to
creating the regulatory equivalent of a Dalmatian dog,” she said. “For
businesses that would be the worst of all possible worlds. It would leave them
with more litigation. We would have projects that were identical around the
country subject to different treatment.”[28]
‘One-stop shop’ reforms[29]
Following a change of government at the 2013 federal
election, approval bilateral agreements were placed back on the agenda as part
of the Government’s ‘one-stop-shop’ policy of having a single
environmental assessment and approval process on matters of national
environmental significance.[30]
In October 2013, the Environment Minister, Greg Hunt,
announced that the Government had approved a framework consisting of a three
stage process for achieving a one-stop-shop to streamline environmental approvals.[31] First, a Memorandum of Understanding was
signed with each state and territory in December 2013.[32]
In December 2013, COAG also agreed to work to develop bilateral agreements for
‘one-stop-shops’ for environmental approvals in each state.[33]
The second stage involved new or revised assessment
bilateral agreements, which were in place with each state and territory by December
2014.[34]
The final stage involved agreement on bilateral approvals with ‘willing
states’ and, while draft approval bilateral agreements were published for
some states and territories in 2014–15, none were ever finalised.[35]
Notably, subsections 65(2) and (3) require the Minister to
review the operation of a bilateral agreement at least once every five years,
and to publish the report of that review in accordance with the Regulations
(which require publication in the Gazette and on the internet).[36]
As such, it appears that many of the current assessment bilateral agreements
are overdue for review.
In March 2014, the Commonwealth Government released a
policy document, Standards
for Accreditation of Environmental Approvals under the Environment Protection
and Biodiversity Conservation Act 1999, which sets out environmental
standards and considerations for accreditation of state and territory approval
processes through bilateral agreements.[37]
Bilateral Agreement Bill 2014
In May 2014, the Environment
Protection and Biodiversity Conservation Amendment (Bilateral Agreement
Implementation) Bill 2014 (the 2014 Bill) was introduced in Parliament to
amend the EPBC Act and aimed to ‘facilitate the efficient and
enduring implementation of the Australian government's one-stop shop reform for
environmental approvals’.[38]
That Bill was the subject of inquiry and report by the Senate Environment and
Communications Legislation Committee.[39]
Both ALP and Greens Senators issued dissenting reports and did not support the
Bill.[40]
As indicated earlier in this Digest, this current Bill largely
replicates that 2014 Bill. The 2014 Bill passed the House of Representatives in
June 2014, with some government amendments (which have been incorporated into
this Bill). However, the 2014 Bill never passed the Senate and lapsed in April
2016.[41]
Relevant reviews since the 2014
Bill
Since the 2014 Bill lapsed, there appears to have been
little progress on the development of approval bilateral agreements. However, a
number of reviews have expressed concerns about the administration and
implementation of the EPBC Act. This includes:
- in
2017, an independent review of the water trigger which found, among other
matters, that the trigger is an appropriate measure to address the regulatory
gap that was identified at the time of its enactment.[42]
Relevant aspects of this review are considered in the ‘Key issues and
provisions’ section of this Digest
- in
2018, a review to examine the impact of the EPBC Act on
agriculture and food production.[43]
This followed concerns reportedly being expressed by some farmers about
duplication and complexity under the EPBC Act.[44]
A final report
was released in June 2019 and found that the number of agricultural referrals
under the EPBC Act had been relatively low.[45]
Among other matters, the report found that the Department is
‘insufficiently resourced to enable timely, appropriate and effective
assistance to be provided to project proponents in the agriculture
sector’.[46]
The report made 22 recommendations which it considered would ‘improve
harmonisation between state and territory and Australian Government
legislation’[47]
- in
2019, a Senate Committee issued an Interim Report for its inquiry into
Australia’s faunal extinction crisis, which concluded that there are
‘serious questions about whether the EPBC Act is still
fit for purpose and is in fact achieving [its] objectives’.[48]
The majority report of the Committee recommended new legislation to replace
the EPBC Act as well as an independent Environment Protection
Agency (EPA) ‘with sufficient powers and funding to oversee compliance
with Australia's environmental laws’.[49]
Australian National Audit Office
(ANAO) report
On 25 June 2020, the Australian National Audit Office (ANAO)
issued a report on the administration of referrals, assessments and approvals
of controlled actions under the EPBC Act.[50]
The report described the Department’s administration of the Act in this
area as ‘not effective’:
Referrals and assessments are not administered effectively or
efficiently. Regulation is not supported by appropriate systems and processes,
including an appropriate quality assurance framework. The department has not
implemented arrangements to measure or improve its efficiency.
The department is unable to demonstrate that conditions of
approval are appropriate. The implementation of conditions is not assessed with
rigour. The absence of effective monitoring, reporting and evaluation
arrangements limit the department’s ability to measure its contribution
to the objectives of the EPBC Act.[51]
Among other matters, the report found compliance with
statutory timeframes has dropped significantly in recent years (see Figure below):
This decrease was most pronounced
from 2014–15 to 2018–19, with the proportion of referral, assessment
method and approval decisions made within statutory timeframes decreasing from
60 per cent in 2014–15 to five per cent in 2018–19. The average
time taken for approval decisions increased from 19 days over the statutory
timeframe in 2014–15 to 116 days over the statutory timeframe in
2018–19.[52]
Source:
ANAO, Referrals, assessments and approvals, op. cit., p. 51.
The report found that the ‘reasons for exceeding
statutory timeframes vary’ and may include:
… the department not considering that it has
satisfactory information to assess the proposed action, administrative delays,
disagreement between the department and the regulated entity over proposed
conditions, and delays in state or territory approvals where actions are also
subject to state or territory approval requirements. The department does not
systematically record or report on the reasons for delays.[53]
In this context, the Government provided $25 million over
two years to the Department in December 2019 for ‘Busting Congestion in
the Environmental Assessment Process’: that is to enable the Department ‘to
work through the backlog of environmental approval applications, with a focus
on major projects’.[54]
The Minister subsequently announced:
In the December quarter this year
just 19 per cent of key assessment decision points were being made on time.
By March 2020 we are making 87
per cent on time and the Department is on track to make that figure 100 per
cent by June 2020, with no relaxation of any environmental safeguards …
In December 19, there was also a
backlog of 78 overdue key decisions. That backlog has already been reduced by
47 per cent and is on track to be cleared by the end of this year.[55]
More recently, the 2020–21 Budget provided an
additional $36.6 million over two years from 2020–21 to ‘maintain
the timeliness of environmental assessments and undertake further reforms’
under the EPBC Act.[56]
This includes $12.4 million to ‘maintain the momentum’ established
through the $25 million provided in December 2019.[57]
However, some
commentators have suggested the increased delays in decision-making under
the EPBC Act are a result of reduced resources and staffing in the
Department, and any additional funding is ‘merely a reversal of previous
funding cuts’.[58]
EPBC Act review and Interim Report
The EPBC Act contains a statutory
requirement to review the operation of the Act every ten years.[59]
The last review (known as the ‘Hawke Review’) reported in
2009.[60]
The Government response to the review was released in 2011,[61]
although legislation to implement its recommendations was never introduced
prior to the change of government in 2013.
On 29 October 2019, the Minister announced the
commencement of the next independent statutory review, led by Professor Graeme
Samuel, to report to the Minister within 12 months.[62]
The review released a discussion paper
for public consultation in November 2019.[63]
Nearly 30,000 submissions were received, including more than 3,000
‘unique submissions’ and ‘around 26,000 largely identical contributions’.[64]
Following this consultation, the review released an Interim Report
on 20 July 2020 ‘to share and test thinking’.[65]
The Interim Report found the EPBC Act to be ‘ineffective and
inefficient’[66]
as it:
… does not enable the Commonwealth to play its role in
protecting and conserving environmental matters that are important for the
nation. It is not fit to address current or future environmental challenges.[67]
The Interim Report noted a ‘lack of trust’ in
the EPBC Act: the community does not trust the Act to deliver effective
protection of the environment, while industry views the Act as
‘cumbersome, duplicative and slow’.[68]
To build confidence, the Interim Report suggested that an ‘independent
cop on the beat is required to deliver rigorous, transparent compliance and
enforcement’.[69]
The Interim Report also found that ‘the EPBC Act had
failed to fulfil its objectives as they relate to Indigenous Australians’,
and recommended that:
The suite of national-level laws that protect Indigenous
cultural heritage in Australia needs comprehensive review. Cultural heritage
protections must work effectively with the development assessment and approval
processes of the EPBC Act.[70]
National Environmental Standards
The Interim Report suggested that ‘fundamental
reform is required’ and that ‘new, legally enforceable National
Environmental Standards should be the foundation’ of that reform.[71]
The report proposed that the Standards should be regulatory instruments which
set clear, strong, specific, measurable and granular rules which focus on
outcomes, not process.[72]
The report suggested that the Commonwealth should make these
standards ‘through a formal process set out in the EPBC Act’.[73]
Professor Samuel described the development of National Environmental Standards
as a ‘priority reform measure’.[74]
As a first step, the Interim Report suggested Interim standards be developed
‘to facilitate rapid reform and streamlining’.[75]
To this end, the Interim Report provided ‘prototype Standards’ for
matters of national environmental significance in Appendix 1 of the
report as a ‘starting point to stimulate discussion’:
The Review acknowledges that further work is needed to
test and refine the Standard. It is based on key principles such as
prevention of environmental harm and non-regression, and has been developed
using existing policy documents and legal requirements. The prototype shows
that an Interim National Environmental Standard for [Matters of National
Environmental Significance] could be developed quickly and would immediately
provide greater clarity and consistency for decision-making.[76]
[emphasis added]
Reducing duplication
The Interim Report found that there is duplication between
the EPBC Act and state and territory regulatory frameworks for
development assessment and approval, and efforts to harmonise and streamline
with these state and territory frameworks have not gone far enough.[77]
The Interim Report proposed that to remove duplication
between the EPBC Act and state and territory systems, decisions should
be devolved to other jurisdictions, where they demonstrate they can meet the
National Environmental Standards.[78]
The Interim Report further suggested that the ‘durability
of devolved decision-making’ should be improved.[79]
In this context, the Interim Report notes that the EPBC Act already
enables approval bilateral agreements to be entered into with states and
territories, but that approval bilateral agreements have never been
implemented.[80]
The Interim Report also refers to the unsuccessful amendments proposed by the
Commonwealth Government in 2014 which it suggests were designed to
‘provide a more enduring framework for devolution’.[81]
The report suggests that ‘important amendments are needed to’:
- enable
the Commonwealth to complete an assessment and approval if a state or territory
is unable to
- ensure
agreements can endure minor amendments to state and territory settings, rather
than requiring the bilateral agreement to be remade (and consequently be
subject to disallowance by the Australian Parliament on each occasion).
These and other necessary amendments have failed to garner
support in the Australian Parliament. In 2015 the Parliament did not support
these amendments, in response to significant community concerns about the
ability of states and territories to uphold the national interest when applying
discretion in approval decisions.[82]
At the same time, the Interim Report suggests that proposed
national environmental standards (discussed further below) should alleviate
some of the concerns that related to past legislation:
Previous attempts to devolve decision-making focused too
heavily on prescriptive processes and lacked clear expectations and thresholds
for protecting the environment in the national interest. The National
Environmental Standards proposed by this Review provide a legally binding
pathway for greater devolution, while ensuring the national interest is upheld.[83]
The report also recognised that the Commonwealth would
need to ‘retain its capability to conduct assessments and
approvals’ in certain circumstances, including:
… where the Commonwealth provides sole jurisdiction,
where accredited arrangements are not in place (or cannot be used), at the
request of a jurisdiction, or when the Commonwealth exercises its ability to
step in on national interest grounds.[84]
Interim Report proposed ‘phase
1 reforms’
Chapter 10 of
the Interim Report proposed a ‘reform pathway’, involving
‘three key phases’. The report suggested five areas of focus for the
first phase of reforms as follows:[85]
- reduce
points of clear duplication, inconsistencies, gaps and conflicts in the Act[86]
- issue
Interim National Environmental Standards to set clear national environmental
outcomes against which decisions are made
- improve
the durability of devolved decision-making, to deliver efficiencies in
development assessments and approvals, where other regulators can demonstrate
they can meet Interim National Environmental Standards
- implement
early steps and key foundations to improve trust and transparency in the Act,
including publishing all decision materials related to approval decisions and
- legislate
a complete set of monitoring, compliance, enforcement and assurance tools
across the Act.[87]
Other longer term reforms proposed in the Interim Report
are not discussed in this Digest in detail, but included, for example, the
establishment of a ‘properly resourced’ independent regulator and a
‘comprehensive redrafting of the EPBC Act’ to focus on outcomes
rather than process.[88]
Recent Government announcements
In a speech to a Committee for Economic Development of
Australia (CEDA) conference on 15 June 2020, the Prime Minister
flagged cutting approval times for big projects from the current 40 days to 30
days by the end of this year. He also announced a ‘priority list of 15
major projects that are on the fast-track for approval under a bilateral model
between the Commonwealth, states and territories’.[89]
The Departmental website states these 15 major projects
‘will be subject to the same requirements under the EPBC Act as
all referred projects’, but the ‘Australian Government will work
with the states and territories to establish joint assessment teams to progress
these projects’ to reduce duplication in assessment processes between the
two levels of government.[90]
On 20 July 2020, following the release of the EPBC Act review
Interim Report, the Minister for the Environment stated that the Commonwealth
will ‘prioritise the development of new national environmental standards,
further streamlining approval processes with State governments and national
engagement on Indigenous cultural heritage’.[91]
She further stated that the Commonwealth will ‘commit to the following
priority areas on the basis of the interim report’:
- Develop
Commonwealth led national environmental standards which will underpin new
bilateral agreements with State Governments.
- Commence
discussions with willing states to enter agreements for single touch approvals
(removing duplication by accrediting states to carry out environmental
assessments and approvals on the Commonwealth’s behalf).
- Commence
a national engagement process for modernising the protection of indigenous
cultural heritage, commencing with a round table meeting of state indigenous
and environment ministers …
- Explore
market based solutions for better habitat restoration that will significantly
improve environmental outcomes while providing greater certainty for business.
The Minister will establish an environmental markets expert advisory group.[92]
She also noted that the Commonwealth would ‘take
steps to strengthen compliance functions and ensure that all bilateral
agreements with States and Territories are subject to rigorous assurance monitoring’.[93]
However, at the same time, the Minister ruled out the establishment of an
independent regulator as well as any expansion of the EPBC Act in
relation to the regulation of greenhouse gas and other emissions.[94]
The Minister further noted that the Interim Report ‘raises
a range of other issues and reform directions’, which would be the
subject of further consultation.[95]
The Minister concluded that the Government would monitor the review’s
progress towards the final report, while continuing ‘to improve existing
processes as much as possible’.[96]
In a subsequent interview
on ABC radio on 21 July, the Minister indicated that the prototype environmental
standards would be part of the legislation to be introduced.[97]
She also stated that the Interim Report has ‘has made clear
recommendations that we can start to implement now’.[98]
On 24 July 2020, the Prime Minister announced that the new
National Cabinet had ‘agreed to move to single-touch environmental
approvals underpinned by national environmental standards for Commonwealth
environmental matters’:
Some states are able to transition to this system faster than
others. The Commonwealth will move immediately to enter into bilateral approval
agreements and interim standards with the states that are able to progress now.
We will simultaneously be developing formal national
standards through further public consultation. The National Cabinet also
endorsed the list of 15 major projects for which Commonwealth environmental
approvals will be fast-tracked.
For major projects at the start of the approvals process, we
will target a 50 per cent reduction in Commonwealth assessment and approval
times for major projects, from an average of 3.5 years to 21 months.[99]
On 7 August 2020, the Government published notices of
intention to develop draft approval bilateral agreements with all states and
territories.[100]
In welcoming the passage of the Bill through the House of
Representatives on 3 September,[101]
the Minister for the Environment stated that the amendments are:
… the start of a process that is entirely consistent
with Professor Graeme Samuel’s interim report and his findings in relation
to an Act that is long overdue for reform.
… There will be more reforms to follow. We will develop
strong Commonwealth-led national environmental standards which will underpin
new bilateral agreements with State Governments.[102]
Committee
consideration
The Senate Selection of Bills Committee considered the
Bill and was unable to reach agreement.[103]
A motion by Senator Hanson-Young to amend the Selection of Bills Committee report,
which would have referred the Bill to the Senate Environment and Communications
Legislation Committee for inquiry and report by 30 November 2020, was
unsuccessful.[104]
The Government did not support the motion, with Senator Cormann stating that
the Bill is ‘a carbon copy of a bill into which there has already been an
inquiry’.[105]
Subsequent motions by Senator Hanson-Young to refer the
Bill to the Senate Environment and Communications Legislation Committee for
inquiry and report were also unsuccessful.[106]
Senate Standing Committee for the
Scrutiny of Bills
The Senate Scrutiny of Bills Committee raised concerns in
relation to item 9 in Schedule 5, which inserts proposed section 48AA
into the EPBC Act to provide that a bilateral agreement may apply, adopt
or incorporate an instrument or other writing as in force or existing from time
to time, even if the instrument or other writing does not yet exist when the
agreement is entered into.[107]
The Explanatory Memorandum suggests this will ensure that
the operation of a bilateral agreement is preserved when instruments and policy
documents are updated, rather than requiring that the agreements are amended
each time an instrument or document that is referred to, applied, adopted or
incorporated in a bilateral agreement is updated.[108]
The Explanatory Memorandum further notes:
Bilateral agreements may make reference to a range of
Commonwealth, State or Territory instruments, policies or other documents
including, for example, significant impact guidelines and species survey
guidelines. State or Territories may also have policies that are specifically
relevant to their assessment and approval processes.
To ensure ongoing continuous improvement and to allow for the
maintenance of high standards for environmental approval, the Commonwealth or a
State or Territory may update or revise instruments and policies from time to
time. The application of the most current instruments and policies reflects the
importance of ensuring that environmental assessment and approval decisions are
based on the best scientific information available so that actions assessed and
approved by the State or Territory under the bilateral agreement will not have
unacceptable or unsustainable impacts on matters of national environmental
significance.[109]
The Scrutiny of Bills Committee noted this explanation,
but requested more detailed advice from the Minister as to:
… the type of documents that it is envisaged may be
applied, adopted or incorporated by reference under proposed section 48AA and,
in particular, whether these documents will be made freely available to all
persons interested in the law.[110]
In response, the Minister advised that the types of
documents that may be incorporated into bilateral agreements would include
Commonwealth legislative instruments and policies (such as threatened species
recovery plans), as well state or territory legislation, policies and plans.
The Committee welcomed the Minister’s advice that the relevant policies
and plans were expected to be made freely available, but noted there is no
requirement for such documents to be made freely available on the face of the
primary legislation. The Committee requested further advice from the Minister
as to whether the Bill could be amended to require that any document
incorporated into a bilateral agreement must be made freely available.[111]
Policy
position of non-government parties/independents
ALP Senators, along with Senators Griff, Lambie and
Patrick voted in favour of a Greens motion that there should be no debate on
the Bill until after the tabling of either the final report of the EPBC Act
review, or the Interim National Environmental Standards.[112]
The same Senators also voted in favour an unsuccessful motion to refer the Bill
to the Senate Environment and Communications Legislation Committee for inquiry
and report.[113]
ALP
The ALP does not support the Bill.[114]
The ALP’s Shadow Minister for the Environment and Water, Terri Butler,
has described the Bill as a ‘backwards-looking failed Abbott law rehash’.[115] Ms Butler noted that the Interim Report’s
proposals were ‘contingent on the creation of strong Interim National
Environmental Standards’. The ALP considers that the Government:
… should not pursue amendments until the interim
standards are finalised and made available to the people of Australia.
Without national environment standards recognised in law,
each state jurisdiction could negotiate different standards into each
agreement, which would increase job and investment delays and become a
regulatory nightmare. [116]
Ms Butler has suggested that the Government should introduce
strong national environmental standards, establish a genuinely independent
‘cop on the beat’ for Australia’s environment and, in light
of the recent ANAO report, fix the ‘delays caused by their massive
funding cuts’.[117]
The Greens
The Greens do not support the Bill. Leader of the Greens, Mr Adam Bandt, spoke against the
legislation in his second reading speech, suggesting:
… the federal government
is passing their responsibilities for protecting our environment onto the
states, where there are weaker laws and fewer environmental protections ... We
need more environmental protections, not less…. We need strong national
environmental standards and an independent regulator who can properly enforce
environmental protections.[118]
As noted in the ‘Committee consideration’
section of this Digest, Greens Senator Hanson-Young unsuccessfully moved
motions in the Senate to refer the Bill to the Environment and Communications
Legislation Committee for inquiry and report.[119]
In moving the first motion, Senator Hanson-Young suggested that ‘it is
absolutely essential’ to have ‘proper scrutiny of these
laws’, which she described as a ‘full-blown attack on Australia's
environment’. She also noted that the Bill ‘is effectively a carbon
copy of the legislation tabled by Tony Abbott in 2014, when Tony Abbott was
doing the bidding of big miners and big developers to strip environmental
protections’.[120]
Centre Alliance
Centre Alliance has stated that it cannot consider
supporting the Bill ‘until there is an inquiry into the legislation and
more certainty regarding the Government's promised National Environmental
Standards’. Ms Sharkie stated that Centre Alliance ‘supported
efficiency but not at the expense of less protection for the environment’.[121]
Senator Griff noted that he had voted in favour of an inquiry into the Bill,
and expressed frustration that ‘the Government is resisting an inquiry
into the Bill’ and that parliamentarians were being ‘asked to make
decisions without a thorough understanding of the effects these changes will
have’.[122]
Zali Steggall
Independent MP Ms Zali Steggall issued a
statement in response to the Interim Report, which among other matters, expressed
concern that the Government was rushing to devolve approvals and decision
making to the states, had ruled out establishing an ‘independent cop on
the beat’ to oversee the compliance and enforcement functions of the Act
and had announced ‘hurried legislative changes without establishing
strong Environmental Standards’.[123]
Ms Steggall subsequently tabled proposed
amendments in the House of Representatives to:
- remove
the amendments to allow approval bilateral agreements to cover actions under
the water trigger
- require
the Minister to make National Environmental Standards by legislative instrument
- provide
that the Minister may only enter into a bilateral agreement if the Minister is
satisfied that the agreement is consistent with those National Environmental
Standards and
- provide
that the Minister must not make certain decisions (as already listed in
subsection 391(3) of the EPBC Act) unless the Minister is satisfied the
decision is consistent with the National Environmental Standards.[124]
However, Ms Steggall’s amendments were not debated
or discussed in the House of Representatives and the Bill passed the House of
Representatives unamended.[125]
Helen Haines
Following the passage of the Bill in the House of
Representatives, Dr Helen Haines expressed concern that the Bill would
‘weaken our environmental laws’ and described the
Government’s approach to the House of Representatives debate as a
‘deplorable move’ and an ‘affront to our democracy’.[126]
Andrew Wilkie
Mr Andrew Wilkie MP described the Bill as ‘environmental
vandalism’ which ‘completely ignores’ Professor Samuel’s
interim recommendations to ‘accompany changes to the Act with stringent
national standards and an independent regulator’.[127]
He queried handing decision-making to state and territory governments who he
considers are ‘conflicted and incapable of protecting the environment’.
Mr Wilkie expressed particular concern about the Bill for Tasmania which he
suggested needs the protection of effective federal environmental legislation
‘now more than ever’ as a result of the Tasmanian Government’s
recent ‘Major
Projects’ legislation which he suggested will allow ‘dodgy
projects to be fast-tracked’.[128]
Senator Patrick
Senator Rex Patrick has indicated that he will not vote for
the Bill in the Senate at this stage.[129]
Senator Patrick has said the Bill needs to go to a Senate inquiry, reportedly
expressing concern about the lack of national standards, resourcing for states
and territories to deal with additional responsibilities and a lack of federal
oversight of a devolved approval process.[130]
Senator Lambie
Senator Jacqui Lambie has indicated that she wants to see
the final report of the EPBC Act review before making a decision.[131]
One Nation
At the time of writing, One Nation Senators do not appear
to have directly commented on the Bill.
Position of
major interest groups
Conservation groups
Conservation groups do not support the Bill. For example,
the Australian Conservation Foundation (ACF) described the Bill as a
‘backward step that would create a regulatory mess of accreditation with
no national standards embedded in law’.[132]
The ACF considered that the Bill ‘makes the EPBC Act more complex’
and ‘reduces oversight of important environmental matters’.[133]
ACF suggested:
National safeguards for our environment are important because
the federal government has responsibilities to protect nationally and
internationally recognised ecosystems like the Great Barrier Reef and Kakadu
and much-loved threatened wildlife like the koala.[134]
Similarly, the Wilderness Society noted that much of the
Bill is ‘word-for-word identical to Tony Abbott’s failed 2014 one-stop-shop
amendments’ and noted that it had been ‘expected that this Bill
would enshrine environmental standards before handing over powers to the
states, but again the promised protections have not been delivered.’[135]
The Society called on the Parliament ‘to resist the government’s
efforts to rush this bill through, and insist on a full package of reforms that
will ensure our environment laws are enforced and effective at turning around
Australia’s extinction crisis’.[136]
WWF-Australia has described the Bill as a ‘recipe
for extinction’, because it doesn’t address concerns raised in the
independent review of the EPBC Act. WWF-Australia expressed concern that
the Bill ‘would see federal approval powers handed over to states and
territories’, but ‘in its current form lacks standards to help
determine the strength of protection being afforded to nature, and lacks a
commitment to ensuring independent compliance’.[137]
The Environmental Defenders Office (EDO) has expressed
concern that the Bill is being ‘pushed through parliament’ before
the 10 year review of the EPBC Act is finalised. The EDO considers that
the Bill ‘fails to include key elements for reform suggested in Graeme
Samuel’s Interim Report’, including ‘no mention of national
environmental standards’ which is ‘a critical foundation of
reform’ nor of an independent compliance and enforcement regulator.[138]
The EDO has also released a report which audited state and territory
legislation and concluded that ‘no state or territory legislation met the
full suite of existing national environmental standards required to protect
matters of national environmental significance’.[139]
The Humane Society International has expressed concern
that the Bill hands over federal government responsibilities to states and
territories ‘who are ill equipped for the job, with no provision for
enforceable standards, no safeguards, no additional resources and no
independent regulator’.[140]
Birdlife Australia considers that the Bill weakens
‘our national nature laws’ and ‘breaks faith with submissions
from 30,000 Australians and the full findings of the EPBC review’.[141]
It suggested that ‘after the devastation of last summer's bushfires we
need stronger laws, not weaker ones, to better protect our natural heritage and
the unique and irreplaceable wildlife’.[142]
Several conservation groups have also written to the Director-General
of the United Nations Educational, Scientific and Cultural Organization (UNESCO),
warning the international body of ‘alarming moves by the Australian
Government to weaken legal protection for Australia’s 20 World Heritage
listed properties’.[143]
The letter advises the UNESCO Director-General that the Morrison Government
‘is rushing a bill through the Australian Parliament that would hand its
national development approval powers’ to state and territory governments.[144]
Industry groups
At the time of writing, industry groups do not appear to
have directly commented on the Bill itself. However, as noted in the
‘Background’ section of this Digest, industry groups have for many
years been calling for reduced complexity and duplication between Commonwealth and
state and territory approval processes, which they consider causes additional
delays and costs for proponents of relevant projects. Several industry groups
have also welcomed and commented on the EPBC Act review Interim Report.[145]
For example, the Minerals Council of Australia (MCA) has
stated:
Reforms to the operation of the EPBC Act are needed to
address unnecessary duplication and complexity identified in the independent
review interim report. Reforms should provide greater certainty for businesses
and the community while achieving sound environmental outcomes.
…
The MCA supports the interim report recommendation to
establish national outcomes-based standards under the EPBC Act and devolution
of Commonwealth environmental assessment and approvals requirements to the
states and territories. The MCA also supports the commitment of national
cabinet to progress bilateral agreements between the Commonwealth and all
states and territories that would enable this devolution.
The MCA recommends the national standards and regulatory
architecture to support these agreements be carefully developed to ensure they
can be practically applied.[146]
At the same time, the Minerals Council has cautioned that
the department or body that has carriage of the assessment and approval
processes ‘must have the right amount of resources’.[147]
Similarly, the Australian Petroleum Production &
Exploration Association (APPEA) welcomed the report, including the recommendation
for consistent national environmental standards:
Overlapping requirements between states and the Commonwealth
and widespread duplication of processes between the Commonwealth and states do
not help to protect the environment but often causes unnecessary delays
increasing the costs for development.
… the report’s intention to establish clear
national environmental standards focused on outcome rather than process, will
provide greater flexibility when circumstances change while ensuring
environmental protection is maintained. [148]
The National Farmers’ Federation noted that it has
‘been seeking reform of the EPBC Act for more than a decade’ and
noted the Interim Report had made a number of ‘salient
recommendations’ including ‘that legally enforceable national
environmental standards be granular and focus on outcomes’ and ‘devolution
of assessments and approvals to willing states’.[149]
Law Council
The Law Council of Australia has suggested that the Bill
should ‘not be rushed through the Senate’ and has called for its
referral to a parliamentary inquiry.[150]
The Law Council reiterated its ‘longstanding view’ that ‘the
Commonwealth should be demonstrating leadership in biodiversity conservation
and environmental protection’. The Law Council stated:
Bilateral agreements should not operate without robust and
comprehensive Commonwealth oversight which is necessary to ensure that the
Australia’s obligations under international treaties are met and public
confidence and trust is maintained.[151]
The Law Council called for a ‘strong assurance
framework that clearly demonstrates how the Commonwealth Government will ensure
that its obligations under international law will be met’.[152]
The Law Council also considered that the independent inquiry should complete
its final report ‘before embarking on this significant change’.[153]
Financial
implications
According to the Explanatory Memorandum:
… the Bill will not have direct financial impacts;
however, the reforms will result in regulatory savings for business, including
a reduction on administrative and delay costs associated with two separate
approval processes.[154]
The Minister has also reportedly indicated that the Bill
‘does not involve additional funding for the states’.[155]
However, the ACT Government has reportedly stated that it will be requesting
additional funding from the Commonwealth as part of bilateral agreement
negotiations because ‘additional work will need to be resourced if
responsibility for EPBC approvals is transferred’.[156]
The recent Commonwealth Budget included an additional $10.6
million over two years to progress negotiations with the states and territories
on bilateral agreements to accredit states to carry out environmental approvals
for Commonwealth matters.[157]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[158]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights had no
comment on the Bill.[159]
Key issues
and provisions
The Environment Minister has indicated that the Bill is:
… the first step towards implementing the national
cabinet decision of 24 July 2020, where all states and territories agreed in
principle to adopt reforms to move towards a single-touch approach to
environmental approvals.[160]
As noted earlier in this Digest, the EPBC Act
already contains provisions for approval bilateral agreements which allow the
Commonwealth to accredit state and territory approval processes. The Bill
proposes to amend related provisions in the EPBC Act to ensure
‘legally robust devolution of environmental approvals to the states and
territories’, with the aim of removing duplication with state and
territory processes.[161]
In her second reading speech, the Environment Minister suggested that this
duplication ‘adds unnecessary regulatory burden which delays job-creating
projects and impedes economic activity, and creates uncertainty around
environmental protections.’[162]
As noted earlier in this Digest, industry groups have for many years called for
measures to remedy duplication between the EPBC Act and state and
territory approval processes. However, conservation groups have expressed
concern about the Commonwealth devolving its responsibilities to the states and
territories and consider that the Commonwealth should provide strong leadership
on environmental matters, particularly in relation to Australia’s
obligations under international environmental agreements.
In her second reading speech, the Environment Minister
also described the Bill as ‘the first tranche of EPBC Act reforms linked
to the independent statutory review of the Act’.[163]
However, as discussed earlier in this Digest, several stakeholders, including
conservation groups and the Law Council of Australia, are concerned that the
Bill is being rushed through Parliament before finalisation of the independent
statutory review.[164]
They expressed concern that the Bill simply replicates a 2014 Bill and does not
address key recommendations in the Interim Report, particularly the development
of national environmental standards prior to the delegation of approval powers
to states and territories.[165]
As also noted earlier in this Digest, both environment and industry groups
supported the Interim Report’s recommendation for clear national
environmental standards.
In this context, the Department advised a Senate Committee
inquiry that it provided initial drafting instructions relating to the Bill to
the Office of Parliamentary Counsel on 19 June 2020, prior to the National
Cabinet decision on 24 July, and before the Interim Report of the EPBC Act review
was received by the Government on 30 June.[166]
Referrals
Currently, under section 68 of the EPBC Act, a
person proposing to take an action that the person thinks is, or may be, a
controlled action must refer the proposal to the Minister. As outlined earlier
in this Digest, a ‘controlled action’ is an action which will have,
or is likely to have, a significant impact on a matter of national
environmental significance.[167]
Once an action is referred, the Minister then makes a decision under the EPBC
Act as to whether or not approval is needed to take the action.[168]
Section 29 in Part 4 of the EPBC Act provides that
actions taken in accordance with an accredited management arrangement or
authorisation process under an approval bilateral agreement will not require
the approval of the Commonwealth Environment Minister. This effectively means
that actions covered by approval bilateral agreements in this way are not
‘controlled actions’ under the definition in section 67, because taking
the action without approval is not prohibited under the relevant provisions of
the EPBC Act.[169]
In turn, this means such actions do not need to be referred to the Minister.
The simplified outline in section 66 of the EPBC Act
confirms this by stating that actions covered by approval bilateral agreements
are not covered by Chapter 4 of the EPBC Act. Chapter 4 contains
provisions relating to the environmental assessment and approval process,
including the referral process.
However, as the Explanatory Memorandum states, ‘there
is currently nothing in the Act to prevent a person from referring an action to
the Minister’ that is otherwise covered by the scope of an approval
bilateral agreement, even though it is unnecessary.[170]
In particular, subsection 68(2) provides that a person proposing to take an
action that the person thinks is not a controlled action may still refer
the proposal to the Minister.
As such, the amendments in this Schedule aim to ‘reduce
duplication by clarifying the intended operation of the Act, as stated in
section 66’.[171]
Item 2 of Schedule 1 of the Bill inserts proposed
section 66A to clarify that proponents will not need, or be able, to refer
an action to the Commonwealth where the action is approved under an approval
bilateral agreement; or where an action is being, or will be, assessed under an
approval bilateral agreement and an approval decision has not yet been made in
accordance with that agreement.
Proposed subsection 66A(3) provides that if an
approval bilateral agreement is suspended generally or suspended in relation to
actions in a specified class and the proposed action falls into that class,
then the action may be referred to the Commonwealth Minister for the
Environment.
Where an action is to be taken in two or more states or
self-governing territories, proposed subsection 66A(4) provides that proposed
section 66A does not operate unless the section operates in each of
the relevant states or territories. In this case, the proposed action may be referred
to the Commonwealth.[172]
The remainder of items in Schedule 1 are consequential to proposed
section 66A.
Completing assessments
The amendments in Schedule 2 of the Bill aim to enable assessment
and approval of an action under the EPBC Act to be completed in certain
situations, such as where a bilateral agreement is suspended or cancelled,[173]
or where an approval bilateral agreement otherwise ceases to apply to a
particular action. In this context, the Explanatory Memorandum states:
It is expected that an approval bilateral agreement will
include provisions allowing the Minister, or a State or Territory Minister, to
declare that a particular action is no longer within a class of actions to
which the approval bilateral agreement relates. These provisions would operate
to allow the Minister to ‘call-in’ an action for assessment and/or
approval under the Act in circumstances where it is appropriate that the
Commonwealth approve the action. For example, the Minister may call-in an action
covered by an approval bilateral agreement if adequate environmental protection
is not being achieved.[174]
As outlined earlier in this Digest, the EPBC Act review
Interim Report identified amendments to enable the Commonwealth to complete an
assessment and approval if a state or territory is unable to as one of the
‘important amendments’ needed to provide a ‘more enduring
framework for devolution’ of Commonwealth approval powers to states and
territories.[175]
Deemed referrals
Item 3 of Schedule 2 inserts proposed section 69A
which provides for ‘deemed referrals’. Proposed section 69A
applies where the Commonwealth Environment Minister,[176]
or the relevant state or territory minister, makes a declaration under an
approval bilateral agreement that a specified action is no longer covered by
the agreement (an ‘exclusion declaration’). If an exclusion
declaration is made, then the person proposing to take the action is deemed to
have referred the proposal to the Commonwealth Environment Minister at the time
the exclusion declaration is made.
Proposed subsection 69A(4) and section 69B modify
certain requirements relating to the referral, including the publication and
consultation requirements, as follows:
- the
person taken to have referred the action does not have to state whether they
think that an action is a controlled action (proposed subsection 69A(4))
- the
requirements in section 72 about the way in which a referral must be made, and
the information a referral must include, will not apply (proposed subsection
69A(4))
- the
requirement for the Commonwealth Environment Minister to invite comments from
other Commonwealth Ministers or the appropriate state or territory minister
under subsections 74(1) and 74(2) will be discretionary (proposed paragraph
69B(a))
- the
Commonwealth Environment Minister will only be required to publish the
exclusion declaration, rather than the referral itself (proposed paragraph
69B(b)) and
- unlike
the requirements for other referrals,[177]
the Commonwealth Environment Minister will not be required to invite public comments
on whether an action to which an exclusion declaration relates is a controlled
action, although the Minister will have a discretion as to whether to invite such
comments (proposed paragraph 69B(b)). The Explanatory Memorandum
suggests that ‘providing the Minister with this discretion will avoid
duplicating processes that may have already been undertaken’ by a state
or territory.[178]
However, the Minister can decide not to invite comments on the referral, even
where a state or territory has not undertaken any consultation.
Partially completed state or
territory assessments
Currently, if the Minister has decided under the EPBC
Act that an action is a ‘controlled action’, then that action
is assessed under Part 8 of the EPBC Act (unless it is covered by an
assessment bilateral agreement). The Commonwealth Environment Minister decides
on the appropriate level of assessment for that action under section 87 of the EPBC
Act.[179]
Subsection 87(3) currently sets out a range of matters
that the Minister must consider when making this assessment approach decision. Item
6 of Schedule 2 inserts proposed paragraph 87(3)(ca) to include an
additional matter for the Minister to consider in situations where an action is
deemed to have been referred to the Commonwealth (under proposed subsection
69A(2)), or if a bilateral agreement is suspended or cancelled, and a state
or territory has partially completed an assessment of the relevant impacts of
the action. In these circumstances, the Minister must consider the extent to
which a partially completed assessment of the action by the state or territory
can be used, and the assessment completed, under the EPBC Act.
If a state or territory has partially completed an
assessment of the relevant impacts of an action, and the Minister decides to
complete that assessment under the EPBC Act, item 9 inserts proposed
subsection 87(7) to require the Minister to make a determination on:
- which
steps of the state or territory assessment process are to be used for the
purposes of assessing the relevant impacts of the action and
- the
remaining steps to be carried out to complete the assessment.[180]
The Explanatory Memorandum states that these provisions
are needed because state and territory assessment processes will differ, and
may not necessarily align with the steps under the various assessment
approaches under Part 8 of the EPBC Act.[181]
The Minister is required to publish a notice of his or her
decision on the assessment approach under section 91 of the EPBC Act. Item
11 inserts proposed subsection 91(3) to clarify that if the Minister
makes a determination under proposed subsection 87(7), the assessment
approach decision notice under section 91 must also specify which steps of the state
or territory assessment process are to be used and which steps are to be
carried out under a Part 8 assessment process.
One of the assessment approaches provided for in the EPBC
Act is an ‘accredited assessment process’, which enables
case-by-case accreditation of a Commonwealth, state or territory assessment
process. This can already be used in situations where, for example, a bilateral
agreement is not in operation in a state or territory, or an action is not
covered by a bilateral agreement. Subsection 87(4) sets out the matters that
the Minister must be satisfied of before deciding on an assessment by an
accredited process. However, currently, accreditation of a Commonwealth, state
or territory assessment process can only occur where the assessment has not yet
commenced. Items 7 and 8 of Schedule 2 amend paragraphs 87(4)(a) and
87(4)(c) respectively to provide the Minister with the option of deciding that
the assessment approach that will be used for a particular action will be an
‘accredited assessment process’ where part or all of that assessment
has already been completed. The Explanatory Memorandum notes:
To make the decision, the Minister will need to be satisfied
that the process has been, or is being, carried out under a law of the
Commonwealth, a State or self-governing Territory, and that there has been, or
will be, an adequate assessment of the relevant impacts of the action under the
process.[182]
Declaring a state or territory
assessment as an assessment
Item 10 of Schedule 2 inserts proposed sections
87A and 87B into the EPBC Act.
Proposed section 87A enables the Commonwealth Minister
to make a determination that an assessment by the state or territory under a
bilateral agreement is an assessment for the purposes of the EPBC Act in
certain situations. That is, where an action has been deemed to have been
referred under proposed subsection 69A(2), the Minister has decided that the action
is a controlled action, and a state or territory has completed an assessment of
the impacts. This would allow the Minister to then make a decision on whether
or not to approve the action under the EPBC Act.[183]
Proposed section 87B similarly enables the Minister
to make a determination that an assessment by the state or territory under a
bilateral agreement is an assessment for the purposes of the EPBC Act,
in situations where the assessment bilateral agreement has been suspended or
cancelled but the action has not yet been approved by the state or territory.
Item 12 amends section 130 to set a 40 business day
timeframe within which the Minister must decide whether to approve the taking
of the action if the Minister has made a determination under proposed
sections 87A or 87B. This is broadly consistent with the other
decision-making timeframes currently set out in section 130.
Application of Schedule 2
amendments
Item 17 provides that the amendments in Schedule 2 will
apply to actions that:
- have
been assessed by a state or territory before the amendments commence
- are
being assessed by a state or territory on the day the amendments commence or
- will
be assessed by a state or territory on or after the day the amendments
commence.
Approval bilateral agreements and the
water trigger
The amendments in Part 1 of Schedule 3 of the Bill propose
to enable approval bilateral agreements to cover the water trigger under the EPBC
Act. Currently, sections 24D and 24E of the EPBC Act provide that
actions involving a coal seam gas development or a large coal mining development
require assessment and approval under the EPBC Act if they have, will
have, or are likely to have, a significant impact on water resources. As noted
earlier, this is also known as the ‘water trigger’.[184]
When this water trigger was added to the EPBC Act in
2013,[185]
Parliament agreed to amendments by Independent MP Tony Windsor which prevented approval
bilateral agreements from covering the water trigger: that is, the Commonwealth
could not give a state or territory responsibility for approving relevant developments
under the water trigger.[186]
As a result, the water trigger is the only matter of national environmental
significance that cannot currently be the subject of an approval bilateral
agreement.
Items 1 and 2 of Schedule 3 amend
subsections 29(1), 46(2) and 46(2A) to remove this restriction, which will allow
a bilateral agreement to declare that actions involving coal seam gas or large
coal mining developments which have, will have or are likely to have, a
significant impact on water resources are actions within a class of action that
do not require approval under the EPBC Act.[187]
Note that the Bill does not remove the water trigger
itself, but rather allows the Minister to devolve responsibility to states and territories
to make approval decisions relating to large coal mining and coal seam gas developments
that are likely to have a significant impact on a water resource.
The issues of the water trigger and approval bilateral
agreements were one of the more divisive aspects of the previous 2014 Bill.[188]
Industry groups have argued for some time that the water trigger duplicates
state-based water regulatory frameworks and should be removed altogether.[189]
In contrast, conservation organisations and others suggest the water trigger
should be expanded to other unconventional gas developments and oppose handing
over approval powers relating to the water trigger to the states and
territories.[190]
The 2017 review of the water trigger (mentioned in the
‘Background’ section of this Digest) found that ‘scope should
exist’ for approval bilateral agreements to include decisions under the water
trigger.[191]
To this end, the review recommended that:
… should governments wish to further pursue bilateral
approval agreements relating to the water trigger an independent and
transparent review be conducted, by a person or persons, acceptable to both the
Commonwealth and the states, to undertake an analysis of relevant state
regulatory systems, practice and policy. The purpose of the review would be to
identify and make recommendations for any changes necessary for each state
system to meet the requirements of the water trigger and so form the basis of
the water-resource related components of a bilateral approval agreement with
the Commonwealth. Such a review should be informed by [Independent Expert
Scientific Committee on Coal Seam Gas and Large Coal Mining Development] advice.[192]
The Interim Report of the current EPBC Act review proposed
that the water trigger be retained, but modified. Relevantly, the report noted
that the EPBC Act currently prevents approval decisions related to the water
trigger from being devolved to states or territories, and suggested:
Any decision to remove this restriction should be accompanied
by the development of a Standard for the protection of water resources.[193]
There is no mention of such a standard in the Bill or the
Explanatory Memorandum.
Independent Expert Scientific
Committee
Currently, section 131AB of the EPBC Act requires
the Minister to obtain, and take into account, the advice of the Independent
Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development
(IESC) before deciding whether to approve an action under the water trigger.[194]
The IESC was established under the EPBC Act in 2012 to advise state,
territory and Commonwealth governments on the potential water-related impacts
of proposed coal seam gas or large coal mining developments.[195]
The functions of the IESC are set out in section 505D of the EPBC Act.
Item 5 of Schedule 3 inserts proposed subsection
48A(2A) into the EPBC Act to require an approval bilateral agreement
that covers actions under the water trigger to include an undertaking from the
state or territory that the appropriate state or territory minister obtain, and
take into account, any relevant advice from the IESC when deciding whether or
not to approve that action.[196]
The Explanatory Memorandum states that this will ‘ensure States and
Territories are under a similar obligation [to section 131AB] if approval
bilateral agreements are entered into’.[197]
Item 5 also inserts proposed subsection 48A(2B)
to clarify that an undertaking to obtain and take account of the advice of the
IESC does not limit the ability of the state or territory to request advice
from the IESC.
Item 6 amends section 505D to provide the IESC with
an additional function in proposed paragraph 505D(1)(ba). This
paragraph would allow the Commonwealth Minister to request advice from the IESC
on coal seam gas and large coal mining developments which are likely to have
significant impacts on water resources that are being assessed under a
bilateral agreement. This would be supplementary to the IESC’s advice to
the state or territory on a particular development.[198]
The Explanatory Memorandum states that this supplementary advice:
… could assist the Commonwealth in monitoring the
operation of the bilateral agreements. It is likely that this would, in
practice, be used with regard to projects that have large potential impacts, or
where there is a high degree of uncertainty about potential impacts and/or
projects that are subject to significant community concern.[199]
Extending types of accredited authorisation
processes
Part 2 of Schedule 3 contains amendments to extend the
types of authorisation processes that can be accredited by approval bilateral
agreements.
Section 528 of the EPBC Act currently defines an ‘authorisation
process’ as a ‘process set out in a law of the Commonwealth or a state
or territory under which actions are authorised’. In turn, this means
that the Minister can currently only accredit an authorisation process for the
purposes of an approval bilateral agreement if it is set out in a ‘law of
the relevant state or territory’. However, the Explanatory Memorandum
considers that:
The existing definition of authorisation process also does
not recognise that States and Territories have set up their environmental
approval processes in ways that best reflect their regulatory operating
environment.[200]
Item 17 of Part 2 of Schedule 3 of the Bill repeals
the definition of ‘authorisation process’ and replaces it with a
revised and extended definition which includes a process ‘set out, wholly
or partly, in an instrument made under a law of a state or territory’ and
a process ‘made, wholly or partly, under a law of a state or
territory’.[201]
The Explanatory Memorandum states that this will enable to the Minister to:
… accredit processes that are set out in, for example,
procedures or guidelines which are made or issued under a State or Territory
law, but which are not set out in the State or Territory legislation itself.
This will allow for more detailed arrangements which are elements of the
authorisation process to be accredited by the Minister.[202]
The proposed Note to the new definition of
authorisation process clarifies that the reference to ‘partly’ in
the definition means ‘it is sufficient if at least part of the process is
set out or made’ under the law or instrument. That is, one component of
the process can be administrative, but:
The definition does not include an authorisation process
which is entirely made up of administrative components with no statutory basis.[203]
In short, the amendments in Part 2 of Schedule 3 expand
the types of authorisation processes that can be accredited for the purposes of
an approval bilateral agreement. The Explanatory Memorandum suggests that the
purpose of these amendments is to:
… provide flexibility in the range of State and
Territory authorisation processes that can be accredited for the purposes of an
approval bilateral agreement, and to ensure that the Act focuses appropriately
on the content and robustness of the authorisation process, rather than on
where the process is set out.[204]
However, the EDO has expressed concern that the Bill
‘allows accreditation of policies not set out in law, not even written
yet’.[205]
As the Bills Digest for the 2014 Bill observed, these amendments mean:
… the Minister may accredit authorisation processes
that are set out in, for example, procedures or guidelines which are made or
issued under state or territory law, but which are not set out in the state or
territory legislation itself, provided they meet appropriate Commonwealth
standards for assessing and approving actions. Thus, this would enable other
entities such as ‘expert panels’ or local councils in their role in
approving development projects to potentially be the authorising entities for
an approvals bilateral agreement. Given the number of local councils that this
may have implications for within jurisdictions, it may represent a challenge in
terms of transparency and accountability. This may be a significant issue as it
is unclear that local councils have the expertise, or are sufficiently
equipped, to manage the cumulative impacts of development that may cause long
term damage to land.[206]
Subsection 46(3) of the EPBC Act will still require
the Minister to be satisfied of certain matters before accrediting an
authorisation process.[207]
These matters include:
- the
authorisation process meets any criteria prescribed by the Regulations
(however, see below on this issue)[208]
- there
has been or will be adequate assessment of the impacts that actions approved in
accordance with the authorisation process have or will have, or are likely to
have, on each matter protected by a provision of Part 3 that relate to the
agreement[209]
and
- actions
approved in accordance with the authorisation process will not have unacceptable
or unsustainable impacts on a matter protected by a provision of Part 3.[210]
No criteria required for management
arrangements or authorisation processes
Item 11 in Schedule 3 contains what appears to be
the only notable difference between this Bill and the 2014 Bill (including proposed
Government amendments to the 2014 Bill).
Paragraph 46(3)(a) currently requires a management
arrangement or authorisation process (and the law under which it is in force or
set out) to meet the criteria prescribed by the Regulations. Item 11
amends paragraph 46(3)(a), ostensibly to ‘ensure the Minister is able to
accredit all components of a state or territory authorisation process being
considered for accreditation’.[211]
In doing so, item 11 inserts the words ‘if any’ after criteria
to clarify that the Regulations can be made, but do not need to be made, to prescribe
criteria for the authorisation process or management arrangement to meet.
Although proposed Government amendments to the 2014 Bill contained an amendment
similar to item 11, that amendment did not contain the words ‘if
any’.[212]
Under the current drafting of the EPBC Act, it is
not entirely clear what the effect would be if no Regulations prescribing
relevant criteria were made. Courts have considered the effect of a failure to
make Regulations when an Act says that a subject matter is to be ‘as
prescribed’ and have generally found that the effect depends on the
nature of the matter that is to be prescribed.[213]
In many cases, it has been found that Regulations were not necessary.[214]
As such, it is possible that inserting the words ‘if any’ into
paragraph 46(3)(a) may merely be confirming and clarifying that there is no
need to make Regulations prescribing criteria.
Nonetheless, as noted earlier in this Digest, the EPBC
Act review Interim Report recommended that clear and enforceable
environmental standards be prescribed in Regulations prior to the devolution of
approval powers to the states. As such, Parliament may wish to note that, not
only have no such standards been published alongside the Bill, but the Bill
contains amendments to clarify that there is actually no requirement for any additional
criteria or standards to be prescribed prior to the accreditation of a state or
territory arrangement or process.
Minor
changes to accredited processes
Section 56A of the EPBC Act currently sets out a
process for minor amendments to a bilateral agreement if the Minister is
satisfied that the amendment will not have a significant effect on the
operation of the agreement. However, as the Explanatory Memorandum states, the EPBC
Act:
… does not currently include a process for dealing with
minor changes to a management arrangement or authorisation processes accredited
under an approval bilateral agreement or minor changes to the specified manner
of assessment under an assessment bilateral agreement.[215]
As outlined earlier in this Digest, the EPBC Act review
Interim Report identified amendments to ensure agreements can endure minor
amendments to state and territory settings, rather than requiring the bilateral
agreement to be remade, as one of the ‘important amendments’ needed
to provide a ‘more enduring framework for devolution’ of
Commonwealth approval powers to states and territories.[216]
Items 1 and 2 of Schedule 4 of the Bill insert proposed
sections 46A and 47A respectively to apply to situations where a state or
territory amends:
- a
bilaterally accredited management arrangement or a bilaterally accredited
authorisation process under an approval bilateral agreement (proposed
section 46A) and
- the
specified manner in which actions are assessed for the purposes of an assessment
bilateral agreement (proposed section 47A).[217]
In these situations, the Commonwealth Minister for the
Environment will be able to make a written determination that:
- an
amended management arrangement or authorisation process continues to be
accredited under an approval bilateral agreement without the need to amend the
approval bilateral agreement or reaccredit the process or arrangement (proposed
subsection 46A(2)) or
- the
amended manner of assessing actions continues to be the specified manner of
assessment for the purposes of an assessment bilateral agreement (proposed
subsection 47A(2)).[218]
However, before the Minister makes the determination, proposed
subsections 46A(2) and 47A(2) require that the Minister must be satisfied that:
- the
amendment will not have, or is not likely to have, a material adverse impact
on a matter protected by Part 3
- the
amendment would not be likely to have a material adverse effect on a
person’s ability to participate in the relevant process (provided for by
the accredited arrangement or process) and
- the
process or management arrangement continues to meet the existing requirements
in the EPBC Act, such as:
- providing
for an adequate assessment of the relevant impacts of the action and
- actions
approved will not have unacceptable or unsustainable impacts on a relevant matter
protected by Part 3 of the EPBC Act.
As the Explanatory Memorandum notes, if the Minister considers
that a change would have a material adverse impact on a protected matter or a
material adverse effect on person’s ability to participate in the
process, the Minister would need to follow the process in Part 5 of the Act.
This would include public consultation on the amended bilateral agreement, and
tabling of the process or arrangement in Parliament.[219]
The Explanatory Memorandum gives the following examples of
what might be considered ‘minor changes’ to a bilaterally
accredited management arrangement or authorisation process:
- minor
changes to public consultation requirements, including increases and decreases
to the time available (as long as the changed requirements continue to satisfy
the relevant criteria)
- revisions
to requirements for the content of assessment documentation, such as to the
required information on potential impacts (where the changes would continue to
satisfy the relevant criteria) or additional information to be included in the
environmental assessment report under an accredited process (such as
alternatives for avoiding environmental impacts)
- including
additional requirements relating to procedural fairness and
- administrative
procedures made under a state law which may be made each calendar year.[220]
During the Senate inquiry into the 2014 Bill, several
organisations raised concerns that the proposed amendments in Schedule 4 could
result in amendments being made without public participation and parliamentary
oversight.[221]
Broader range of entities to
approve actions under bilateral agreements
In relation to approval bilateral agreements, subsection
46(1) of the EPBC Act currently refers to actions that have been approved
by the state or territory that is party to the agreement, or a state or
territory agency. As the Explanatory Memorandum states:
This means that if the entity making a decision under an
accredited management arrangement or authorisation process is not the State or
Territory, or an agency of the State or Territory, the class of actions
declaration in the approval bilateral agreement will not apply to decisions
made by that entity. As a result, the action will no longer be covered by the
approval bilateral agreement and will need a separate approval under the Act. [222]
In other words, the Commonwealth can currently only enter
into approval bilateral agreement to accredit actions approved by a state or
territory or an agency of a state or territory, but not actions approved by
other entities which may fall outside the definition of ‘agency of a
state or territory’.[223]
The Explanatory Memorandum suggests that this includes some local governments
and other expert bodies in some states, and as such the current wording could ‘lead
to an outcome where the decision of a body reviewing an approval under an
accredited arrangement or process would itself fall outside the scope of the
arrangement or process’.[224]
Item 1 of Schedule 5 of the Bill proposes to repeal
and replace subsection 46(1) of the EPBC Act to overcome this issue by removing
the reference to approval by the state or territory (or a state or territory
agency). The Explanatory Memorandum suggests this means that the focus is on
the approval bilateral agreement and whether the relevant arrangement or
process satisfies the criteria for accreditation, rather than the identity of
the decision maker.[225]
Item 1 also inserts a new note to subsection
46(1) to clarify that an action may be approved in accordance with an
accredited arrangement or process before the accreditation of that
arrangement or process for the purposes of an approval bilateral agreement.
Concerns were raised in relation to the same provisions in
the 2014 Bill. These concerns centred on the capacity of authorised persons to
act in the national interest, potential conflicts of interest and the
consequential negative impacts to the maintenance of strong environmental
standards.[226]
Other amendments
Accreditation considerations
Subsection 46(3) currently requires the Minister to
be satisfied of certain matters before accrediting a management arrangement or
an authorisation process for the purposes of an approval bilateral agreement. Item
6 of Schedule 5 inserts a proposed paragraph 46(3)(d) which enables
the Minister to consider ‘any other matter that the Minister considers
relevant’ when deciding whether to accredit a management arrangement or
authorisation process. Item 8 inserts a related new note to
subsection 46(3) which suggests that matters that the Minister might consider
relevant may include, for example, the terms of the bilateral agreement or
State policies or plans.
The Explanatory Memorandum suggests:
For example, the State or Territory may commit to processes
or environmental protection requirements in a bilateral agreement, or set out
guidance in policies as to how decision-makers should exercise discretion under
State or Territory processes, and this may be relevant to the Minister being
satisfied that the authorisation process will not have unacceptable or
unsustainable impacts. New paragraph 46(3)(d) would enable this information to
be taken into account in deciding whether or not to accredit a management
arrangement or authorisation process.[227]
As the Explanatory Memorandum also observes, subsection
45(4) currently requires the Minister to publish a statement of reasons for
entering into the bilateral agreement at the time the Minister publishes the
finalised agreement, which documents ‘all matters that the Minister
considered when deciding to accredit a management arrangement or an authorisation
process’.[228]
This would include any matters considered under proposed paragraph 46(3)(d).[229]
Bilateral agreements and current
versions of instrument and policy documents
Item 9 of Schedule 5 inserts proposed section
48AA into the EPBC Act to provide that a bilateral agreement may ‘apply,
adopt or incorporate’ an instrument or other writing as in force or
existing from time to time, even if it does not yet exist when the agreement is
entered into. The operation of section 46AA of the Acts Interpretation
Act 1901, and the current provisions of the EPBC Act, mean that bilateral
agreements may only apply, adopt or incorporate documents or other instruments
(other than Commonwealth Acts or legislative instruments) that are in force at
a particular time (for example, at the time of, or before, the making of a
bilateral agreement).[230]
However, currently, bilateral agreements may not apply, adopt or incorporate
documents or other instruments as in force from time to time.[231]
The aim of proposed section 48AA is therefore to ensure
that the operation of a bilateral agreement is preserved when instruments and
policy documents are updated, rather than requiring the agreements to be
amended each time the relevant instrument or document is updated.[232]
As discussed earlier in this Digest, the Scrutiny of Bills Committee has requested
more detailed advice from the Minister as to the type of documents that may be
applied, adopted or incorporated by reference under proposed section 48AA
and whether these documents will be freely available to all interested persons.[233]
Concluding comments
This Bill largely replicates a Bill introduced into Parliament
in 2014 to facilitate the devolution of environmental approval powers to state
and territory governments. The Bill does not incorporate many of the
recommendations made by the Interim Report of the current review of the EPBC
Act, including that national environmental standards be developed to
support the devolution of environmental approval powers to state and territory
governments. Some stakeholders consider that it is premature to amend the EPBC
Act prior to the finalisation of the current ten year statutory review of
the EBPC Act, which is due to report in October this year.
[1]. As such, the Parliamentary
Library Bills Digest for the 2014 Bill covers many of the relevant issues and
provisions: see B McCormick and J Tomaras, Environment
Protection and Biodiversity Conservation Amendment (Bilateral Agreement
Implementation) Bill 2014, Bills digest, 9, 2014–15,
Parliamentary Library, Canberra, 15 July 2014. This author acknowledges the
work of those authors, which has been invaluable in preparing this Digest. However,
note the current Bill incorporates some (but not all) of the government
amendments that were tabled
in the Senate in 2016, which were not discussed in that earlier Digest.
These are identified and discussed in the ‘Key issues and
provisions’ section of this Digest as relevant.
[2]. Environment
Protection and Biodiversity Conservation Act 1999 (EPBC Act), sections
523–524A.
[3]. EPBC Act, section 67.
[4]. These matters are listed in sections
12-24E of the EPBC Act.
[5]. EPBC Act, sections
26–27A. Note that these sections also cover actions taken outside
Commonwealth land that will have a significant impact on the environment on
Commonwealth land.
[6]. EPBC Act, section 28. Note
that this section covers actions by the Commonwealth ‘inside or outside
Australian jurisdiction’.
[7]. See
further: Department of Agriculture, Water and the Environment (DAWE), ‘What does the EPBC
Act protect?’, DAWE website.
[8]. S
Power, Environment
Protection and Biodiversity Conservation Act 1999: a quick guide,
Research paper series, 2018–19, Parliamentary Library, Canberra, 2019.
[9]. Department
of the Environment, Water, Heritage and the Arts, 2010 at DAWE, Referral,
assessment/decision whether to approve flowchart, 2010 available at DAWE,
‘Environment
assessment process’, DAWE website.
[10]. See,
for example: G Samuel, Independent review
of the EPBC Act, Interim report, DAWE, Canberra, June 2020, pp. 11 and
47–54; or House of Representatives Standing Committee on the
Environment, Streamlining
environmental legislation: inquiry into streamlining environmental regulation,
‘green tape’, and one stop shops, House of Representatives,
Canberra, December 2014, pp. 23–29.
[11]. EPBC
Act, section 47.
[12]. EPBC
Act, section 46.
[13]. EPBC
Act, subsection 29(1).
[14]. See,
for example: EPBC Act, subsection 46(1).
[15]. Current
assessment bilateral agreements are at: DAWE, ‘One-Stop Shop for environmental
approvals’, DAWE website.
[16]. With the exception of an approval
bilateral agreement for the Sydney Opera House (now expired): Department of the
Environment and Heritage, ‘An agreement between the
Australian Government and the state of New South Wales under section 25 of the
Environment Protection and Biodiversity Conservation Act 1999 (Cth) relating to
actions approved and taken in accordance with the bilaterally accredited
management plan for the Sydney Opera House’, 22 December 2005.
[17]. EPBC
Act, section 50. Section 3A sets out the principles of ecologically
sustainable development, including the ‘precautionary principle’,
in paragraph 3A(b), which states that: ‘if there are threats of serious
or irreversible environmental damage, lack of full scientific certainty should
not be used as a reason for postponing measures to prevent environmental
degradation’.
[18]. EPBC
Act, subsection 51(2). Subsections 52(2), 53(2) and 54(2) set out similar
requirements in relation to relevant international agreements for Ramsar
wetlands, listed threatened species and ecological communities and listed
migratory species.
[19]. EPBC
Act, subsections 51(2), 51A(2) and 52(2).
[20]. EPBC
Act, paragraphs 53(2)(b) and 54(2)(b).
[21]. EPBC
Act, paragraph 53(2)(c).
[22]. EPBC
Act, paragraph 46(3)(b).
[23]. EPBC
Act, paragraph 46(3)(c).
[24]. See
further EPBC Act, subsections 46(4)–(8).
[25]. See,
for example: Chapter 7 of the Senate Environment, Communications, Information
Technology and the Arts Legislation Committee, Environment
Protection and Biodiversity Conservation Bill 1998 and Environmental Reform
(Consequential Provisions) Bill 1998, The Senate, Canberra, April 1999;
L Ogle, ‘The
Environment Protection and Biodiversity Conservation Act 1999 (Cth): how workable
is it?’, Environmental and Planning Law Journal, 17(5), 2000,
pp. 473–474.
[26]. Council
of Australian Governments (COAG), Communique,
COAG Meeting, Canberra, 13 April 2012.
[27]. P
Osborne, ‘Cut
green tape in development’, The Adelaide Advertiser, 13 April
2012, p. 28.
[28]. S
Morris, ‘Gillard
holds “green tape” line’, The Australian Financial
Review, 8 December 2012, p. 5; see also: C McGrath, ‘One
stop shop for environmental approvals a messy backward step for Australia’,
Environmental and Planning Law Journal, 31(3), 2014, pp. 164–191.
[29]. The
‘one-stop shop’ for environmental approvals is now being referred
to as ‘single touch’ environmental approvals. See: DAWE, ‘Single
touch environmental approvals’, DAWE website and also DAWE, ‘One-Stop Shop for environmental
approvals’, DAWE website (which is described as
‘superseded’).
[30]. T
Abbott (Leader of the Opposition) and G Hunt (Shadow Minister for Climate
Action, Environment and Heritage), The
Coalition’s policy for a one-stop-shop for environmental approvals,
joint media release, 26 June 2013.
[31]. G
Hunt (Minister for the Environment), One-stop
shop approved by government, media release, 16 October 2013.
[32]. T
Abbott (Prime Minister) and G Hunt (Minister for the Environment), All
states and territories sign up for the one-stop shop, media release, 13
December 2013.
[33]. Council
of Australian Governments (COAG), Communique, COAG Meeting, Canberra, 13 December 2013.
[34]. G
Hunt (Minister for the Environment), A
One-Stop Shop for the Northern Territory makes it 8 out of 8, media
release, 19 December 2014.
[35]. Draft
approval bilateral agreements are available at: DAWE, ‘One-Stop Shop for environmental
approvals’, DAWE website.
[36]. Environment Protection
and Biodiversity Conservation Regulations 2000, regulations 16.01 and
16.02.
[37]. Department
of the Environment (DoE), Standards for
Accreditation of Environmental Approvals under the Environment Protection and
Biodiversity Conservation Act 1999, DoE, [Canberra], 2014; see also G
Hunt (Minister for the Environment), Release
of national environmental standards for One-Stop Shop Reforms, media
release, 28 March 2014.
[38]. G
Hunt, ‘Second
reading speech: Environment Protection and Biodiversity Conservation Amendment
(Bilateral Agreement Implementation) Bill 2014’, House of
Representatives, Debates, 14 May 2014, p. 3630.
[39]. Senate
Environment and Communications Legislation Committee, Environment
Protection and Biodiversity Conservation Amendment (Bilateral Agreement
Implementation) Bill 2014 [Provisions]; Environment Protection and Biodiversity
Conservation Amendment (Cost Recovery) Bill 2014 [Provisions], The
Senate, Canberra, June 2014.
[40]. Ibid.,
pp. 45–69.
[41]. Parliament
of Australia, ‘Environment
Protection and Biodiversity Conservation Amendment (Bilateral Agreement
Implementation) Bill 2014 homepage’, Australian Parliament website.
[42]. S
Hunter, Independent
review of the water trigger legislation, [Department
of the Environment and Energy], [Canberra], April 2017, p. 6.
[43]. DAWE,
‘Targeted
review to find ways to better support farmers under national environment law’,
DAWE website.
[44]. J
Frydenberg (Minister for the Environment and Energy), Weeding
out unnecessary red tape for farmers, media release, 29 March
2018; see also, for example: C Bettles, ‘EPBC
Act under review’, The Land, 5 April 2018, p. 21.
[45]. W
Craik, Review
of interactions between the EPBC Act and the agriculture sector: final report,
prepared for the Department of the Environment and Energy, 28 September 2018,
p. 17; S Ley (Minister for the Environment), Report
shows need for clear environmental protection rules, media release, 27
June 2019.
[46]. Craik,
Review of interactions between the EPBC Act and the agriculture sector,
op. cit., p. x.
[47]. Ibid.
[48]. Senate
Environment and Communications References Committee, Australia’s
faunal extinction crisis, Interim report, The Senate, Canberra, April
2019, p. 61.
[49]. Ibid.,
p. 63.
[50]. Australian
National Audit Office (ANAO), Referrals, assessments
and approvals of controlled actions under the Environment Protection and
Biodiversity Conservation Act 1999, Audit report, 47, 2019-20, see
especially pp. 50–54.
[51]. Ibid.,
p. 8.
[52]. Ibid.,
p. 50.
[53]. Ibid.,
p. 51.
[54]. J
Frydenberg (Treasurer) and M Cormann (Minister for Finance), Mid-year economic
and fiscal outlook 2019–20, p. 216.
[55]. S
Ley (Minister for the Environment), Congestion
busting assessments protecting our environment and our economy, media
release, 23 April 2020.
[56]. Australian
Government, Budget
measures: budget paper no. 2: 2020–21, p. 51.
[57]. Ibid.
[58]. P
Burnett, ‘Mr
Morrison, you can cut “green tape” without harming nature—but
it'll take money and gumption’, The Conversation, 17 June
2020.
[59]. EPBC
Act, section 522A.
[60]. A
Hawke, The
Australian Environment Act: report of the independent review of the Environment
Protection and Biodiversity Conservation Act 1999, (Hawke Review), DEWHA,
Canberra, October 2009.
[61]. Department
of Sustainability, Environment, Water, Population and Communities (DSEWPC), Australian
Government response to the report of the independent review of the Environment
Protection and Biodiversity Conservation Act 1999, 2011.
[62]. S
Ley (Minister for the Environment), Graeme
Samuel to lead environment review, media release, 29 October 2019.
[63]. G
Samuel, Independent
review of the EPBC Act: discussion paper, Department of the Environment
and Energy, [Canberra], November 2019.
[64]. Independent
review of the EPBC Act, ‘Submissions’,
Independent review of the EPBC Act website.
[65]. G
Samuel, Independent
review of the EPBC Act, Interim report, DAWE, Canberra, June 2020; see
also G Samuel, Release
of interim report for the independent review of the Environment Protection and
Biodiversity Conservation Act 1999, media release, 20 July 2020.
[66]. Samuel,
Interim report, op. cit., p. 2.
[67]. Ibid.,
p. 1.
[68]. Ibid.
[69]. Samuel,
Release of interim report, media release, op. cit.
[70]. Samuel,
Interim report, op. cit., p. 1.
[71]. Ibid.
[72]. Ibid.,
pp. 3–4 and p. 24–26.
[73]. Ibid.,
p. 3.
[74]. Samuel,
Release
of interim report, media release, op. cit.
[75]. Samuel,
Interim report, op. cit., p. 4.
[76]. Ibid.,
p. 26.
[77]. Ibid.,
p. 1.
[78]. Samuel,
Interim report, op. cit., p. 46.
[79]. Ibid.,
p. 99.
[80]. As
noted above, draft approval bilateral agreements were published in 2014–15
for almost every state and territory under the One-Stop Shop proposal.
[81]. Samuel,
Interim report, op. cit., p. 53.
[82]. Ibid.,
p. 8.
[83]. Samuel,
Interim report, op. cit., p. 54.
[84]. Ibid.,
p. 55. At the same time, the interim report suggested that the pathways for
assessing proposals should be ‘rationalised’ to reduce the
complexity of the regulatory process: Samuel, Interim report, op. cit.,
p. 61.
[85]. Samuel,
Interim report, op. cit., p. 99.
[86]. The
interim report provides minimal further guidance in relation to this issue: see
further Samuel, Interim report, op. cit., p. 44. In this context, the
report specifically references the Law Council of Australia’s submission
to the review: Law Council of Australia, Submission
to the EPBC Act review, 20 April 2020.
[87]. The
interim report suggests this could be achieved by referencing the existing Regulatory Powers
(Standard Provisions) Act 2014, which ‘provides a standardised
approach to setting out such powers … bolstered with specific
arrangements to ensure that monitoring, compliance, enforcement and assurance
powers in the EPBC Act are fit for purpose’: Samuel, Interim
report, op. cit., p. 95.
[88]. Ibid.,
pp. 15 and 45.
[89]. S
Morrison (Prime Minister), Address
to the CEDA's State of the Nation Conference, Barton, ACT,
transcript, 15 June 2020.
[90]. DAWE,
‘EPBC Act
major projects’, DAWE website.
[91]. S
Ley (Minister for the Environment), Reform
for Australia's environment laws, media release, 20 July 2020.
[92]. Ibid.
[93]. Ibid.
[94]. Ibid.
[95]. Ibid.
[96]. Ibid.
[97]. S
Ley (Minister for the Environment), ‘Negotiations
to start over Conservation Act review recommendations’, transcript, ABC
Radio National Breakfast, 21 July 2020.
[98]. Ibid.
[99]. S
Morrison (Prime Minister), National
Cabinet, media release, 24 July 2020.
[100]. See,
for example: Intention
to develop a draft bilateral agreement with the State of South Australia under
section 45 of the Environment Protection and Biodiversity Conservation Act 1999
(Cth), Gazette Government Notice, C2020G00639, 7 August 2020.
Under subsection 45(3), this is a required first step in the development of an
approval bilateral agreement.
[101]. Australia,
House of Representatives, ‘Environment Protection And Biodiversity
Conservation Amendment (Streamlining Environmental Approvals) Bill 2020’,
Votes
and proceedings, 70, 2019–20, 3 September 2020, p. 1215; see
also, for example: L Cox, ‘Australian
government gags debate to ram environmental law changes through lower house’,
Guardian (Australia), 3 September 2020.
[102]. S
Ley (Minister for the Environment), Streamlining
environmental approvals bill passes House of Representatives, media
release, 20 August 2020.
[103]. Senate
Selection of Bills Committee, Report,
7, 2020, The Senate, Canberra, 27 August 2020, p. 4.
[104]. Australia,
Senate,
‘Environment Protection and Biodiversity Conservation Amendment
(Streamlining Environmental Approvals) Bill 2020’, Journals,
(proof), 62, 27 August 2020, pp. 2148–49.
[105]. M
Cormann, ‘Selection
of Bills Committee: report’, Senate, Debates, (proof), 27
August 2020, p. 29.
[106]. Australia,
Senate, ‘Environment Protection and Biodiversity
Conservation Amendment (Streamlining Environmental Approvals) Bill 2020’, Journals,
(proof), 64, 1 September 2020, p. 2214–15; Australia, Senate, ‘Environment
Protection and Biodiversity Conservation Amendment (Streamlining Environmental
Approvals) Bill 2020’, Journals,
(proof), 64, 3 September 2020, pp. 2293–94.
[107]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 11, 2020, 2 September 2020, p. 12.
[108]. Explanatory
Memorandum, Environment Protection and Biodiversity Conservation Amendment
(Streamlining Environmental Approvals) Bill 2020, p. 19.
[109]. Ibid.
[110]. Scrutiny
digest, 11, 2020, op. cit., p. 12.
[111]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 13, 2020, 7 October 2020, pp. 27–30.
[112]. Australia,
Senate, ‘Environment Protection and Biodiversity Conservation Amendment
(Streamlining Environmental Approvals) Bill 2020’, Journals,
(proof), 61, 26 August 2020, pp. 2134–35.
[113]. Australia,
Senate, ‘Environment Protection and Biodiversity Conservation Amendment
(Streamlining Environmental Approvals) Bill 2020’, Journals,
(proof), 64, 1 September 2020, pp. 2214–15.
[114]. See,
for example: T Butler, Labor
will oppose failed Abbott environment bill rehash, media release, 1
September 2020; A Albanese, ‘Second
reading speech: Environment Protection and Biodiversity Conservation Amendment
(Streamlining Environmental Approvals) Bill 2020’, House of
Representatives, Debates, (proof), 3 September 2020, p. 33.
[115]. T Butler, Failed Abbott environment bill rehash puts environment, jobs and
investment at risk, media release, 27 August
2020.
[116]. Ibid.
[117]. Ibid.
[118]. A
Bandt, ‘Second
reading speech: Environment Protection and Biodiversity Conservation Amendment
(Streamlining Environmental Approvals) Bill 2020’ House of
Representatives, Debates, (proof), 3 September 2020, p. 43.
[119]. Australia,
Senate, ‘Environment Protection and Biodiversity Conservation Amendment
(Streamlining Environmental Approvals) Bill 2020’, Journals,
(proof), 62, 27 August 2020, p. 2147–49; Australia, Senate,
‘Environment Protection and Biodiversity Conservation Amendment
(Streamlining Environmental Approvals) Bill 2020’, Journals,
(proof), 64, 1 September 2020, p. 2214–15.
[120]. S
Hanson-Young, ‘Selection
of Bills Committee: report’, The Senate, Debates, 27 August
2020, p. 4240.
[121]. R
Sharkie and S Griff, Centre
Alliance calls for inquiry into environmental law changes, media
release, 4 September 2020.
[122]. Ibid.
[123]. Z
Steggall, Statement
on the Interim Report on the statutory review of the Environment Protection and
Biodiversity Conservation Act 1999 (EPBC Act), media release, 31 July
2020.
[124]. Amendments,
Environment Protection and Biodiversity Conservation Amendment (Streamlining
Environmental Approvals) Bill 2020, proposed subsection 391A. Note that
proposed subsection 391A(2) set out matters that the National Environmental Standards
may make provision for.
[125]. House
of Representatives, Second and third reading: ‘Environment
Protection and Biodiversity Conservation Amendment (Streamlining Environmental
Approvals) Bill 2020’, Debates, 3 September 2020, pp.
6522–6548 and 6605–6627; see also Z Steggall, Damaging
environmental laws rammed through Parliament, media release, 3
September 2020.
[126]. J
Hayne, ‘Crossbenchers
furious after Government shuts down debate on environmental protection laws’,
ABC News online, 3 September 2020; see also H Haines
(@helenhainesindi), ‘The Prime Minister just shut down the House of
Representatives…’ tweet, 3 September 2020, https://twitter.com/helenhainesindi/status/1301426863890296833.
[127]. A
Wilkie, Morrison
Government a pack of environmental vandals, media release, 3 September
2020.
[128]. Ibid.
See also Parliament of Tasmania, ‘Land Use Planning
and Approvals Amendment (Major Projects) Bill 2020’, Parliament of
Tasmania website.
[129]. See,
for example: A Morton, ‘Crossbench
senators vow to block Coalition changes to environment laws’, Guardian
(Australia), 10 September 2020; G Brown, ‘Senate
to block bill for green tape cuts’, The Australian, 10
September 2020, p. 4.
[130]. Ibid.
See also: R Patrick (Senator Rex Patrick), ‘Proper scrutiny required for
environmental approvals law’, Facebook update,
9 September 2020, https://www.facebook.com/senator.rex.patrick/posts/765075917386160?__tn__=-R.
[131]. Morton,
op. cit.
[132]. Australian
Conservation Foundation (ACF), Environment
bill a disaster for koalas, bilbies, media release, 27 August 2020.
[133]. Ibid.
[134]. Ibid.
[135]. The
Wilderness Society, Word-for-word
Abbott-era environment Bill introduced to House, media release, 27
August 2020.
[136]. Ibid.
[137]. WWF-Australia,
Environment
bill is a recipe for extinction, warns WWF, media release, 3 September
2020.
[138]. EDO,
‘EPBC
Act reform: National environmental law reform on a knife edge’, EDO
website, 4 September 2020.
[139]. EDO,
Devolving
extinction? The risks of handing environmental responsibilities to states and
territories, October 2020.
[140]. Humane
Society International, Government
breaks faith on environment reforms, media release, 27 August 2020.
[141]. Birdlife
Australia, Nature
laws weakened, media release, 27 August 2020.
[142]. Ibid.
[143]. ACF,
Conservationists
warn UNESCO of ‘alarming’ move to weaken protection for World
Heritage sites, media release, 7 September 2020. The letter has
been signed by the ACF, the Australian Marine Conservation Society, Birdlife
Australia, the Bob Brown Foundation, the Colong Foundation for Wilderness,
Environmental Justice Australia, Fight For Our Reef, Humane Society
International Australia, Protect Ningaloo, Queensland Conservation Council,
Tasmanian Conservation Trust, The Wilderness Society and WWF Australia, Letter
to UNESCO Director-General, 4 September 2020.
[144]. Ibid.
[145]. See,
for example: National Farmers’ Federation (NFF), Report
reaffirms farmers’ EPBC Act frustrations and supports calls for reform,
media release, 20 July 2020; Minerals Council of Australia, Environment
reforms a pathway to more jobs and a better environment, media release,
20 July 2020; Australian Petroleum Production & Exploration Association
(APPEA), EPBC
recommendations a step in the right direction, media release,
20 July 2020.
[146]. Minerals
Council of Australia, 2020–21
Pre-Budget submission, 24 August 2020, p. 20.
[147]. M
Foley, ‘Push
for funds in plan to cut green tape’, The Age, 3 August 2020,
p. 10.
[148]. APPEA,
EPBC recommendations a step in the right direction, op. cit.
[149]. NFF,
Report reaffirms farmers’ EPBC Act frustrations and supports calls for
reform, media release, op. cit.
[150]. Law
Council of Australia, Law
Council of Australia calls for parliamentary inquiry into environmental bill,
media release, 4 September 2020.
[151]. Ibid.
[152]. Ibid.
[153]. Ibid.
[154]. Explanatory Memorandum, op. cit., p. 1.
[155]. K Burgess, ‘States to bear cost of federal approvals’,
The Canberra Times, 31 August 2020, p. 3.
[156]. Ibid.
[157]. Australian
Government, Budget
measures: budget paper no. 2: 2020–21, p. 51.
[158]. The
Statement of Compatibility with Human Rights can be found at pages 21–22
of the Explanatory
Memorandum to the Bill.
[159]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 11, 2020, 24 September 2020, p. 81.
[160]. S
Ley, ‘Second
reading speech: Environment Protection and Biodiversity Conservation Amendment
(Streamlining Environmental Approvals) Bill 2020’, House of
Representatives, Debates, 27 August 2020, p. 5757.
[161]. Ibid.
[162]. Ibid.
[163]. Ibid.
[164]. See,
for example, Law Council of Australia, Law Council of Australia calls for
parliamentary inquiry into environmental bill, op. cit.; The
Wilderness Society, Word-for-word Abbott-era environment Bill introduced to
House, op. cit.; EDO, ‘EPBC
Act reform: National environmental law reform on a knife edge’, op.
cit.
[165]. Ibid.
[166]. DAWE,
Answers
to questions taken on notice at public hearing on 30 July 2020, Senate
Environment and Communications References Committee, Inquiry into
Australia’s faunal extinction crisis. Note that additional drafting
instructions were provided to the Office of Parliamentary Counsel on 6 July
2020. See also, for example: L Cox, ‘Coalition
began writing landmark environment bill before receiving review it had ordered’,
Guardian Australia, 16 September 2020.
[167]. Actions
by Commonwealth agencies that are likely to have a significant impact on the
environment, and actions by any person likely to have a significant impact on
the environment on Commonwealth land, are also ‘controlled
actions’.
[168]. If
approval is required, the Minister then decides on the appropriate level of
assessment under Part 8 of the EPBC Act.
[169]. For
example, under paragraphs 12(2)(b) and 15A(4)(b), the prohibition against
taking actions that have, will have or likely to have a significant impact on
the world heritage values of a World Heritage property without approval does
not apply if Part 4 of the EPBC Act allows the action to be taken.
[170]. Explanatory
Memorandum, op. cit., p. 4.
[171]. Ibid.
[172]. Ibid.,
p. 5.
[173]. Sections 57–64 of the EPBC Act contain
provisions relating to the suspension or cancellation of bilateral agreements.
[174]. Explanatory
Memorandum, op. cit., p. 6.
[175]. Samuel,
Interim report, op. cit., p. 53.
[176]. Item 16 of Schedule 2 inserts a new definition of
‘Environment Minister’ into section 528 of the EPBC Act,
which will mean the Minister administering Chapter 2 of the EPBC Act.
[177]. Subsection 74(3) of the EPBC Act requires the
Commonwealth Environment Minister to invite public comments on referrals.
[178]. Explanatory
Memorandum, op. cit., p. 7.
[179]. That is: an accredited assessment process; an assessment
on referral information; an assessment on preliminary documentation; a public
environment report; an environmental impact statement; or a public inquiry.
[180]. Proposed subsection 87(8) clarifies that
this determination would not be a legislative instrument and thus not
subject to disallowance.
[181]. Explanatory
Memorandum, op. cit., p. 8.
[182]. Ibid., p. 10.
[183]. Proposed subsection 87A(3) provides that a
decision under proposed subsection 87A(1) is not a legislative
instrument and thus not subject to disallowance.
[184]. See
further, DAWE, ‘Water
resources - 2013 EPBC Act amendment - Water trigger’, DAWE website.
[185]. By the Environment
Protection and Biodiversity Conservation Amendment 2013.
[186]. T
Windsor, ‘Amendments
to Environment Protection and Biodiversity Conservation Amendment Bill 2013’,
which amended subsections 29(1), 46(1), 46(2) and 46(2A) to exclude sections
24D and 24E relating to water resources as actions able to be covered by
approval bilateral agreements.
[187]. Item 1 of Schedule 5 of the Bill amends subsection
46(1) to remove the same restriction in that subsection.
[188]. See,
for example: McCormick and Tomaras, Environment
Protection and Biodiversity Conservation Amendment (Bilateral Agreement
Implementation) Bill 2014, op. cit., p. 11; Senate Environment and
Communications Legislation Committee, Report, op. cit., pp. 31–34.
[189]. Ibid;
see also Samuel, Interim report, op. cit., p. 50.
[190]. Samuel,
Interim report, op. cit., p. 50.
[191]. Hunter,
Independent
Review of the Water Trigger Legislation, op. cit., p. 10.
[192]. Ibid.,
p. 10.
[193]. Samuel,
Interim report, op. cit., p. 102; see also pp. 50–51.
[194]. The
Minister is required to take the IESC’s advice into account by paragraph
136(2)(fa) of the EPBC Act.
[195]. IESC,
‘About us’,
IESC website.
[196]. Items 3 to 6 are identical to amendments that were
made to the 2014 Bill: On 16 June 2014, in the second reading debate in the
House of Representatives, the Government introduced amendments
to the 2014 Bill, which inserted items 2A to 2D into Schedule 3 of the 2014 Bill.
These amendments were accepted and were included in the third
reading version of the 2014 Bill.
[197]. Explanatory
Memorandum, op. cit., p. 11.
[198]. Ibid., p. 12.
[199]. Ibid.
[200]. Ibid., p. 12.
[201]. Items
8–10 and items 13-16 of Schedule 3 are consequential
amendments which amend various provisions of the EPBC Act, consistent
with this new definition, to allow the Minister to accredit a broader range of
components of a state or territory authorisation processes under approval
bilateral agreements.
[202]. Ibid., p. 13.
[203]. Ibid. This note was not included in the third
reading version of the 2014 Bill, but was included the government
amendments to the 2014 Bill that were tabled
in the Senate in 2016.
[204]. Explanatory
Memorandum, op. cit., p. 12.
[205]. EDO,
‘EPBC
Act reform: National environmental law reform on a knife edge’, EDO
website, 4 September 2020.
[206]. McCormick and Tomaras, Environment
Protection and Biodiversity Conservation Amendment (Bilateral Agreement
Implementation) Bill 2014, op. cit., p. 17.
[207]. Explanatory
Memorandum, op. cit., p. 13.
[208]. EPBC Act, paragraph 46(3)(a).
[209]. EPBC Act, paragraph 46(3)(b).
[210]. EPBC Act, paragraph 46(3)(c). As noted
earlier, under sections 50-54 of the EPBC Act, the Minister must be
satisfied of certain matters before accrediting a management arrangement or
authorisation process under section 46 for the purposes of an approval
bilateral agreement. These include consistency with relevant international
obligations.
[211]. Explanatory
Memorandum, op. cit., p. 14.
[212]. Environment
Protection and Biodiversity Conservation Amendment (Bilateral Agreement
Implementation) Bill 2014, amendment, sheet
HU128, Senate, April 2016, (12), item 8A.
[213]. D Pearce and S Argument, Delegated legislation in
Australia, 5th edn, LexisNexis Australia, Sydney, 2017, paras
12.22–12.25.
[214]. Ibid.; see also, for example: Downey v Pryor (1960)
103 CLR 353, [1960]
HCA 49.
[215]. Explanatory
Memorandum, op. cit., p. 14.
[216]. Samuel,
Interim report, op. cit., p. 53.
[217]. ‘Amend’
is defined in proposed subsections 46A(5) and 47A(5) to include
‘repeal and remake’. That is, amendments to an accredited
arrangement or process, or specified manner of assessment, include both the
repeal and remaking of an arrangement or process, or the manner of assessment: Explanatory
Memorandum, op. cit., p. 16.
[218]. Proposed
subsections 46A(3) and 47A(3) require the Minister to publish this
determination as soon as practicable after it is made, while proposed
subsections 46A(4) and 47A(4) clarify that the determination is not a
legislative instrument.
[219]. Explanatory
Memorandum, op. cit., p. 16.
[220]. Ibid.
[221]. Senate
Environment and Communications Legislation Committee, Report, op. cit.,
p. 35.
[222]. Explanatory
Memorandum, op. cit., pp. 17–18.
[223]. A
definition of an ‘agency of a State or self-governing Territory’ is
set out in section 528 of the EPBC Act.
[224]. Explanatory
Memorandum, op. cit., pp. 17–18.
[225]. Ibid.,
p. 18.
[226]. Senate
Environment and Communications Legislation Committee, Report, op. cit.,
p. 36.
[227]. Explanatory
Memorandum, op. cit., pp. 18–19.
[228]. Ibid.,
p. 19.
[229]. Ibid.
[230]. Scrutiny
digest, 13, op. cit., pp. 27–28.
[231]. Ibid.
[232]. Explanatory
Memorandum, op. cit., p. 19.
[233]. Scrutiny
digest, 11, op. cit., p. 12.
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