This article was written by Anna Vella, Aaron Beale and Tessa Boardman.
It has only been a little over one month since the Interim Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) was released.
However, the Environment Minister, Sussan Ley (Environment Minister) has already delivered on a commitment to introduce early measures to amend the EPBC Act in advance of the final report on the Independent Review, which is due in October 2020.
On 27 August 2020, the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (Bill) was introduced to Parliament under the banner of proposing to facilitate 'legally robust devolution of environmental approvals to States and Territories'.[1]
Overview of the Bill
The Bill aims to implement the Government's single-touch reforms for environment approvals, specifically the operation of bilateral agreements under Part 5 (Bilateral Agreements) of the EPBC Act. Full implementation of this reform will mean that State and Territory governments will be able to make a single approval decision accounting for both state matters and matters of national environmental significance.
In the second reading speech, the Environment Minister, explained:
The bill streamlines environmental approvals under the EPBC Act 1999 by removing duplication with state and territory processes. It does this by ensuring the legally robust devolution of environmental approvals to the states and territories.
These reforms are 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.
Bilateral agreements will be underpinned by strong Commonwealth-led national environmental standards.[2]
As at the date of publication of this update, draft or working versions of any national environmental standards – the scope of those standards and how they are to support a bilateral arrangement between the Commonwealth and the States and Territories – have not been made publicly available.
Referral of Controlled actions
The Bill proposes to make amendments to Part 7 (Deciding whether approval of actions is needed) of the EPBC Act to confirm that where an action is or could be covered by an approval bilateral agreement it will be assessed by the relevant State or Territory. In these circumstances, it also proposes to clarify that proponents will not need or be able to refer the action to the Commonwealth.[3]
Flexibility in performing assessment of controlled actions
The Bill also proposes to make amendments to ensure that in the event an approval bilateral agreement is suspended or cancelled, or ceases to apply to a particular action, there is an efficient process to enable the Commonwealth to make an approval decision, allowing the Commonwealth to use all or part of an assessment process carried out by the relevant state or territory in its determination on the matter.[4]
The approval bilateral agreements are to enable the Commonwealth to 'call-in' an action for approval in appropriate circumstances, including where adequate environment protection is not being achieved.[5] In the second reading speech, the Environment Minister noted that the amendments 'ensure that projects can be picked up from where they left-off', providing 'a clear pathway for approval processes' meaning 'projects do not have to be sent back to the starting line'.[6]
Amendments relating to water resources
Currently, the EPBC Act does not allow for the accreditation of State or Territory processes for the approval of large coal mining and coal seam gas developments that are likely to have a significant impact on water resources.
The Bill proposes to remove this restriction on processing by State and Territory governments through empowering the Environment Minister to accredit a State or Territory process to approve a decision on the water trigger.[7] The Bill contemplates an approval bilateral agreement that applies in relation to the water trigger to include an undertaking by the State or Territory to obtain and take into account the advice of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (IESC).[8]
At present, unless the State or Territory is party to the National Partnership Agreement on Coal Seam Gas and Large Scale Coal Mining Development 2012, the Environment Minister is prohibited from giving that State or Territory the right to request advice of the IESC.[9] The Bill seeks to remove this impediment.
Amendments relating to bilaterally accredited authorisation processes
Under the current provision of the EPBC Act, the Environment Minister may only accredit an authorisation process if it is set out in law of the relevant State or Territory. The Bill proposes to amend various sections of the EPBC Act to allow for the bilateral accreditation of State or Territory authorisation processes that meet the appropriate EPBC Act standards. This amendment would enable the Environment Minister to 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 legislation itself, provided they meet appropriate Commonwealth standards for assessing and approving actions.[10]
Miscellaneous amendments
The Bill also proposes to make a series of minor, technical amendments to the EPBC Act aimed at clarifying and improving the operation through:
- allowing approval bilateral agreements to include approvals made by any person or organisation authorised by the State or Territory (such as local governments), rather than only entities that meet the EPBC Act definition of 'the State' or an 'agency of the State';
- clarifying that approval bilateral agreements could apply to projects that had been approved before the Environment Minister accredits the State or Territory process;
- clarifying that the Environment Minister can take into account all matters that she considers relevant when deciding whether to accredit a management arrangement or authorisation process; and
- ensuring that bilateral agreements can make reference to the most current version of instruments and policy documents.[11]
Transitional arrangements for proponents
The Bill will have implications for proponents for actions that have been referred to the Australian Government for assessment and approval under section 68 of the EPBC Act prior to the commencement date of a new approval bilateral agreement. Under the Bill, the single-touch regime will apply to referrals to the Australian Government made before, on or after the day the amendments commence. However, the Minister may determine, in writing, that the amendments do not apply in relation to a referral of a proposal made before the commencement of the amendments.[12]
Next steps
The Bill has now been read a second time and will not be referred to the Environment Senate Committee for inquiry.[13] The Bill will now undergo consideration in detail by the House of Representatives.
As noted by Senator Sarah Hanson Young in her media release, the Bill replicates amendments proposed by the Environment Protection and Biodiversity Conservation (Bilateral Agreement Implementation) Bill 2014 introduced to Parliament on 14 May 2014 (2014 Bill).[14] The 2014 Bill was referred to the Senate Environment and Communications Legislation Committee for Inquiry and report.
For a trip down memory lane, the full report of the Environment and Communications Legislative Committee on the 2014 Bill can be found here.
The impact of the Bill and what this means for a wholesome consideration – or a pre-emptive dismissal – of recommendations in the final report of the Independent Review remains to be seen.
Please contact us if you would like to further understand the implications of the Bill for your specific project. We will continue to monitor and keep you updated on the Independent Review and proposed reforms to the EPBC Act.
[1] Explanatory Memorandum, Environment Protection and Biodiversity Amendment (Streamlining Environmental Approvals) Bill 2020 (Cth) 1.
[2] Commonwealth, Parliamentary Debates, House of Representatives, 27 August 2020, 20 (Sussan Ley, Minister for Environment).
[3] Explanatory Memorandum, Environment Protection and Biodiversity Amendment (Streamlining Environmental Approvals) Bill 2020 (Cth) 4.
[4] Ibid 5.
[5] Commonwealth, Parliamentary Debates, House of Representatives, 27 August 2020, 20 (Sussan Ley, Minister for Environment).
[6] Ibid.
[7] Explanatory Memorandum, Environment Protection and Biodiversity Amendment (Streamlining Environmental Approvals) Bill 2020 (Cth) 11.
[8] Ibid.
[9] EPBC Act s 505D(1)(b).
[10] Explanatory Memorandum, Environment Protection and Biodiversity Amendment (Streamlining Environmental Approvals) Bill 2020 (Cth) 13.
[11] Ibid 17, 18 and 19.
[12] Ibid 5.
[13] Sarah Hanson-Young, 'New Environment laws a carbon copy of Tony Abbott's 2014 attack' (Media Release, 27 August 2020).
[14] Ibid.
