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Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014

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2013-2014

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (BILATERAL AGREEMENT IMPLEMENTATION) BILL 2014

 

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of the Minister for the Environment, the Hon Greg Hunt MP)

 

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED

 

 

 

ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (BILATERAL AGREEMENT IMPLEMENTATION) BILL 2014

OUTLINE

The Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014 (the Bill ) amends the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act ) to facilitate the efficient and enduring implementation of the Australian Government’s one stop shop policy for environmental approvals.

The Government has committed to delivering a one stop shop for environmental approvals that will accredit State and Territory environmental planning systems under the EPBC Act to create a single environmental assessment and approval process for nationally protected matters in each State and Territory. The one stop shop policy aims to simplify the approvals process for business, lead to faster decisions and improve Australia's investment climate, while maintaining high environmental standards.

The EPBC Act already provides for bilateral agreements. The Bill makes technical amendments to existing provisions of the EPBC Act to ensure that those agreements will operate effectively and efficiently and to provide certainty to proponents.

The amendments in the Bill relate to bilateral agreements under Part 5 (Bilateral agreements) of the EPBC Act and include:

·          allowing States and Territories to be accredited for approval decisions on large coal mining and coal seam gas developments that are likely to have a significant impact on a water resource;

·          ensuring that all States and Territories are able to be declared under the EPBC Act for the purposes of requesting advice from the Independent Expert Scientific Committee;

·          requiring that an approval bilateral agreement, which covers large coal mining and coal seam gas developments that are likely to have a significant impact on a water resource, must include an undertaking by the state or territory to obtain and take into account the advice of the Independent Expert Scientific Committee;

·          providing an additional function to the Independent Expert Scientific Committee to provide advice to the Commonwealth about the operation of a bilateral agreement in relation to large coal mining and coal seam gas developments that are likely to have a significant impact on a water resource;

·          clarifying that proponents do not need to make referrals to the Commonwealth for actions that are covered by an approval bilateral agreement;

·          ensuring there is an efficient process to enable the Commonwealth to complete the approval process where an approval bilateral agreement is suspended or cancelled, or ceases to apply to a particular action;

·          ensuring that State or Territory processes that meet the appropriate EPBC Act standards can be accredited for bilateral agreements, recognising the different technical approaches taken by different States and Territories to give legal effect to those processes;

·          providing for an efficient process so that the relevant bilateral agreement continues to apply to an accredited State or Territory management arrangement or authorisation process, where there are minor amendments to that arrangement or process; and

·          a number of minor miscellaneous amendments, including:

-        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 Minister accredits the State or Territory process (as long as the action was approved in accordance with the relevant accredited process);

-        clarifying that the Minister can take into account all matters that the Minister 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.

FINANCIAL IMPACT STATEMENT

The one stop shop reform supports improved economic efficiency through more timely assessment and approval of projects, while maintaining high environmental standards. The Bill introduces amendments to the EPBC Act to facilitate the more effective and efficient implementation of the one stop shop reform. The Bill will not have direct financial impacts; however the reform more broadly will result in productivity improvements including increased private sector investment in development activities.

REGULATORY IMPACT STATEMENT

A short form Regulatory Impact Statement was prepared on implementation matters for the one stop shop reform and associated minor amendments to the EPBC Act. These reforms are largely technical and the Office of Best Practice Regulation has agreed that the regulatory costs are zero (Office of Best Practice Regulation proposal ID 15330).



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS - PART 3 HUMAN RIGHTS (PARLIAMENTARY SCRUTINY) ACT 2011

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).



Overview of the Bill

The Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014 (the Bill ) amends the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act ) to facilitate the efficient and effective implementation of the Australian Government’s one stop shop reform for environmental approvals. Commonwealth accreditation of State and Territory government processes for environmental approval will reduce duplication and create a single, faster approval process for regulatory activities under the EPBC Act while maintaining high environmental standards.



Human rights implications

This Bill does not engage any of the applicable rights or freedoms. It assists in effectively and efficiently facilitating the Commonwealth’s accreditation of State and Territory government approval processes in order to reduce duplication in the processing of environmental approvals and provides for a single approval process for actions that have, or which are likely to have, a significant impact on matters of national environmental significance under the EPBC Act.

The EPBC Act already provides for bilateral agreements. The Bill makes technical amendments to existing provisions of the EPBC Act to ensure that those agreements will operate effectively and efficiently and to provide certainty to proponents.

The Bill also removes the current restriction in the EPBC Act which prevents approval bilateral agreements applying to actions for the purposes of section 24D or 24E of the EPBC Act (section 46). Currently the Minister cannot accredit a State or Territory management arrangement or authorisation process under section 46 of the EPBC Act for the purposes of approvals of large coal mining or coal seam gas developments which have a significant impact on water resources. The Bill removes this restriction.

 

 

 

The removal of this restriction does not remove the requirement for the assessment and approval of actions which have a significant impact on water resources in relation to large coal mining or coal seam gas developments. It merely allows the Minister to accredit a State or Territory management arrangement or authorisation process for the purposes of providing such an assessment and approval, if the Minister is satisfied that the arrangement or process meets the standards of the EPBC Act. It therefore does not remove any protections for users of water resources, including for drinking and agricultural purposes. Water resources in relation to large coal mining or coal seam gas developments will be treated in the same manner as other matters of national environmental significance under the EPBC Act.

While these amendments relate to the offence provisions of the EPBC Act (sections 24D and 24E), the Bill does not affect the operation of these offence provisions in any way.

The Bill also does not alter the rights to appeal or review under the EPBC Act or an accredited state process.

Conclusion

This Bill is compatible with human rights as it does not raise any human rights issues.

 

 

Minister for the Environment, the Hon Greg Hunt MP

 



 

TABLE OF CONTENTS

 

Schedule 1   Referral of controlled actions                                                                                 

Schedule 2   Flexibility in performing assessment of controlled actions                                     

Schedule 3   Accreditation of certain State processes                                                                

                     Part 1 - Amendments relating to water resources                                                  

                     Part 2 - Amendments relating to bilaterally accredited authorisation processes   

Schedule 4   Minor amendments of bilateral agreements

Schedule 5   Miscellaneous                                                                                                         

 



                                                                   Schedule 1           referral of controlled actions

Purpose of the amendments relating to the referral of controlled actions

1.1              Schedule 1 makes 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 and approved by the relevant State or Territory. The person proposing to take the action will not be required or able to refer the action to the Commonwealth. This Schedule clarifies the intention of the EPBC Act (as stated in section 66 of Part 6 (Simplified outline of this Chapter)) that Chapter 4 (Environmental assessments and approvals) of the EPBC Act does not deal with actions that a bilateral agreement declares not to need approval under the EPBC Act.

1.2              The provisions in Schedule 1 are of a similar formulation to section 83 of Part 8 (Assessing impacts of controlled actions) which provides that Part 8 of the EPBC Act does not apply in relation to the assessment of the impacts of an action if an action is covered by a bilateral agreement.

Item 1 - Section 66

1.3              Item 1 amends section 66 to specify in the simplified outline of Chapter 4, that Part 7 of the EPBC Act will not apply to actions covered by, or potentially covered by, approval bilateral agreements. Where an action that may be a controlled action has been approved, or is being, or is to be, assessed by a State or Territory under an approval bilateral agreement, Part 7 will not apply.

Item 2 - Before Division 1 of Part 7

1.4              Item 2 inserts Division 1 (Application of this Part) and section 66A into Part 7 of the EPBC Act. This section gives effect to the intention of the EPBC Act (as stated in section 66 of Part 6 of the EPBC Act) that Chapter 4 (Environmental assessments and approvals) does not deal with actions that a bilateral agreement declares not to need approval under the EPBC Act.

Action approved by State or Territory

1.5              Subsection 66A(1) will apply to prevent a person from making a referral in circumstances where the action has been approved in accordance with an accredited management arrangement or authorisation process under an operative provision of an approval bilateral agreement. These actions would be subject to a declaration under a bilateral agreement that they are within a class of actions specified within a bilateral agreement not to need approval under Part 9. Therefore referral to the Minister for a decision about whether the action is a controlled action (as defined by section 67) would be unnecessary.

Action being, or to be, assessed by State or Territory

1.6              Subsection 66A(2) will apply to prevent a person from making a referral where an action to be taken within a State or Territory, has been or will be assessed in accordance with an accredited management arrangement or authorisation process and there has not yet been an approval by the State or Territory.

1.7              This will exclude the referral of an action covered by a bilateral agreement at any point, either before, during or after the assessment of the action under the relevant accredited management arrangement or authorisation process prior to a decision being made about whether the action is to be approved. For example if an action is in a class of actions specified in the agreement as not requiring approval and the relevant State or Territory assessment report has been provided to the relevant State or Territory decision-maker but the decision-maker has not yet made a decision on approval, the action could not be referred to the Commonwealth under Part 7 of the EPBC Act.

1.8              Similarly, if an action has not yet been referred to a State or Territory for assessment in accordance with a bilaterally accredited management arrangement or authorisation process, but the action is one which would be subject to an accredited process and covered by a bilateral agreement, the person could not refer the action to the Commonwealth under Part 7 of the EPBC Act.

1.9              If an approval bilateral agreement has been cancelled or suspended, actions that were previously being assessed in accordance with a bilaterally accredited management arrangement or authorisation process, will be able to be referred to the Commonwealth. In these circumstances, the amendments at Schedule 2 (Flexibility in performing assessment of controlled actions) will apply to the relevant actions.

Effect of suspended bilateral agreement

1.10           Subsection 66A(3) will ensure there is no doubt that, in the event that a bilateral agreement is suspended generally or in relation to actions in a specified class of actions, the relevant action/s will be able to be referred to the Commonwealth.

Actions to be taken in 2 or more States or Territories

1.11           Subsection 66A(4) will provide that in circumstances where the action is to be taken in 2 or more States or Territories, the section does not operate unless the action operates in relation to each of those States or Territories. This provision will operate in circumstances where, for example, an action is taken in two States, and the action is covered by an approval bilateral agreement in one State but not covered by an approval bilateral agreement in the other State. In this situation, the action could be referred to the Commonwealth under Part 7 of the EPBC Act (that is, section 66A would not operate to take the action outside of Part 7 of the EPBC Act).

1.12           Items 3 to 11 (below) are consequential amendments required as a result of items 1 and 2 (above).

Item 3 - Division 1 of Part 7 (heading)

1.13           Item 3 repeals the current heading of Division 1 of Part 7 of the EPBC Act which is “Division 1 - Referral of proposals to take action” and substitutes a new heading: “Division 1A - Deciding whether approval of actions is needed”. Accordingly, all the current provisions of Division 1 will become Division 1A provisions.

Item 4 - Paragraph 74AA(1)(e)

1.14           This item is a consequential amendment as a result of item 5 and replaces the reference to Division 1A with a reference to Division 1B.

Item 5 - Division 1A of Part 7 (heading)

1.15           Item 5 repeals the current heading of Division 1A of Part 7 of the EPBC Act which is “Division 1A - Decision that action is clearly unacceptable” and substitutes a new heading: “Division 1B - Decision that action is clearly unacceptable”. This amendment is required because of items 2 and 3 which insert a new Division 1 of Part 7 and which rename the existing Division 1 to Division 1A.

Item 6 - Paragraph 74C(3)(b)

1.16           This item is a consequential amendment as a result of item 3 and replaces the reference to Division 1 with a reference to Division 1A.

Item 7 - Paragraph 77A(1A)(b)

1.17           This is a grammatical amendment required because of the amendment at item 8 which repeals paragraph 77A(1A)(c).

Item 8 - Paragraph 77A(1A)(c)

1.18           This item repeals paragraph 77A(1A)(c) which currently provides that, for the purposes of a ‘component decision’ under subsection 77A(1) in relation to decisions that an action is to be taken in a particular manner, it does not matter whether or not the Minister believes an action will be taken in accordance with a bilaterally accredited management arrangement or authorisation process pursuant to a bilateral agreement. This is a consequential amendment as a result of new section 66A and the clarification that proponents do not need to make referrals to the Commonwealth for actions that are covered by an approval bilateral agreement.

Item 9 - Paragraph 78(1)(ba)

1.19           This item repeals paragraph 78(1)(ba) in relation to the reconsideration of decisions made under subsection 75(1) on whether or not an action is a controlled action and which provisions of Part 3 of the EPBC Act are controlling provisions. This is a consequential amendment as a result of new section 66A and the clarification that proponents do not need to make referrals to the Commonwealth for actions that are covered by an approval bilateral agreement.

Items 10 and 11 - Paragraphs 156A(1)(a), 156F(1a) and 170A(b), Subsections 200(3), 215(3), 237(3) and 257(3) (notes)

1.20           Items 10 and 11 make consequential amendments to update references to Division 1 to the newly named Division 1A.

Item 12 - Application

1.21           Sub-item (1) makes it clear that the amendments made by Schedule 1 will apply to actions referred under section 68 before, on or after commencement.

1.22           For example, if the item commences on 1 January 2015 a person cannot refer an action to the Commonwealth under Part 7 of the EPBC Act on or after 1 January 2015 if the action is approved under a bilateral agreement or the action is being, or is to be, assessed under a bilateral agreement and a decision on approval has not yet been made.

1.23           Further to the application provision at sub-item (1), sub-item (2) provides the Minister with a discretion to determine that the amendments made by Schedule 1 do not apply in relation to a referral of an action under section 68 which has been made before the amendments commence.   

1.24           Sub-item (3) provides that a determination made under the application provision at sub-item (2) will not be a legislative instrument for the purposes of section 5 of the Legislative Instruments Act 2003 (Cth) (the LI Act ). This provision is merely declaratory of the law and it does not amount to an actual exemption from the LI Act.



                          Schedule 2           flexibility in performing assessment of controlled actions

Purpose of amendments relating to flexibility in performing assessment of controlled actions

2.1          The purpose of Schedule 2 is 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, including the option to use all or part of the relevant State or Territory assessment process.

2.2          This may occur in a number of circumstances, including:

(a)        under the one stop shop reform, it is expected that approval bilateral agreements will include provisions for an escalated dispute resolution process which will ensure that disputes between the parties to the agreement can be effectively addressed in a manner which maintains public and business confidence in the operation of the agreements. It is expected that clauses in approval bilateral agreements will allow, in certain limited circumstances, a State/Territory Minister or the Commonwealth Minister to declare that a particular action is not within the class of actions to which the approval bilateral agreement relates;

(b)        the nature or scope of an action may change during the assessment of the action, with the result that it is no longer within the class of actions to which the agreement relates. For example, if the scope of a project changes so that the action may now have a significant impact on Commonwealth waters, the action may no longer be within the class of actions to which the agreement relates;

(c)        a bilateral agreement may also be suspended or cancelled under Division 3 (Suspending and ending the effect of bilateral agreements) of Part 5 (Bilateral agreements) of the EPBC Act; or

(d)        a court may determine that an action is not within the class of actions to which the bilateral agreement relates.  

2.3          The amendments in this Schedule ensure that, in the circumstances outlined above, there is an efficient process available to the Minister to ensure that projects can be assessed and approved under Part 7 (Deciding whether approval of actions is needed), Part 8 (Assessing impacts of controlled actions) and Part 9 (Approval of actions) of the EPBC Act as necessary without repeating steps which have already been adequately undertaken by the State or Territory.

Item 1 - Section 66

2.4          Item 1 inserts updated clauses to the simplified outline for Chapter 4 (Environmental assessments and approvals) at section 66. The updated clause summarises the amendment at item 3 (discussed below) to confirm that an action will be taken to be referred to the Commonwealth if a declaration is made under a bilateral agreement that the action is no longer an action covered by the agreement.  

 

Item 2 - Subsection 68A(3)

2.5          Item 2 amends section 68A (Actions proposed to be taken under a contract etc) to confirm that subsection 68A(3) (which provides that no person, other than the first person to refer an action to the Commonwealth, is required or permitted to make a referral) will apply to referrals made under section 68 (Referral by person proposing to take action), including actions taken to have been referred to the Commonwealth under the new section 69A. 

Item 3 - After section 69

2.6          Item 3 inserts section 69A (Deemed referral of proposal if declaration made under bilateral agreement). Section 69A will provide that where a State or Territory or Commonwealth Minister makes a declaration under the relevant approval bilateral agreement that an action is no longer within a class of actions specified in the agreement, the person proposing to take the action is taken to have referred the proposal to the Minister at the time the declaration is made. This provision will ensure that the action can efficiently transition from an accredited State or Territory process to the assessment process under the EPBC Act.

2.7          Subsection 69A(3) will ensure that section 69A will apply to the action in this circumstance unless paragraph 68A(3)(a) applies in relation to the action.

2.8          Subsection 69A(4) will clarify that subsection 68(3), which requires that a person referring an action must state whether or not the person thinks the action is a controlled action, does not apply to actions which are taken to have been referred to the Commonwealth. Similarly, section 72, which prescribes the form and content of referrals will not apply to actions which are taken to have been referred to the Commonwealth.

2.9          Subsection 69A(5) will provide that when an action is taken to have been referred to the Commonwealth,  the requirement to invite comments from other Commonwealth Ministers (under subsection 74(1)) and the requirement to invite comments from appropriate State or Territory Ministers (under subsection 74(2)) on the referral of a proposal to take an action is discretionary.  

2.10        Subsection 69A(5) will also provide that when an action is taken to have been referred to the Commonwealth, the Minister must publish the declaration that the action is no longer within the specified class of actions specified in the bilateral agreement however, the Minister has discretion to publish an invitation to comment from the public on whether the proposal is a controlled action within 10 business days.

2.11        Subsection 69A(5) will therefore maintain the requirement to publish information on the referral on the internet (which will be the declaration made under the bilateral agreement), but will allow the Minister to decide whether or not to seek public comments on whether the proposal is a controlled action.

 

 

 

2.12        This provides flexibility in whether or not public comments are sought on the proposal, for example, in circumstances where the relevant accredited State or Territory may have already invited comments on whether the action is likely to have a significant impact on a matter protected under Part 3 of the EPBC Act. The nature and magnitude of the impacts may also be well understood from the parts of the State or Territory process which have already been carried out. It may therefore be appropriate for the Minister to make a decision on whether or not the action is a controlled action in a short timeframe and without inviting public comments on the proposal. In other circumstances, the Minister may choose to invite public comments within 10 business days.

2.13        Section 69A will apply only to actions where a State or Territory or Commonwealth Minister makes a declaration under the relevant approval bilateral agreement that an action is no longer within a class of actions specified in the agreement. It will not apply in cases where the bilateral agreement is cancelled or suspended. If a bilateral agreement is cancelled or suspended, the person proposing to the action must determine whether to refer the proposal to the Minister under section 68.

Item 4 - Subparagraph 74AA(1)(b)(i)

2.14        Item 4 amends subparagraph 74AA(1)(b)(i), which relates to the offence of taking an action before a decision is made in relation to a referral. Subparagraph 74AA(1)(b)(i) will provide that a person commits an offence if the person takes an action before the Minister has made a controlled action decision on a proposal that has been taken to have been referred to the Commonwealth under section 69A. This is consistent with the restriction on taking actions before a decision has been made, and which applies to actions referred to the Commonwealth under section 68.   

Item 5 - Section 85

2.15        Item 5 inserts updated clauses to the simplified outline for Division 3 (Decision on assessment approach) of Part 8 of the EPBC Act. Section 85 will include that, as an alternative to the Minister choosing one of the assessment approaches set out in the simplified outline, the Minister may declare that an assessment completed, or to be completed, by a State or Territory under a bilateral agreement is an assessment for the purposes of Part 8 (as discussed below at item 10).

2.16        Section 85 will also include that, if a State or Territory has partially completed an assessment of the relevant impacts of an action, the Minister may determine that steps of the State or Territory process are to be used for the purposes of assessing the action under Part 8, and the remaining steps are to carried out under an assessment approach under Part 8 of the EPBC Act.

2.17        Where there is an assessment bilateral agreement which covers the action, the completion of the remaining assessment steps by the State or Territory would be ordinarily completed under a relevant assessment bilateral agreement with the State or Territory under Part 5 of the EPBC Act.

 

 

2.18        If assessment under the relevant assessment bilateral agreement is not possible (for example, in circumstances where the action will not be in the class of actions declared under the assessment bilateral agreement to not need assessment under Part 8), then the Minister will determine the most appropriate assessment approach under Part 8 of the EPBC Act to conclude the assessment of the action.   

Item 6 - After paragraph 87(3)(c)

2.19        Item 6 inserts paragraph 87(3)(c)(a), which will add a relevant consideration to the other matters the Minister must consider when deciding on the approach for assessment under Part 8 of the EPBC Act in circumstances where an action is taken to have been referred to the Commonwealth or the action is being assessed under a bilateral agreement and the agreement is suspended or cancelled. In these circumstances, paragraph 87(3)(c)(a) will provide that the Minister must consider the extent to which a partially completed assessment of the action by the State or Territory can be used, and an assessment completed, in deciding on the assessment approach under section 87. 

Items 7 and 8 - Paragraphs 87(4)(a) and 87(4)(c)

2.20        Item 7 and 8 amend section 87(4) which currently provides for an accredited assessment process. The amendment will provide the Minister with the option of making a decision that the assessment approach of a particular action is an accredited assessment, even in circumstances where part of the assessment has already been completed by the State or Territory under an approval bilateral agreement or assessment bilateral agreement. Currently, section 87(4) only provides for accreditation of a State or Territory assessment that has not already commenced.

2.21        The Minister must be satisfied that the process has been, is being or is to be carried out under a law of the Commonwealth, a State or a self-governing Territory and that there has been or will be an adequate assessment of the relevant impacts of the action.

2.22        These amendments will reduce duplication by providing discretion for the Minister to be satisfied that a complete or partially completed accredited State or Territory assessment process can be applied for the purposes of a decision on whether or not to approve an action under Part 9. 

Item 9 - At the end of section 87

2.23        Item 9 inserts the new subsection 87(7) which provides that, in the circumstances where a State or Territory has partially completed an assessment of the relevant impacts of an action and the Minister decides to complete the assessment under an approach under Part 8 of the EPBC Act, the Minister must make a determination on:

(a)        which steps of the State or Territory assessment process are to be used for the purposes of assessing the action; and

(b)        the remaining steps to be carried out under the assessment approach chosen to complete the assessment under Part 8.

 

2.24        Subsection 87(7) will apply whenever a State or Territory has partially completed an assessment and the Minister decides to complete the assessment under an approach under Part 8 of the EPBC Act. That is, this step is not limited to actions which are partially completed and are taken to be referred to the Commonwealth under section 69A. It would include, for example, actions which were previously being assessed by the State or Territory under a now cancelled approval bilateral agreement and for which an approval decision has not yet been made. In this instance, the action may be referred to the Commonwealth under section 68. As the State or Territory has partially completed the assessment of the relevant impacts of the action if the Minister decides to complete the assessment under an approach under Part 8, the Minister would be required to make a determination under subsection 87(7). 

2.25        As the particular assessment steps in State or Territory processes which are defined in either accredited management arrangements or authorisation processes in approval bilateral agreements or the specified manner of assessment in assessment bilateral agreements will differ, and may not align with the steps under the various assessment approaches under Part 8, this determination will make it clear which steps have been completed by the State or Territory for the purposes of Part 8 and which steps remain to be completed by the Commonwealth under Part 8 of the EPBC Act.

2.26        Item 9 also inserts subsection 87(8) which will clarify that a determination made by the Minister under subsection 87(7) is not a legislative instrument for the purposes section 5 of the LI Act . This subsection will clarify that the instrument is not within the meaning of a legislative instrument under section 5 of the LI Act. This provision is merely declaratory of the law and it does not amount to an actual exemption from the LI Act. 

Item 10 - After section 87

2.27        Item 10 inserts a new section 87A to provide the Minister with the option of making a determination that an assessment by the State or Territory under a bilateral agreement is an assessment for the purposes of Part 8 of the EPBC Act and that the Minister may then make a decision on whether or not to approve the action under Part 9 of the EPBC Act.

2.28        Subsection 87A(1) will allow the Minister to make this determination in circumstances where:

(a)        subsection 69A(2) applies; and

(b)        the Minister has decided under section 75 that the action is a controlled action; and

(c)        an assessment of the relevant impacts of the action has been made by a State or Territory under a bilateral agreement.

2.29        Subsection 87A(2) will confirm that the assessment by the State or Territory may be completed before or after the declaration by the Commonwealth or State or Territory Minister under the bilateral agreement that the action in a class of actions specified in the agreement is no longer an action covered by the agreement. This will provide for the State or Territory to complete the assessment following the declaration under the bilateral agreement (as described in section 69A) and before the Minister makes a determination under subsection 87A(1).

2.30        Subsection 87A(3) will clarify that a determination made by the Minister under subsection 87A(1) is not a legislative instrument for the purposes of section 5 of the LI Act. This subsection will clarify that the instrument is not within the meaning of a legislative instrument under section 5 of the LI Act. This provision is merely declaratory of the law and it does not amount to an actual exemption from the LI Act. 

2.31        Item 10 also inserts section 87B to provide the Minister with the option of making a determination that the assessment by the State or Territory under a bilateral agreement is an assessment for the purposes of Part 8 of the EPBC Act. This provision is necessary to ensure projects which have been assessed under the assessment bilateral agreement do not require a duplicative reassessment under the EPBC Act, and that the Minister can rely on the State or Territory assessment.

2.32        Subsection 87B(1) will allow the Minister to make this determination in circumstances where:

(a)        an assessment has been made by a State or Territory under an approval bilateral agreement; and

(b)        the approval bilateral is suspended or cancelled; and

(c)        at the time of the suspension or cancellation, the action has not been approved by the State or Territory. 

2.33        Subsection 87B(2) will clarify that a determination made by the Minister under subsection 87B(1) is not a legislative instrument for the purposes of section 5 of the LI Act. This subsection will clarify that the instrument is not within the meaning of a legislative instrument under section 5 of the LI Act. This provision is merely declaratory of the law and it does not amount to an actual exemption from the LI Act. 

Item 11 - At the end of section 91

2.34        Item 11 inserts subsection 91(3) to confirm that if the Minister has made a determination under subsection 87(7) (discussed at item 9 above), the written and published notice of decision on the assessment approach must specify which steps of the State or Territory assessment process are to be used and which steps are to be carried out under Part 8 of the EPBC Act.  

Item 12 - After paragraph 130(1B)(a)

2.35        Item 12 inserts paragraph 130(1B)(aa) which will provide a 40 business day timeframe for a decision by the Minister on whether or not to approve the taking of an action if a determination under section 87A or section 87B has been made in respect of the action. This provision will provide certainty to the public, and persons proposing to take an action, of the timeframe in which an approval decision is required in these circumstances.

2.36        The Minister may request additional information under section 132 before making a decision within the timeframe provided for under new paragraph 130(1B)(a).

2.37        Items 13 to 16 are consequential amendments required as a result of the amendments at items 1 to 12.  

Item 13 - Subsection 158A(1) (after paragraph (d) of the definition of approval process decision )

2.38        Item 13 inserts paragraph 158A(1)(da) which adds to the list of decisions which are ‘approval process decisions’ a decision to make a determination under sections 87A or 87B that an assessment by a State or Territory is an assessment for the purposes of Part 8.

Item 14 - Paragraph 170C(1)(a)

2.39        Item 14 clarifies that section 170C relating to the withdrawal of a referral to take an action applies to both a referral under section 68 and a proposal that is taken to have been referred to the Commonwealth.

Item 15 - Paragraph 303FRA(3)(a)

2.40        Item 15 inserts references to the decisions under section 87A and 87B into section 303FRA which specifies the assessment approach decisions under Part 8 of the EPBC Act for which regulations may be made in relation to Part 13A assessments.

Item 16 - Section 528

2.41        Item 16 inserts the definition of the Environment Minister, as the Minister administering the EPBC Act, into Part 23 (Definitions) of the EPBC Act. This is necessary as new section 69A refers to the Environment Minister.

Item 17 - Application

2.42        This item sets out that the amendments in Schedule 2 will apply to actions that:

(a)        have been assessed by a State or Territory before the amendments commence. This will include actions which have been assessed by the State or Territory, but for which have not yet been approved by the State or Territory; or

(b)        are being assessed by a State or Territory on the day the amendments commence; or

(c)        will be assessed by a State or Territory on or after the day the amendments commence. This will include actions which have not yet been referred to the State or Territory for assessment and approval under the relevant accredited management arrangement or authorisation process.



                                                    Schedule 3           Accreditation of certain state processes

Part 1 - Amendments relating to water resources

Purpose of amendments relating to water resources

3.1          The EPBC Act includes water resources in relation to coal seam gas and large coal mining development as a matter protected under Part 3 (sections 24D and 24E) of the EPBC Act. This is commonly known as the ‘water trigger’. As a result of the water trigger, coal seam gas and large coal mining developments require assessment and approval if they have, will have, or are likely to have a significant impact on a water resource. Appropriate conditions as part of the project approval can be set to manage impacts on water resources. 

3.2          The purpose of Part 1 of Schedule 3 is to remove duplication and promote streamlined, efficient environmental assessments and approvals by allowing States and Territories to be accredited under the EPBC Act to approve actions in relation to coal seam gas and large coal mining development that have, will have or are likely to have a significant impact on a water resource. This is consistent with all other matters of national environmental significance.  

3.3          Part 1 of Schedule 3 will also permit those States and Territories that are not currently a party to the National Partnership Agreement on Coal Seam Gas and Large Scale Coal Mining Development (the NPA ) between the Commonwealth and States and Territories (that commenced on 14 February 2012) to be declared for the purposes of requesting advice from the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (the IESC ) under Part 19 of the EPBC Act.

3.4          In addition, to strengthen the assurances relating to States and Territories approving water trigger projects under bilateral agreements, Part 1 will require that an approval bilateral agreement, which covers large coal mining and coal seam gas developments that are likely to have a significant impact on a water resource, must include an undertaking by the State or Territory to obtain and take into account the advice of the IESC.

3.5          Part 1 will also provide an additional function to the Independent Expert Scientific Committee to provide advice to the Environment Minister about the operation of a bilateral agreement in relation to the water trigger. This will allow the Minister to request advice on the extent to which a State or Territory has considered the initial advice of the IESC on large coal mining and coal seam gas developments.

Item 1 - Subsection 29(1)

3.6          Item 1 amends subsection 29(1) to enable 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 (sections 24D and 24E) to be declared under an approval bilateral agreement as actions that do not need approval under Part 9 of the EPBC Act for the purposes of a provision under Part 3.

3.7          This amendment, together with item 2 (below) and item 1 of Schedule 5, will allow for the relevant State or Territory to make approval decisions under a bilaterally accredited authorisation process in relation to the water trigger.  

Item 2 - Subsections 46(2) and (2A)

3.8          Item 2 amends subsections 46(2) and (2A) so that a bilateral agreement may 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 Part 9.

3.9          Further to item 2 of this Schedule, Subsection 46(1) is amended by item 1 in Schedule 5.     

3.10        These amendments will allow for the relevant State or Territory to make approval decisions under a bilaterally accredited authorisation process in relation to the water trigger.

Items 2A, 2B and 2C - Subsection 48A(1) and after subsection 48A(2)

Mandatory undertakings in bilateral agreements

3.11     Section 48A of the EPBC Act currently specifies mandatory provisions for bilateral agreements. To strengthen the assurances relating to States and Territories approving water trigger projects under approval bilateral agreements, the amendments in items 2A, 2B and 2C would introduce a new mandatory requirement for approval bilateral agreements that cover the water trigger to include undertakings by the relevant State or Territory to seek, and to take into account, the advice of the IESC.

3.12     Under the one stop shop reform, the policy approach taken in the draft New South Wales and Queensland approval bilateral agreements is to include the requirement to seek and take into account IESC advice (clause 5.4). The amendments formalise this requirement in legislation.

3.13     Items 2A and 2B are consequential amendments as a result of item 2C, which inserts a new subsection 48A(2A) and (2B) to the EPBC Act relating to mandatory undertakings in bilateral agreements.

(a)        Item 2A to the Bill inserts a reference to the new subsection 48A(2A) so that an approval bilateral agreement would not have effect for the purposes of the EPBC Act, if the agreement did not include an undertaking specified in subsection 48A(2A).

(b)        Item 2B to the Bill inserts a reference to subsection 48A(2A) into subsection 48A(1).

3.14     Item 2C to the Bill inserts subsections 48A(2A) and (2B) to the EPBC Act. Subsection 48A(2A) would require that an approval bilateral agreement, which covers large coal mining and coal seam gas developments that are likely to have a significant impact on a water resource, must include an undertaking by the state or territory to obtain advice from the IESC if an action or any actions in a specified class of actions is likely to have a significant impact on water resource.  Paragraph 48A(2A)(b) would require that the state decision maker would have to take into account the IESC advice when deciding whether or not to approve the action or a class of actions that includes an action likely to have a significant impact on water resources.

3.15     Subsection 48A(2B) confirms that the undertakings to seek and take into account the advice of the IESC do not limit the ability of a State or Territory to request advice from the IESC.

Advice from the IESC on the operation of bilateral agreements

3.16     As a further assurance to the Commonwealth and the community for a State or Territory’s assessment of impacts to a water resource from high risk coal seam gas or large coal mining developments under a bilateral agreement, item 1 also inserts an additional function of the IESC to section 505D.

3.17     This amendment would allow the Commonwealth Minister to request supplementary advice from the IESC on high risk coal seam gas and large coal mining developments being assessed under a bilateral agreement. This would be supplementary to the advice which the IESC would provide to the State or Territory on a particular development. This could include advice on the extent to which the State or Territory has assessed the impacts of the development and considered the initial advice of the IESC.

3.18     The supplementary advice could assist the Commonwealth in monitoring the operation of the bilateral agreements and in ensuring that high, national environmental standards are maintained. It is likely that this would, in practice, be used with regard to projects with large potential impacts, a high degree of uncertainty about potential impacts, and/or subject to significant community concern.

Item 3 - Subsection 505E(1)

3.19        Item 3 is a consequential amendment as a result of item 4 (below) and removes the subsection ‘(1)’ from the provision so that it will be section 505E.

Item 4 - Subsection 505E(2)

3.20        Item 4 repeals subsection 505E(2) which currently operates to prevent the Minister from declaring, as a ‘declared State or Territory’, a State or Territory that is not a party to the NPA. The effect of the amendment means that the Minister may declare that any State or Territory (whether or not it is a party to the NPA) is a ‘declared State or Territory’ for the purposes of section 505E as amended.

Item 5 - Application

3.21        Sub-item (1) provides that amendments in Part 1 relating to water resources will apply to actions that are being assessed under the EPBC Act before, on or after the amendments commence.

3.22        The commencement of the amendments to repeal subsection 505E (2) will not affect the previous declarations made by legislative instrument by the Minister under section 505E (1). The previous declarations will continue in force.

3.23     Sub-item (2) confirms that the amendments made by items 2A, 2B and 2C apply to actions under an approval bilateral on or after the day the item commences, regardless of when the agreement was entered into.

 

 

Part 2 - Amendments relating to bilaterally accredited authorisation processes

Purpose of amendments relating to bilaterally accredited authorisation processes

3.24        The purpose of Part 2 of Schedule 3 is to ensure that appropriate types of authorisation processes can be accredited under approvals bilateral agreements. The provisions of this Part will ensure that an authorisation process may be accredited where it is:

(a)        set out in or made under a law of the State or Territory; or

(b)        set out in an instrument made under a law of a State or Territory.

3.25        The amendments will mean that 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.

3.26        Under the current provisions of the EPBC Act, the Minister may only accredit an authorisation process if it is ‘set out in a law of the State or Territory’. Authorisation processes that are made under a law of a State or Territory will still be required to be connected to the law of the State or Territory; however the Minister could decide to accredit processes set out in instruments made under laws. This may allow for more detailed arrangements which are elements of the authorisation process to be accredited by the Minister. As State or Territory authorisation processes will be subject to detailed analysis by the Commonwealth prior to making accreditation decisions, the standards for the protection of matters of national environmental significance will be maintained.

Item 6 - Subparagraph 29(1)(d)(ii)

3.27        Section 29 sets out the criteria under which a person may take an action described in a provision of Part 3 (Requirements for environmental approvals) of the EPBC Act without approval under Part 9 (Approval of actions) of the EPBC Act. In other words, when a person can take an action which has or is likely to have a significant impact on a matter of national environmental significance without approval from the Minister.

3.28        This item amends this section through subparagraph 29(1)(d)(ii) to ensure appropriate authorisation processes can be accredited under an approvals bilateral agreement. To do so, subparagraph 29(1)(d)(ii) provides that an authorisation process must be set out in or made under a law of the State or Territory or be set out in an instrument made under such a law.

3.29        This item is consequential to the amendment at item 8.

Item 7 - Subparagraph 31(1)(f)(ii)

3.30        Section 31 extends the operation of actions that may be covered by bilateral agreements to non-self-governing Territories.

 

 

3.31        This item amends this section through subparagraph 31(1)(f)(ii) to ensure flexibility in the authorisation processes which can be accredited under an approvals bilateral agreement. To do so, subparagraph 31(1)(f)(ii) provides that an authorisation process must be set out in or made under a law of the State or Territory or be set out in an instrument made under such a law.

3.32        This item is consequential to the amendment at item 8.

Item 8 - Subparagraph 46(2A)(a)

3.33        Section 46 provides that an approval bilateral agreement may declare actions do not need approval under Part 9 for the purposes of a specified provision of Part 3 of the EPBC Act.

3.34        This item amends this section through subparagraph 46(2A)(a) to ensure flexibility in the authorisation processes which can be accredited under an approvals bilateral agreement. To do so, subparagraph 46(2A)(a) provides that an authorisation process must be set out in or made under a law of the State or Territory or be set out in an instrument made under such a law.

Item 9 - Section 528 (definition of authorisation process )

3.35        This item amends the definition of an ‘authorisation process’ to be consistent with the changes made by the amendments in this Part, to ensure appropriate authorisation processes can be accredited under an approvals bilateral agreement. The definition also clarifies that an authorisation process may be wholly or partly set out in or made under, or set out in an instrument made under, a State or Territory law.

3.36         This amendment provides that an ‘authorisation process’ will be defined as a process:

(a)        made under a law of a State or self-governing Territory, or

(b)        set out in an instrument made under a law of a State or self-governing Territory.

3.37        This Part does not amend the provisions in the EPBC Act concerning the accreditation of authorisation processes set out in a law of the Commonwealth.

Item 10 - Application

3.38        This item provides that the amendments made by this Part will apply in relation to an action assessed under a bilaterally accredited authorisation process on or after the day this item commences.

 



                                                 Schedule 4             Minor amendments of bilateral agreements

Purpose of amendment relating to minor amendments of bilateral agreements

4.1          The purpose of Schedule 4 is to ensure that bilateral agreements made under the EPBC Act can provide for an efficient and enduring system for environmental assessments and approvals. To achieve this, Schedule 4 makes amendments to enable Part 5 (Bilateral agreements) of the EPBC Act to deal more effectively with minor changes to:

(a)        bilaterally accredited management arrangements or authorisation processes under approval bilateral agreements; or the

(b)        specified manner of assessment under assessment bilateral agreements.

4.2          These amendments are necessary because the EPBC Act does not currently include a process for dealing with minor changes to management arrangements or authorisation processes accredited under approvals bilateral agreements or assessment processes under assessment bilateral agreements. This Schedule would allow for States and Territories to make minor amendments to environmental assessment processes, particularly if this will result in better environmental outcomes, without the need for the amendment of an approvals bilateral agreement and the re-accreditation of a management arrangement or authorisation process. These amendments will therefore facilitate the continuous improvement of an accredited arrangement, process or manner of assessment and allow those processes to respond to changes in circumstances. This will provide certainty about the ongoing operation of the bilateral agreement.

4.3          This Schedule provides clear parameters around when variations may be made without the parliamentary and public consultation requirements of Part 5 of the EPBC Act, or the requirements for a minor amendment made under the current section 56A. The provisions strike the appropriate balance so that the Minister can approve minor changes to accredited arrangements, processes or the manner of assessment, while ensuring that accredited arrangements, processes or a manner of assessment cannot be fundamentally remade or accredited without the public and parliamentary scrutiny required under Part 5 of the EPBC Act. The criteria in the new provisions in the Schedule will mean that the Minister would need to be satisfied that the change would not reduce the assessment or protection outcomes provided for under the original accreditation decision. 

4.4          Where a Ministerial determination is made under these new provisions, the bilateral agreement would not need to be amended. The amendments to accredited arrangements, processes or the manner of assessment will be appropriately communicated on the Department’s website or directly as necessary.

4.5          These amendments will apply in addition to section 56A of the EPBC Act, which currently sets out a process for dealing with minor amendments to bilateral agreements. The existing provisions to allow for minor amendments to the bilateral agreement itself in Part 5 of the EPBC Act remain unchanged.

4.6          The new provisions will apply to amendments to the accredited management arrangement or authorisation process that meet the specified criteria, whereas the existing section 56A will apply to minor amendments to the bilateral agreement itself. 

Item 1 - After section 46

4.7          Item 1 inserts a new section 46A into the EPBC Act that applies in certain circumstances where a State or Territory amends a bilaterally accredited management arrangement or authorisation process.

4.8          Subsection 46A(2) will provide that the Minister may make a written determination that an amended management arrangement or authorisation process continues to be accredited under section 46 for the purposes of the approval bilateral agreement if the Minister is satisfied that the following criteria are met:

(a)        the amendment will not have, or is not likely to have, a material adverse impact on a matter protected by a provision of Part 3 (Requirements for environmental approvals) of the EPBC Act to which a declaration in the bilateral agreement relates; and

(b)        the amendment would not be likely to have a material adverse effect on a person’s ability to participate in the process provided for by the accredited management arrangement or authorisation process; and

(c)        the authorisation process or management arrangement continues to meet the normal accreditation requirements set out in paragraphs 46(3)(a) to (c), subsections 46(9), and section 55 of the EPBC Act. That is, the Minister is satisfied that:

(i)          the varied authorisation process or management arrangement continues to provide an adequate assessment of the impacts the action has or will have, or is likely to have, on each matter protected by Part 3 of the EPBC Act to which a declaration in the bilateral agreement relates; and

(ii)         actions approved in accordance with the management arrangement or authorisation process will not have unacceptable or unsustainable impacts on a matter protected by Part 3 of the EPBC Act to which a declaration in the bilateral agreement relates; and

(iii)        the varied management arrangement or authorisation process will continue to satisfy the relevant requirements in relation to relevant matters protected under Part 3 of the EPBC Act set out in subsections 51(2), 51A(2), 52A(2), 52(2), 53(2), 54(2) and section 55.  

(iv)       Further, subsection 46(9) requires that a Ministerial declaration made under these amendments must not give preference (within the meaning of section 99 of the Constitution) to one State or part of a State over another State or part of a State.

 

 

4.9          The amended process will therefore need to continue to satisfy the normal accreditation requirements under Part 5 of the EPBC Act. The Minister will need to assess whether the change to the process is such that those requirements are no longer met.

4.10        The test that there must be no material adverse impact on a matter protected under Part 3 of the EPBC Act and no material adverse effect on a person’s ability to participate in the process provided for by the arrangement or process will ensure that there is no reduction in the protection for Part 3 matters by the original process or arrangement. If the Minister wished to accredit a process where she or he considered that the change would have a material adverse effect on either a protected matter or a person’s ability to participate in the process, the Minister would need to follow the ordinary process in Part 5 of the EPBC Act. This would include public consultation on the amended bilateral agreement, and tabling of the process or arrangement in Parliament.

4.11        Under this process, the Minister will be able to continue to accredit a process where a State or Territory makes minor amendments to an accredited management arrangement or authorisation process such as:

(a)        minor changes to public consultation requirements, including increases and decreases to the time available for public consultation (as long as they continue to satisfy the specified tests);

(b)        revisions to requirements for the content of assessment documentation, including:

(i)          required information on potential impacts, where the changes would satisfy the tests; or

(ii)         additional information to be included in the environmental assessment report under an accredited process, such as alternatives for avoiding environmental impacts, the degree of certainty with which environmental impact can be predicted and evidence of mitigation measures;

(c)        including additional requirements relating to procedural fairness; and

(d)        changes to the name of an authorisation process (e.g. Administrative Procedures made under a State law which may be remade each calendar year but for which continue to meet the specified tests of the new provisions).

4.12        The making of a determination by the Minister under section 46A is discretionary.

4.13        Subsection 46(5) will confirm that amendments for the purposes of proposed subsection 46A(1) will include both the repeal and remaking of an accredited management arrangement or authorisation process. This will clarify that the new provisions would apply in circumstances where, for example, a State or Territory remakes the instrument which sets out a management arrangement or authorisation process from year to year, where any changes to the substance of the authorisation process meet the criteria in new section 46A.

 

4.14        Subsection 46A(4) will provide that a determination made by the Minister under subsection 46A(2) is not a legislative instrument for the purposes of section 5 of the LI Act . This subsection will clarify that the instrument is not within the meaning of a legislative instrument under section 5 of the LI Act. This provision is merely declaratory of the law and it does not amount to an actual exemption from the LI Act. 

4.15        Item 1 also inserts section 46B which specifies the application of a declaration under new section 46A. The determination will apply to actions approved under the relevant management arrangement or authorisation process before, on or after the day the declaration is made. It will not matter when the approval bilateral agreement was originally entered into.

Item 2 - After section 47

4.16        Item 2 inserts section 47A into the EPBC Act that applies in certain circumstances where the specified manner in which actions are assessed for the purposes of an assessment bilateral agreement made under section 47 is amended.

4.17        Subsection 47A(2) will provide that the Minister may make a determination in writing that the bilateral assessment agreement will continue to apply to an amended manner of assessment if the Minister is satisfied that the following criteria are met:

(a)        the amendment will not have, or is not likely to have, a material adverse effect on the assessment of the impacts actions have, will have, or are likely to have on a matter protected by Part 3; and

(b)        the amendment would not be likely to have a material adverse effect on a person’s ability to participate in the process for assessment; and

(c)        the requirements for entering into an assessment bilateral agreement continue to be met under subsection 47(2). That is, the amendment to the manner of assessment in the State or Territory assessment process provides for assessment of the impacts the action has or will have, or is likely to have, on each matter protected by Part 3 of the EPBC Act in relation to which the assessment bilateral agreement makes a declaration that actions do not require assessment under Part 8 (Assessing impacts of controlled actions) of the EPBC Act.

4.18        These provisions will capture amendments which improve the standard of assessment provided for under the specified manner, such as a requirement to include additional information in assessment documentation. The provisions will also capture minor changes such as:

(a)        minor changes to public consultation requirements

(b)        revisions to requirements for the content of assessment documentation, such as more upfront information on potential impacts

(c)        providing clarity about the nature of the comments being sought during the public consultation period on all referrals, and

(d)        including additional requirements relating to procedural fairness.

4.19        The making of a determination by the Minister under section 47A is discretionary.

4.20        Subsection 47A(3) will provide that the Minister must publish a determination made under subsection 47A(2) as soon as practicable after it is made.

4.21        Subsection 47A(5) will confirm that amendments for the purposes of proposed subsection 47A(1) will include both the repeal and remaking of a manner of assessment. This will clarify that the new provisions would apply in circumstances where, for example, a State or Territory remakes the instrument which sets out a specified manner of assessment from year to year, where any changes to the substance of the manner of assessment meet the criteria in new section 46A. For example, the provisions would allow the Minister to determine that an assessment process which has been revised or remade, continues to be a specified manner of assessment without further accreditation where any changes to the substance of the assessment process meet the specified criteria.

4.22        Subsection 47A(4) will provide that a determination made by the Minister under subsection 47A(2) is not a legislative instrument for the purposes of section 5 of the LI Act. This subsection is intended to assist interpretation by clarifying that the instrument is not within the meaning of a legislative instrument under section 5 of the LI Act. This provision is merely declaratory of the law and it does not amount to an actual exemption from the LI Act. 

4.23        Item 2 also inserts section 47B which specifies the application of a declaration under new section 47A. The determination will apply to actions assessed under the relevant process before, on or after the day the declaration is made. It will not matter when the approval bilateral agreement was originally entered into.



                                                                                             Schedule 5           miscellaneous

Purpose of the amendments in Schedule 5

5.1          Schedule 5 make a series of minor, technical amendments to Part 5 (Bilateral agreements) of the EPBC Act to clarify and improve its operation in relation to the making and implementation of bilateral agreements. The amendments:

(a)        allow for a broader range of entities to approve actions under an accredited management arrangement or authorisation process, as long as the arrangement or process meets the applicable statutory considerations and standards for accreditation;

(b)        clarify approval bilateral agreements could apply to projects that had been approved before the Minister accredits the State or Territory process (as long as the action was approved in accordance with the relevant accredited management arrangement or authorisation process);

(c)        clarify the Minister can take into account all matters that the Minister considers relevant when deciding whether to accredit a management arrangement or authorisation process; and

(d)        ensure that bilateral agreements can make reference to the most current version of instruments and policy documents.

Item 1 - Subsection 46(1)

5.2          Item 1 will amend section 46(1) to:

(a)        allow approvals bilateral agreements to include declarations which operate for the purposes of sections 24D and 24E (commonly known as the water trigger) of the EPBC Act (consistent with the amendments in Part 1 of Schedule 3);

(b)        allow for a broader range of entities to approve actions under an accredited management arrangement or authorisation process, as long as the arrangement or process meets the applicable statutory considerations and standards for accreditation; and

(c)        clarify the current operation of section 46(1), that an action may be approved in accordance with the accredited management arrangement or authorisation process prior to the accreditation of the process for the purposes of an approvals bilateral agreement.

5.3          The amended section 46(1) will allow a bilateral agreement to declare that actions involving coal seam gas or large coal mining developments which have, or which are likely to have, a significant impact on water resources are actions within a class of action that do not require approval under Part 9. This amendment is further to those amendments made to subsection 29(1) and subsections 46(2) and (2A), by items 1 and 2 of Schedule 3.

 

 

5.4          Item 1 also amends section 46(1) so that the class of actions declaration in the bilateral agreement does not need to refer to the identity of the decision maker in an accredited management arrangement or authorisation process. Currently, subsection 46(1) of the EPBC Act requires a bilateral agreement to declare a class of actions wholly or partly by reference to the fact their taking has been approved by the State or Territory or an agency of the State or Territory. A declaration under subsection 46(1) can therefore only be made in respect of a bilaterally accredited arrangement or process where the State or Territory, or an agency of the State or Territory, has approved the action being taken.

5.5          An agency of a State or Territory is defined in section 528 of the EPBC Act to include a Minister or a body corporate established for a public purpose by a law of the State or Territory and a body corporate established by certain executive actions. Often the question of whether a decision maker is the State or Territory or agency of the State or Territory for the purposes of subsection 46(1) is a technical legal question. For example, whether local councils fall within the definition depends on the legal status of local councils, which differs between States and Territories. Decisions made by expert bodies may also be excluded under the current provisions. This restriction could therefore 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.

5.6          This means that currently 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 bilateral agreement cannot include decisions made by that entity.

5.7          The amended section 46(1) will ensure that the focus of the bilateral agreement and the accreditation process is on whether the arrangement or process meets the relevant standards for accreditation. If an arrangement or process meets the applicable statutory considerations and standards for accreditation, the bilateral agreement can include approvals granted under the accredited management arrangement or authorisation process regardless of the identity of the decision maker granting the approval. The management arrangement or authorisation process must still be made under or set out in a State or Territory law (as per the amendments in Schedule 3).

5.8          Item 1 also inserts a note clarifying the current operation of section 46(1), to ensure certainty about the operation of this provision. The note will clarify that an action may be approved in accordance with the accredited management arrangement or authorisation process prior to the accreditation of the process for the purposes of an approvals bilateral agreement.

5.9          An action falls into a class of actions because it has been approved in accordance with a particular arrangement or process. As long as that approval is granted in accordance with an arrangement or process as accredited by the Minister - meaning that the Minister was therefore satisfied that the particular process met the criteria in subsection 46(3) - subsection 46(1) does not restrict the class of actions declaration to approvals granted after the accreditation occurs.

 

Items 2 - 6 - Subsection 46(3), Paragraph 46(3)(a), Paragraph 46(3)(b), Paragraph 46(3)(c) and After paragraph 46(3)(c)

5.10        Items 2 - 6 amend subsection 46(3) to clarify that the Minister can take into account all matters that the Minister considers relevant when deciding whether to accredit a management arrangement or authorisation process.

5.11        Under the current subsection 46(3) the Minister must be satisfied that:

(a)        the management arrangement or authorisation process meets any criteria in the regulations;

(b)        there has been or will be an adequate assessment of impacts on relevant matters protected under Part 3 of the EPBC Act; and

(c)        actions approved in accordance with the management arrangement or authorisation process will not have unacceptable or unsustainable impacts on relevant matters protected under Part 3 of the EPBC Act.

5.12        The amended section 46(3) will still require the Minister to be satisfied of the above matters. However, the amendments will clarify that the Minister may also consider other relevant matters when making the accreditation decision, and in satisfying himself or herself that the requirements of section 46(3) are met. In addition to the terms of the management arrangement or accreditation process, there may be other relevant information about how the process operates in practice. This information is likely to be relevant to the Minister’s consideration of whether the process would in fact satisfy the criteria in section 46(3).

5.13        For example, the State or Territory may commit to processes or environmental protection requirements in the 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.

5.14        Existing Note 1 to subsection 45(1) makes it clear that a bilateral agreement can detail Commonwealth accreditation of State or Territory practices, procedures, process, systems, management plans and other approaches to environmental protection. Where the bilateral agreement details these matters, they are also likely to be relevant to the Minister’s accreditation of a management arrangement or authorisation process for the purposes of the agreement. The amendment will further clarify that the Minister can take all such matters into account.

5.15        Section 45(3) requires the Minister to publish a statement of the Minister’s reasons for entering into the bilateral agreement at the time the Minister publishes the finalised agreement. The statement of reasons will document all matters which the Minister considered when deciding to accredit a management arrangement or an authorisation process for the purposes of the bilateral agreement, including any matters considered under subsection 46(3).

 

 

Items 7 and 8 - Subsection 46(3) (note) and At the end of subsection 46(3)

5.16        Items 7 and 8 insert a new Note 2 at the end of subsection 46(3) to provide an example of the matters that the Minister might consider relevant under new paragraph 46(3)(d). In addition to the terms of the relevant bilateral agreement, the Note clarifies that these matters may include, for example, State policies and plans.

Item 9 - After section 48

5.17        Item 9 will ensure that the operation of the 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.

5.18        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 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. This information may be captured in policies, plans and other formats such as information databases.

5.19        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.

5.20        It is anticipated that following entering into a bilateral agreement, the Commonwealth would work consultatively and cooperatively with States and Territories on processes to update policies or other documents that are relevant to the agreement. 

5.21        Item 9 inserts section 48AA into Part 5 of the EPBC Act. Section 48AA will provide that despite the operation of section 46AA of the Acts Interpretation Act 1901 (Cth) (the  AI Act ), a bilateral agreement may apply, adopt or incorporate instruments or other writings. This will include instruments and other documents made after a bilateral agreement is signed.

Item 10 - Application

5.22        Sub-item 10(1) will ensure that the amendments made by item 1 will apply to actions approved in accordance with a bilaterally accredited management arrangement or authorisation process, for the purposes of a bilateral agreement, on or after the day the amendments commence. This will be the case regardless of when the bilateral agreement was entered into. 

 

 

 

5.23        Sub-item 10(2) will ensure that the note added by item 1 applies to any action approved in accordance with an accredited arrangement or process, even actions approved before the commencement of the provision. This application provision is appropriate because the note merely clarifies the operation of the provision, and ensures that the clarification can be taken into account regardless of when the action was approved. The note will only apply to arrangements or processes accredited on or after the day the item commences.

5.24        Sub-item 10(3) will ensure that the amendments made by items 2 to 8 will apply to any accreditation decision made after the item commences, regardless of when the bilateral agreement was entered into.

5.25        Sub-item 10(4) will ensure that the amendments made by item 9 will apply in relation to bilateral agreements entered into before, on or after the amendments commence.