Title Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020
Database Explanatory Memoranda
Date 20-01-2021 11:47 AM
Source House of Reps
System Id legislation/ems/r6582_ems_236ebde9-a654-43c5-86a7-5417954b4372


Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020

2019-2020

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (STREAMLINING ENVIRONMENTAL APPROVALS) BILL 2020

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of the Minister for the Environment, the Hon. Sussan Ley MP)

 


ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (STREAMLINING ENVIRONMENTAL APPROVALS) BILL 2020

GENERAL OUTLINE

The Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (the Bill) facilitates the legally robust devolution of environmental approvals to the States and Territories.

The Act already provides for devolution of environmental assessments and approvals through bilateral agreements with the States and Territories. Bilateral agreements avoid regulatory duplication by creating a single environmental assessment and approval process for nationally protected matters. The two types of bilateral agreements provided for under the Act are:

·         Assessment bilateral agreements – a State or Territory is accredited to assess the environmental impacts of project proposals on behalf of the Commonwealth, which is then used by the Commonwealth to decide whether or not to approve a project.

·         Approval bilateral agreements – a State or Territory is accredited to assess and approve or refuse to approve project proposals.

The Bill will make technical amendments to the existing provisions of the Act relating to bilateral agreements to support the efficient, effective and enduring operation of bilateral agreements.

FINANCIAL IMPACT STATEMENT

The Bill amends the Act to facilitate the legally robust devolution of environmental approvals to the States and Territories. 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.

REGULATION IMPACT STATEMENT

A Regulation Impact Statement was required for the amendments. The Interim Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 undertook a process and analysis equivalent to a Regulation Impact Statement. The Interim Report can be found at www.epbcactreview.environment.gov.au.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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.

The full statement of compatibility with human rights is attached to this Explanatory Memorandum.


ACRONYMS, ABBREVIATIONS AND COMMONLY USED TERMS

The following abbreviations and terms are used in this Explanatory Memorandum:

 

 

Act

Environment Protection and Biodiversity Conservation Act 1999

approval bilateral agreement

means a bilateral agreement that includes a declaration described in subsection 46(1) of the Act

assessment bilateral agreement

means a bilateral agreement that includes a declaration described in subsection 47(1) of the Act

Bill

Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020

IESC

Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development

Legislation Act

Legislation Act 2003

Minister

Minister for the Environment

Regulations

Environment Protection and Biodiversity Conservation Regulations 2000


NOTES ON AMENDMENTS

Preliminary

Clause 1 – Short Title

Clause1 provides for the short title of the Act to be the Environment Protectionand Biodiversity ConservationAmendment (Streamlining Environmental Approvals) Act 2020.

Clause 2 – Commencement

Clause 2 provides for the commencement of each provision in the Act, as set out in the table.

Item 1 in the table provides that sections 1 to 3, and anything in the Act not covered elsewhere in the table will commence on the day after the Act receives the Royal Assent. Item 2 in the table provides that Schedules 1 to 4 will commence on the day after the Act receives the Royal Assent. Item 3 in the table provides that Items 1 and 2 of Schedule 5 will commence on the day after the Act receives the Royal Assent. Item 4 in the table provides that Item 3 of Schedule 5 will commence immediately after the commencement of Item 11 of Schedule 3. Item 5 of the table provides that Items 4 to 10 of Schedule 5 will commence on the day after the Act receives the Royal Assent.

Subclause 2(2) provides that any information in column 3 of the table is not part of the Act. It also clarifies that information may be inserted into column 3 of the table, or information in it may be edited, in any published version of the Act.

Clause 3 – Schedule

Clause3 provides that legislation that is specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule has effect according to its terms. This is a technical provision to give operational effect to the amendments contained in the Schedules.

SCHEDULE 1 – REFERRAL OF CONTROLLED ACTIONS

Environment Protection and Biodiversity Conservation Act 1999

Background to the amendments

If an action may have, or is likely to have, a significant impact on a matter protected by a provision of Part 3, the action must be referred to the Minister under Part 7 of the Act for a decision on whether the action is a controlled action.

If the Minister decides that an action is a controlled action, the impacts of the action on a matter protected by a provision of Part 3 must be assessed under Part 8 and the action approved under Part 9 before the action can be taken.

The requirement for a person to obtain an approval does not apply however if Part 4 lets the person take the action without an approval under Part 9 (see for example, paragraph 16(2)(b)). Under section 29 (in Part 4), an approval is not required under Part 9 if the action is in a class of actions declared by a bilateral agreement between the Commonwealth and a State or Territory to not require approval under Part 9, and the action is approved and taken in accordance with a bilaterally accredited management arrangement or bilaterally accredited authorisation process. 

The Act is intended to operate so that, where an approval bilateral agreement declares that an action in a class of actions does not require approval, the action does not also require assessment and approval under the Act. Section 66 of the Act states that Chapter 4 does not deal with actions that a bilateral agreement declares not to need approval. However, despite section 66, there is currently nothing in the Act to prevent a person from referring an action to the Minister under Part 7 that is otherwise covered by the scope of an approval bilateral agreement. The purpose of the amendments in Schedule 2 is to reduce duplication by clarifying the intended operation of the Act, as stated in section 66.

Detail of the amendments

Item 2 inserts new Division 1 and new section 66A into Part 7 of the Act.

New subsection 66A(1) will operate to prevent a person from referring an action under Part 7 of the Act in circumstances where the action has been approved in accordance with a management arrangement or an authorisation process accredited for the purposes of an approval bilateral agreement. These actions would be subject to a declaration under the bilateral agreement that they are within a class of actions specified in the bilateral agreement that do not require approval under Part 9 of the Act if the action is taken in accordance with the bilaterally accredited management arrangement or bilaterally accredited authorisation process. In these circumstances, referral to the Minister for a decision on whether the action is a controlled action under Part 7 of the Act would be unnecessary.

New subsection 66A(2) will operate to prevent a person from referring an action under Part 7 of the Act in circumstances where the action is being, or is to be, assessed under a management arrangement or an authorisation process accredited for the purposes of an approval bilateral agreement, and a decision has not yet been made by the State or Territory whether to approve the action. This will exclude, for example, the referral under the Act of an action covered by an approval bilateral agreement even if the action has not yet been assessed by a State or Territory.

If an approval bilateral agreement has been suspended or cancelled (either generally or in relation to a specified class of actions) new subsection 66A(3) will enable actions that were previously being assessed in accordance with a bilaterally accredited management arrangement or a bilaterally accredited authorisation process to be referred to the Commonwealth under Part 7. In these circumstances, the amendments in Schedule 2 will enable the Minister to make use of a completed, or partially completed, State or Territory assessment to complete the assessment and approval process under the Act.

 

Where an action is to be taken in 2 or more States or self-governing Territories, new subsection 66A(4) clarifies that new section 66A 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 only one of the States. In this situation, new section 66A will not prevent the action from being referred under Part 7 in relation to the State where the action is not covered by an approval bilateral agreement.

Items 1, 3, 4, 5, 6, 7, 8, 9, 10 and 11 are required as a consequence of the insertion of new Division 1 and new section 66A.

Application provisions

Item 12(1) clarifies that the amendments made by Schedule 1 will apply to a referral of an action under section 68 of the Act, regardless of whether the referral was made before, on or after commencement. Despite this, Item 12(2) will enable the Minister to determine that the amendments made by Schedule 1 do not apply in relation to a referral of an action under section 68 made before commencement of the amendments. Item 12(3) clarifies that a determination made by Item 12(2) is not a legislative instrument for the purposes of the Legislation Act. This is merely declaratory of the law and is included to assist readers. A determination under Item 12(2) is not legislative in nature.

SCHEDULE 2 – FLEXIBILITY IN PERFORMING ASSESSMENT OF CONTROLLED ACTIONS

 

Environment Protection and Biodiversity Conservation Act 1999

Background to the amendments

To avoid duplication, and to reduce the regulatory burden on proponents, the purpose of the amendments in Schedule 2 is to ensure there is an efficient process to complete the assessment and approval of an action under the Act where a bilateral agreement with a State or Territory is suspended or cancelled, or an approval bilateral agreement otherwise ceases to apply to a particular action. 

An action that is no longer covered by an approval bilateral agreement will not require assessment under Part 8 of the Act if the action is in a class of actions declared in an assessment bilateral agreement not to require assessment under Part 8 of the Act (see section 83 of the Act). 

However, there may be actions that are not covered by the scope of an assessment bilateral agreement. This may be because there is no assessment bilateral agreement in operation in a particular State or Territory, the effect of an assessment bilateral agreement has been suspended or cancelled, or the action is not within a class of actions to which the assessment bilateral agreement relates.

If a State or Territory has completed, or partially completed, an assessment of the impacts of an action, the amendments in Schedule 2 will provide the Minister with the discretion to determine whether that State or Territory assessment can be completed or used under Part 8 for the purpose of deciding whether or not to approve an action under Part 9 of the Act. 

The Minister for the purposes of the amendments in Schedule 2 is the Minister administering Chapter 2 of the Act (see Item 16).


 

Detail of the amendments

Deemed referral for actions excluded from an approval bilateral agreement

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.

Item 3 inserts new sections 69A and 69B into the Act to facilitate this process. New section 69A will apply where the Minister, or an appropriate Minister of a State or Territory, makes a declaration under an approval bilateral agreement that a specified action is excluded from coming within the class of actions specified in the approval bilateral agreement (an exclusion declaration).

To reduce duplication and the burden on proponents, the person proposing to take an action that is the subject of an exclusion declaration will be taken to have referred the action under subsection 68(1) of the Act at the same time the exclusion declaration is made (new subsection 69A(2)). This will then enable the Minister to make a decision under Part 7 of the Act about whether the action is a controlled action or not. If the Minister decides that the action is a controlled action, Items 6 – 10 (see below) provide the Minister with the ability to make use of a completed or partially completed State or Territory assessment of the impacts of the action to finalise the assessment and approval processes under the Act.

If the Minister decides not to use a completed or partially completed State or Territory process, the Minister must decide on an assessment approach to assess the impacts of the action under section 87 of the Act.

New subsection 69A(3) ensures that new section 69A will apply to the action in this manner, unless paragraph 68A(3)(a) applies in relation to the action (section 68A clarifies that a contractor or other person who takes an action on behalf of a principal pursuant to a contract, agreement or other arrangement, is not required or permitted to make a referral under section 68).

New subsection 69A(4) and new section 69B modify the application of the existing provisions of Part 7 to an action that is taken to have been referred under new subsection 69A(2) as follows:

(a)    the requirement in subsection 68(3) for the person referring an action to state whether the person thinks that an action is a controlled action will not apply (new subsection 69A(4));

(b)   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 (new subsection 69A(4));

(c)    the requirement for the 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 (new paragraph 69B(a));

(d)   instead of the requirement for the Minister to publish the referral on the internet under paragraph 74(3)(a), the Minister will be required to publish the exclusion declaration (new paragraph 69B(b)); and

(e)    the Minister will have the discretion to invite comments on whether the action to which the exclusion declaration relates is a controlled action (new paragraph 69B(b)). Providing the Minister with this discretion will avoid duplicating processes that may have already been undertaken. For example, while the action was still within the class of actions specified in the approval bilateral agreement, a State or Territory may have already invited comments on whether the action has, will have or is likely to have a significant impact on a matter protected by a provision of Part 3 of the Act. Conversely, the impacts of the action may already be well understood based on the State or Territory assessment undertaken at the time the exclusion declaration is made.

For the avoidance of doubt, new section 69A does not apply where the effect of an approval bilateral agreement or an assessment bilateral agreement has been suspended or cancelled, or an action otherwise no longer comes within the class of actions covered by an approval bilateral agreement (for example, where the nature and scope of the action changes). If these scenarios apply to the action, the person proposing to take the action will need to consider whether to refer the action to the Minister under section 68.

Items 1, 2, 4 and 14 are required as a consequence of Item 3 above. 

Use of partially completed State or Territory assessment to complete an assessment of the impacts of an action under Part 8

If the Minister has decided that an action is a controlled action under Part 7, the Minister must then determine the assessment approach that is appropriate to assess the impacts of the action under section 87. 

Where a State or Territory has partially completed an assessment of the relevant impacts of an action, and the action is subsequently taken to have been referred under new subsection 69A(2) (inserted by Item 3), or the effect of an approval bilateral agreement or an assessment bilateral agreement is suspended or cancelled, new paragraph 87(3)(ca) (inserted by Item 6) requires the Minister to consider the extent to which the partially completed State or Territory assessment can be used, and the assessment completed, under an assessment approach set out in Part 8 of the Act.

If a State or Territory has partially completed an assessment of the relevant impacts of an action, and the Minister makes a decision to complete that assessment under an approach set out in Part 8, Item 9 inserts new subsection 87(7) into the Act which requires the Minister to make a determination on:

(a)    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  

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

As the steps in the State or Territory processes (described in the accredited management arrangement or accredited authorisation processes under an approval bilateral agreement or the specified manner of assessment in an assessment bilateral agreement) will differ, and may not align with the steps under the various assessment approaches under Part 8, the determination of the Minister under new subsection 87(7) 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 an assessment approach under Part 8 of the Act.

The existing considerations applicable to an assessment approach decision apply to a decision of the Minister to make a determination under new subsection 87(7). For example, subsection 87(3) specifies matters the Minister must consider in making an assessment approach decision and subsections 87(4), 87(4A) and 87(5) specify the matters the Minister must be satisfied of in deciding whether the impacts of an action are to be assessed under an accredited assessment approach, the assessment undertaken based on the referral information or preliminary documentation. 

Item 9 also inserts new subsection 87(8) which clarifies that a declaration made by the Minister under new subsection 87(7) is not a legislative instrument for the purposes of the Legislation Act. This is merely declaratory of the law and is included to assist readers. A determination under new subsection 87(7) is not legislative in nature.

Item 11, which is required as a consequence of Item 9, clarifies that if the Minister makes a determination under new subsection 87(7), the written and published notice of an assessment approach decision 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.

Item 5 amends section 85 (which sets out the simplified outline to Division 3 of Part 8) as a consequence of Item 9 to include a reference to a determination of the Minister under new subsection 87(7).

Declaring a State or Territory assessment as an assessment for the purposes of Part 8

Item 10 inserts new sections 87A and 87B into the Act.

In circumstances where a State or Territory has completed an assessment of the impacts of an action that is subsequently taken to have been referred under new subsection 69A(2) (inserted by Item 3), and the Minister has made a decision that the action is a controlled action, new subsection 87A(1) enables the Minister to determine that the assessment by the State or Territory is an assessment for the purposes of Part 8 of the Act. Following a determination under new subsection 87A(1), the Minister would then be able to make a decision under Part 9 on whether to approve the action.

For the avoidance of doubt, new subsection 87A(2) clarifies that the assessment of the relevant impacts of the action may be completed by the State or Territory before or after the exclusion declaration is made under new section 69A. This provides the State or Territory with the ability to complete the assessment following the exclusion declaration under new section 69A, but before the Minister makes the determination under new subsection 87A(1).

New subsection 87A(3) clarifies that a determination made by the Minister under new subsection 87A(1) is not a legislative instrument for the purposes of the Legislation Act. This is merely declaratory of the law and is included to assist readers. A determination under subsection new 87A(1) is not legislative in nature.

In circumstances where an approval bilateral agreement has been suspended or cancelled, and a State or Territory has undertaken an assessment of the impacts of an action but, at the time of the suspension or cancellation, the action had not been approved by the State or Territory, new subsection 87B(1) will enable the Minister to determine that the assessment of the impacts of the action by the State or Territory is an assessment for the purposes of Part 8 of the Act. This provision is necessary to avoid the need to undertake a new, duplicative assessment of the impacts of the action under the Act.

New subsection 87B(2) clarifies that a determination made by the Minister under new subsection 87B(1) is not a legislative instrument for the purposes of the Legislation Act. This is merely declaratory of the law and is included to assist readers. A determination under new subsection 87B(1) is not legislative in nature.

Items 5, 12 and 15 are required as consequence of Item 10. Item 5 amends section 85 (which sets out the simplified outline to Division 3 of Part 8) to include reference to the determinations of the Minister under new sections 87A and 87B. Item 12 amends section 130 to clarify the timeframe within which the Minister must decide whether to approve the taking of the action if the Minister has made a determination under new sections 87A or 87B. Item 15 amends paragraph 303FRA(3)(a) to include references to new sections 87A and 87B (section 303FRA specifies the assessment approach decisions under Part 8 of the Act for which regulations may be made in relation to Part 13A assessments).

Section 158A of the Act requires the Minister to disregard a listing event in making any approval process decisions (defined in subsection 158A(1)) after the controlled action decision has been made under section 75 of the Act. An approval process decision includes a decision under section 87 on the approach for the assessment of the impacts of the action (paragraph 158A(1)(d)). To ensure a decision of the Minister to make a determination under new section 87A or 87B  is treated in the same way as an assessment approach decision under section 87, Item 13 amends the definition of approval process decision in subsection 158A(1) to include a reference to a decision to make a determination under new section 87A or 87B that an assessment of the relevant impacts of an action by a State or Territory is an assessment for the purposes of Part 8. 


 

Assessment of impacts of actions by an accredited assessment process

Under paragraph 87(1)(a), it is open to the Minister to decide that the impacts of a controlled action are to be assessed by an accredited assessment process. An accredited assessment process enables the case-by-case accreditation of a State or Territory assessment process (in the event that a bilateral agreement is not in operation in a State or Territory, or an action is not covered by a bilateral agreement), or a Commonwealth assessment process.

Subsection 87(4) sets out the matters that the Minister must be satisfied of before deciding on an assessment by an accredited process.  However, subsection 87(4) only provides for the accreditation of a State, Territory or Commonwealth process where the assessment has not already commenced. Items 7 and 8 will amend subsection 87(4) to enable the Minister to decide that the impacts of a controlled action will be assessed by an accredited assessment process, even in circumstances where the assessment has been partially completed. 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.

Application provisions

Item 17 clarifies that the amendments to the Act made by Schedule 2 will apply in relation 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

 

Environment Protection and Biodiversity Conservation Act 1999

Part 1 – Amendments relating to water resources

Background to the amendments

Under sections 24D and 24E (the water trigger), an action involving a coal seam gas or large coal mining development will require assessment and approval under the Act if the action has, will have, or is likely to have a significant impact on a water resource.

The requirement to obtain an approval does not apply if Part 4 of the Act allows the action to be taken without an approval under Part 9 (see paragraphs 24D(4)(b) and 24E(4)(b)).

Section 29 of Part 4 allows a person to take an action that may otherwise require an approval under Part 9 of the Act if the action is covered by an approval bilateral agreement and the action is approved and taken in accordance with a bilaterally accredited management arrangement or bilaterally accredited authorisation process. However, subsection 29(1), together with subsections 46(1), 46(2) and 46(2A), prohibits an approval bilateral agreement from applying to the water trigger.  

The amendments in Part 1 of Schedule 3 remove duplication and promote streamlined, efficient environmental assessments and approvals by providing the ability for States and Territories to be accredited under the Act to approve actions for the purpose of the water trigger. This is consistent with all other matters of national environmental significance.

To strengthen environmental assurances relating to States and Territories approving actions covered by the water trigger, the amendments in Part 1 of Schedule 3 will also require 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 IESC.

Part 1 of Schedule 3 will also provide an additional function to the IESC to provide advice to the 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 advice provided by the IESC to the State or Territory.

Detail of the amendments

Items 1 and 2 amend subsections 29(1), 46(2) and 46(2A) (together with Item 1 of Schedule 5 which amends subsection 46(1)) to enable actions triggered for their impacts on a water resource to be declared under an approval bilateral agreement as actions that do not need approval under Part 9 of the Act for the purposes of sections 24D and 24E of the Act, because they are taken in accordance with a bilaterally accredited management arrangement or a bilaterally accredited authorisation process.

These amendments will allow for a State or Territory that is a party to an approval bilateral agreement to make approval decisions under a bilaterally accredited management arrangement or a bilaterally accredited authorisation process in relation to the water trigger.

Before making a decision under Part 9 on whether to approve the taking of an action for the purposes of the water trigger, section 131AB of the Act requires the Minister to obtain the advice of the IESC. The Minister must then take into account the advice of the IESC in making the approval decision (paragraph 136(2)(fa)). To ensure States and Territories are under a similar obligation, Item 5 inserts new subsection 48A(2A) into the Act to require an approval bilateral agreement that applies for the purposes of the water trigger to include an undertaking that the appropriate State or Territory Minister obtain and take account of any relevant advice from the IESC when deciding whether or not to approve an action likely to have a significant impact on a water resource.

Item 5 also inserts new subsection 48A(2B) into the Act 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.

Items 3 and 4 are required as a consequence of Item 5 and clarify that an approval bilateral agreement that applies for the purposes of the water trigger will not have any effect for the purposes of the EPBC Act if it does not include an undertaking of the type required by new subsection 48A(2A).

As a further assurance to the Commonwealth and the community of a State or Territory’s assessment of impacts to a water resource under a bilateral agreement, Item 6 amends subsection 505D(1) to provide the IESC with an additional function.

This amendment would allow the Minister to request supplementary advice from the IESC on high risk coal seam gas and large coal mining developments being considered under a bilateral agreement. This would be in addition to the advice provided by the IESC 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.

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.

Application provisions

Item 7(1) clarifies that the amendments made by Items 1 and 2 of Part 1 of Schedule 3 apply in relation to a referral of a proposal to take an action under section 68 made before, on or after the amendments commence.

Item 7(2) clarifies that the amendments made by Items 3, 4 and 5 of Part 1 of Schedule 3 apply to actions approved under an approval bilateral agreement on or after the day the amendments commence, regardless of when the agreement was entered into.

Part 2 – Amendments relating to bilaterally accredited authorisation process

Background to the amendments

Section 528 of the 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 relation to approval bilateral agreements, the requirement that the process be ‘set out in’ a law of a State or Territory limits the types of authorisation processes that the Minister may accredit (for example, authorisation processes may be set out in administrative instruments). 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.

The purpose of the amendments in Part 2 of Schedule 3 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. 

Detail of the amendments

Item 17 repeals the existing definition of authorisation process in section 528 of the Act and replaces it with a new definition. The new definition necessarily distinguishes Commonwealth accreditation processes and State and Territory accreditation processes. This is to ensure that any authorisation process of the Commonwealth will continue to be set out in a law of the Commonwealth (consistent with paragraphs 32(c)(ii) and 33(2A)(a) of the Act). 

Under the new definition, a State or Territory authorisation process can include processes that are:

(a)    set out, wholly or partly, in a law of a State or Territory; or

(b)   set out, wholly or partly, in an instrument made under a law of a state or Territory; or

(c)    made, wholly or partly, under a law of a State or Territory.

This will enable 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.

While these amendments have the effect of expanding the types of authorisation processes that can be accredited for the purposes of an approval bilateral agreement, subsection 46(3) requires the Minister to be satisfied of the following matters before accrediting an authorisation process for the purposes of a bilateral agreement:

(a)    the authorisation process meets the criteria prescribed by the regulations (paragraph 46(3)(a));

(b)   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 (paragraph 46(3)(b)); and

(c)    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 that relate to the agreement (paragraph 46(3)(c)).

The note to the new definition of authorisation process clarifies that the reference to ‘partly’ in paragraph (b) of the definition is to enable an authorisation process to consist of components which do not come within the elements of the definition. That is, one component of the process can be administrative (and not fall under a law, or an instrument made under a law). The definition does not include an authorisation process which is entirely made up of administrative components with no statutory basis.

Items 8, 9 and 10 are requiredas a consequence of Item 17 to reflect the new definition of authorisation process in subparagraphs 29(1)(d)(ii) and 31(f)(ii) and paragraph 46(2A)(a), respectively.

An authorisation process of a State or Territory may be contained in a number of different documents, all of which operate together to form the ‘process’. Items 11, 12, 13, 14, 15 and 16 amend paragraphs 46(3)(a), 46(4)(b), 46(5)(a) and 46(5A)(a) and subsections 46(6), 46(7) and 46(8) to ensure the Minister is able to accredit all components of a State or Territory authorisation process being considered for accreditation.

Application provisions

Item 18 makes clear that the amendments made by Part 2 of Schedule 3 apply in relation to an action assessed under a bilaterally accredited authorisation process on or after the day the amendments commence.

SCHEDULE 4 – MINOR AMENDMENTS OF BILATERAL AGREEMENTS

Environment Protection and Biodiversity Conservation Act 1999

Background to the amendments

Section 56A 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, the 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.

The amendments in Schedule 4 will allow for States and Territories to make minor changes to environmental assessment processes, particularly if this will result in better environmental outcomes, without the need for the amendment of a bilateral agreement or the re-accreditation of a management arrangement or authorisation process. These amendments will facilitate the continuous improvement of accredited management arrangements or authorisation processes and the manner in which the impacts of an action are assessed and allow those processes to respond to changes in circumstances. This will provide certainty about the ongoing operation of bilateral agreements.

Schedule 4 provides clear parameters around when changes may be made without the parliamentary and public consultation requirements of Part 5 of the Act. 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 Act. The amendments in this Schedule will mean that the Minister will need to be satisfied that the change would not reduce the assessment or protection outcomes provided for under the original accreditation decision. 

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

Detail of the amendments

Items 1 and 2 insert new sections 46A and 47A into the Act to facilitate minor amendments to:

(a)    a bilaterally accredited management arrangement or a bilaterally accredited  authorisation process under an approval bilateral agreement (new section 46A); or

(b)   the specified manner in which actions are assessed for the purposes of an assessment bilateral agreement (new section 47A).

Where a State or Territory amends a bilaterally accredited management arrangement or authorisation process, or the specified manner in which actions are assessed, new subsections 46A(2) and 47A(2) will enable the Minister to make a written determination that:

(a)    an amended management arrangement or authorisation process continues to be accredited under section 46 for the purposes of an approval bilateral agreement without the need for further accreditation (new subsection 46A(2)); or

(b)   the amended manner of assessing actions continues to be the specified manner of assessment for the purposes of an assessment bilateral agreement (new subsection 47A(2)).

Before the Minister can make a determination under new subsections 46A(2) or 47A(2), the Minister must be satisfied of the following matters:

(a)    that the amendment will not have, or is not likely to have:

(i)        for an approval bilateral agreement – a material adverse impact on a matter protected by a provision of Part 3 of the Act to which the agreement relates (new subparagraph 46A(2)(a)(i)); or

(ii)      for an assessment bilateral agreement – a material adverse impact on the assessment of the impacts actions have, will have, or are likely to have on a matter protected by Part 3 to which the agreement relates (new subparagraph 47A(2)(a)(i)); and

(b)   the amendment would not be likely to have a material adverse effect on a person’s ability to participate in the process (new paragraphs 46A(2)(a)(ii) and 47A(2)(a)(ii)); and

(c)    that the amended processes or arrangement continue to satisfy the relevant requirements for accreditation of a management arrangement or an authorisation process (new paragraph 46A(2)(b)) or the requirements for entering into an assessment bilateral agreement under subsection 47(2) are satisfied (new paragraph 46B(2)(b)).

The criteria in new paragraphs 46A(2)(a) and 47B(2)(a) ensure that there is no reduction in the protection for Part 3 matters as provided by the original arrangement, process or specified manner of assessment.

If the Minister wished to accredit a management arrangement or an authorisation process for the purposes of an approval bilateral agreement where she or he considered that the 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 ordinary 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.

New sections 46A and 47A will ensure the ongoing operation of bilateral agreements where a State or Territory makes minor changes to a bilaterally accredited management arrangement, a bilaterally accredited authorisation process, or a specified manner of assessment. Minor changes could include, for example:

(a)    minor changes to public consultation requirements, including increases and decreases to the time available for public consultation (as long as the changed requirements continue to satisfy the relevant criteria);

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

(i)        required information on potential impacts, where the changes would continue to satisfy the relevant criteria; 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)   administrative procedures made under a State law which may be made each calendar year.

New subsection 46A(5) and 47A(5) confirm the amendments made to an accredited management arrangement or an authorisation process, or the specified manner of assessment,  include both the repeal and remaking of an accredited management arrangement or authorisation process, or the repeal and remaking of a specified manner of assessment. This clarifies:

(a)    that the processes in new subsection 46A 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; and

(b)   that the processes in new subsection 47A 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.

The Minister must publish a determination made under new subsection 46A(2) or 47A(2) as soon as practicable after it is made (new subsections 46A(3) and 47A(3)).

New subsections 46A(4) and 47A(4) clarify that a determination made under new subsections 46A(2) or 47A(2) is not a legislative instrument for the purposes of the Legislation Act. This is merely declaratory of the law and is included to assist readers. A determination under new subsections 46A(2) or 47A(2) is not legislative in nature. 

Items 1 and 2 also insert new sections 46B and 47B which clarify that a determination under new sections 46A and 47A will apply to actions approved under the relevant management arrangement or authorisation process, or action assessed under the relevant process, before, on or after the day the declaration is made, regardless of when the bilateral agreement was entered into.

SCHEDULE 5 – MISCELLANEOUS

Environment Protection and Biodiversity Conservation Act 1999

Background to the amendments

Schedule 5 makes technical amendments to improve the application of the provisions in Part 5 to the making and operation of bilateral agreements.

Detail of the amendments

Allow approval bilateral agreements to apply in relation to the water trigger

Item 1 amends subsection 46(1) to allow an approval bilateral agreement to declare that actions involving coal seam gas or large coal mining developments that 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. This amendment complements the amendments made to subsection 29(1) and subsections 46(2) and (2A) (see Items 1 and 2 of Part 1 of Schedule 3).

Allow for a broader range of entities to approve actions under an accredited management arrangement or authorisation process

Currently, subsection 46(1) of the Act requires an approval 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. 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.

An agency of a State or Territory is defined in section 528 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.

Item 1 amends subsection 46(1) so that a class of actions declaration in an approval bilateral agreement does not need to refer to the identity of the decision maker in an accredited management arrangement or authorisation process. This amendment will ensure that the focus of the approval bilateral agreement and the management arrangement or accreditation process is instead on whether the arrangement or process satisfies the criteria for accreditation, not the identity of the decision maker.

Clarify the current operation of an approval bilateral agreement to projects approved prior to the accreditation of the State or Territory management arrangement or authorisation process

 

Item 1 also inserts a note clarifying that under the current operation of subsection 46(1), an action may be approved in accordance with an accredited management arrangement or an accredited authorisation process prior to the accreditation of the arrangement or process for the purposes of an approval bilateral agreement.

An action falls into a class of actions because it has been approved in accordance with a particular arrangement or process. As long as an 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 only after the accreditation occurs.

Allow the Minister to take into account all relevant matters when accrediting a management arrangement or an authorisation process for the purposes of an approval bilateral agreement

Subsection 46(3) currently requires that the Minister be satisfied of the following matters before accrediting a management arrangement or an authorisation process for the purposes of an approval bilateral agreement:

(a)    the arrangement or process, and the law under which it is in force or in which it is set out, 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 Act; and

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

Item 6 inserts new paragraph 46(3)(d) into the Act to enable the Minister to consider any matter the Minister considers relevant when deciding whether to accredit a management arrangement or authorisation process. 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, which is relevant to the Minister’s consideration of whether the process would in fact satisfy the criteria in subsection 46(3). 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.

Subsection 45(4) 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 that the Minister considered when deciding to accredit a management arrangement or an authorisation process for the purposes of an approval bilateral agreement, including any matters considered under new paragraph 46(3)(d).

Items 7 and 8 insert a 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.

Items 2, 3, 4 and 5 are required as a consequence of Item 6 and reflect updated drafting styles.

Ensure that bilateral agreements can make reference to the most current version of instruments and policy documents

Item 9 inserts new section 48AA into the Act to ensure that the operation of an approval bilateral agreement or an assessment 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.

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.

Application provisions

Item 10(1) ensures that the amendments to subsection 46(1) made by Item 1 will apply to actions approved in accordance with a bilaterally accredited management arrangement or a bilaterally accredited 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. 

Item 10(2) ensures that the note added to subsection 46(1) 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. The note will only apply to arrangements or processes accredited on or after the day the amendments commences.

Item 10(3) ensures that the amendments to subsection 46(3) made by Items 2 to 8 apply to any accreditation decision made on or after the day the amendments commence, regardless of when the bilateral agreement was entered into.

Item 10(4) will ensure that new section 48AA, inserted by Item 9, applies in relation to bilateral agreements entered into before, on or after the amendments commence.

 


 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020

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.

Overview of the Bill

The Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (the Bill) amends the Environment Protection and Biodiversity Conservation Act 1999 (the Act) to facilitate the legally robust devolution of environmental approvals to the States and Territories. 

The Bill supports the efficient, effective and enduring operation of bilateral agreements entered into by the Commonwealth and State and Territory governments under the Act.

Human rights implications

The Bill does not engage any of the applicable rights or freedoms.

The Act already provides for devolution of environmental assessment and approvals through bilateral agreements with the States and Territories. Bilateral agreements avoid regulatory duplication by creating a single environmental assessment and approval process for nationally protected matters.

The Bill makes technical amendments to existing provisions of the Act to ensure bilateral agreements will operate effectively and efficiently and to provide certainty to proponents.

The Bill also removes the current restriction in the Act which prevents approval bilateral agreements applying to actions for the purposes of section 24D or 24E of the Act. Currently the Minister cannot accredit management arrangement or authorisation process for the purposes of an approval bilateral agreement to allow the States and Territories to approve actions involving large coal mining or coal seam gas developments that 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 involving a coal seam gas or large coal mining development that has, may have, or is likely to have, a significant impact on water resources. 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 requirements of the 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 Act.

While these amendments relate to the offence provisions in sections 24D and 24E of the Act, the Bill does not affect the operation of these offence provisions in any way. The amendments also do not alter the rights to appeal or review under the Act or an accredited state process.

Conclusion

The measures in the Bill are 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, as the Bill does not engage any human rights issues.

 

(Circulated by authority of the Minister for the Environment, the Hon. Sussan Ley MP)