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Australia – “One Stop Shop” In Sight.

4 June, 2014

 

Legal News & Analysis – Asia Pacific – Australia – Environment 

 

Amendments to establish the EPBC “One Stop Shop” introduced to Federal Parliament and Draft Approval Bilateral Agreements now open for comment.

 

What You Need To Know

 

  • The Federal Environment Minister has introduced legislation to amend the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to facilitate the Federal Government’s proposed “One Stop Shop” for EPBC Act approvals. 
  • Draft approval bilateral agreements for Queensland and New South Wales are open for comment until 5pm 13 June 2014
  • Consequential amendments to Queensland environmental laws have already been passed, with more on the horizon. 
  • A number of further steps are necessary before an approval bilateral takes effect in Queensland or New South Wales. 
  • The amendments proposed to the EPBC Act will allow States and Territories to approve large coal mining and coal seam gas developments that are likely to have a significant impact on water resources. This could be a sticking point for the draft approval bilaterals, as there is likely to be some opposition in the Senate to this proposal. 
  • The Federal Government has also released the Standards for Accreditation of Environmental Approvals under the Environment Protection and Biodiversity Conservation Act 1999 (Accreditation Standards), which set out the standards for accreditation of State and Territory regimes to implement the One Stop Shop. 

 
The Federal Government has committed to delivering a so-called “One Stop Shop” for approvals that can accredit State and Territory systems under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), to create a single environmental assessment and approval process. The One Stop Shop aims to streamline the approvals process for businesses, while maintaining high environmental standards, through the introduction of Approval Bilateral Agreements (approval bilaterals).

 
In late March the Federal Government released the Standards for Accreditation of Environmental Approvals under the Environment Protection and Biodiversity Conservation Act 1999 (Accreditation Standards), which set out the standards for accreditation of the State and Territory regimes to undertake environmental approvals for the purpose of the EPBC Act.

 
Queensland and New South Wales are now edging even closer to the One Stop Shop for Federal approval of projects. Federal Environment Minister Greg Hunt has now:

 

  • introduced legislation to amend the EPBC Act to facilitate the One Stop Shop; and 
  • published draft approval bilaterals to relinquish Federal EPBC Act approval and enforcement powers for projects in Queensland and New South Wales.

 
The draft approval bilaterals give effect to the Accreditation Standards, as well as elements of the Federal Government’s Assurance Framework, which has been established to provide appropriate checks and balances to ensure a robust and legally durable reform.

 
EPBC Amendment (Bilateral Agreement Implementation) Bill 2014 (Cth)

 
The EPBC Amendment (Bilateral Agreement Implementation) Bill 2014 (Bill) was introduced into Parliament on 14 May 2014 and seeks to amend the EPBC Act to “facilitate the efficient and enduring implementation of the Australian Government’s one stop shop policy for environmental approvals”.

 
The EPBC Act already contains a framework for the establishment of approval bilaterals, but the Bill makes technical amendments to ensure approval bilaterals will operate effectively and to provide certainty to proponents. For example, the proposed amendments:

 

  • make it clear that where an action is, or could be, covered by an approval bilateral, it will be assessed and approved by the relevant State or Territory and the proponent will not be required to refer the action to the Federal Minister. 
  • ensure that actions being carried out across multiple States or Territories can be referred to the Federal Minister (if there is no approval bilateral in one of those States or Territories); 
  • provide some flexibility to allow projects to “transition” from an accredited State or Territory process back into the EPBC Act and to be approved by the Federal Minister if need be, for example if: 
    • the Federal Minister, or the Court, decides that a project is not covered by an approval bilateral; 
    • the scope of a project changes so that it is no longer covered by an approval bilateral; or 
    • a bilateral approval is suspended or cancelled.
  • allow States and Territories to be accredited for approval decisions on large coal mining (LCM) and coal seam gas (CSG) developments that are likely to have a significant impact on a water resource. Currently, section 46 of the EPBC Act prevents this (a prohibition secured by former Independent MP Tony Windsor) and necessitates the continued involvement of the Federal Government in the approval of those CSG and LCM developments. 
  • enable all States and Territories to seek the advice of the Independent Expert Scientific Committee on CSG and LCM Development. 
  • ensure that appropriate types of authorisation processes can be accredited under approval bilaterals, including those: 
    • set out in or made under a State or Territory law; or 
    • set out in an instrument made under a State or Territory law. (with the effect that procedures or guidelines can be accredited provided they are made or issued under a State or Territory law). 
  • enable States and Territories to make minor amendments to an authorisation process, without the need to amend the approval bilateral or re-accredit the authorisation process. 
  • allow for a broader range of entities to approve actions under an accredited management arrangement or authorisation process.

 
The Bill has been referred to the Senate Environment and Communications Legislation Committee for inquiry and report, with a report due on 23 June 2014.

 
Draft Approval Bilaterals

 
The Draft Approval Bilaterals identify the State authorisation processes and declare the actions and class of actions that do not require approval.

Queensland Draft Approval Bilateral

 

The Queensland Draft Approval Bilateral:


  • identifies the EIS process under the Environmental Protection Act 1994 (Qld) (EP Act) and the process under the State Development and Public Works Organisation Act 1971 (Qld) (SDPWO Act) as the processes to be accredited; and 
  • declares resource activities (mining, oil and gas, geothermal and greenhouse gas storage) assessed through an EIS and coordinated projects as the classes of actions that do not need approval.

 

New South Wales Draft Approval Bilateral

 
The New South Wales Draft Approval Bilateral:

 

  • identifies the processes under part 4, part 5.1 and (transitional) part 3A of the Environmental Planning and Assessment Act 1979 (NSW) as the processes to be accredited; and 
  • declares development carried out under a part 4 development consent, State significant infrastructure and transitional Part 3A projects as the classes of actions that do not need approval (among others).

 
Both draft approval bilaterals are open for comment until 5pm Friday 13 June 2014.

 
Consequential Amendments To Queensland And New South Wales Environmental Laws

 
Amendments to the authorisation processes proposed to be accredited under the Queensland and New South Wales Draft Approval Bilaterals will be required, in order for those processes to meet the Accreditation Standards and to ensure the statutory requirements imposed on the Federal Minister under the EPBC Act are satisfied.

 
In Queensland, amendments have already been made to the Environmental Protection Regulation 2008 (Qld) which expressly require the Department of Environment and Heritage Protection to consider matters of national environmental significance (MNESwhen making a decision about an environmental authority where the Queensland approval bilateral applies.

 
Amendments to the SDPWO Act are also proposed under the Sustainable Planning (Infrastructure Charges) and Other Legislation Amendment Bill 2014 (Qld)) (introduced and referred to Parliamentary Committee on 8 May 2014) which:

 

  • insert a new Part 4A in the SDPWO Act for projects that are to proceed through the Queensland approval bilateral; 
  • implement the EPBC decision making criteria; and
  • provide a conditioning power for impacts on MNES.

 
What Next?

 
A number of further steps are necessary before an approval bilateral takes effect in Queensland or New South Wales. For example:

 

  • amendments to the State authorisation processes necessary for those processes to meet the Accreditation Standards will need to pass through the respective Queensland and New South Wales parliaments; 
  • the State authorisation processes themselves will need to be laid before both Houses of Federal Parliament (where they may be passed or disallowed); 
  • the State authorisation processes will need to be accredited by the Federal Minister; 
  • the respective approval bilaterals will need to be finalised and signed by the relevant parties; and 
  • the proposed amendments to the EPBC Act will need to pass through the Senate to implement the approval bilaterals as currently drafted.

 
Passage of the bilateral approvals through the Senate could well be the sticking point for the One Stop Shop, as there is likely to be some opposition to the current proposal. In particular there is likely to be opposition to the proposal to allow State governments to approve CSG and LCM developments with significant impacts on water resources, which has historically been a source of much political debate and division.

 

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For further information, please contact:

 

John Briggs, Partner, Ashurst
john.briggs@ashurst.com

 

Melissa Bice, Ashurst
melissa.bice@ashurst.com

 

Ashurst Environment Practice Profile in Australia 

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