Jurisdiction - Australia
Australia – Spotlight On The EPBC Act.

17 February, 2014


Legal News & Analysis – Asia Pacific – Australia – Environment 


What Has Happened?


Late-2013 saw plenty of activity around environmental assessment under theEnvironment Protection and Biodiversity Act 1999 (Cth) (EPBC Act).


On 16 October 2013, the Minister for the Environment announced a three-step framework for the implementation of the Federal Government’s ‘one-stop-shop’ policy. The policy is designed to remove the need for separate environmental assessment and approval at the Commonwealth level through the execution of ‘bilateral agreements’, allowing the States to conduct a single approvals process.


Meanwhile, on 20 December 2013, the Department of the Environment released new Significant Impact Guidelines, relating to the recently introduced ‘water trigger’ amendments.


Who Needs To Know?


Proponents of developments requiring both State and Commonwealth environmental assessment and approval in Australia.


In particular, the new Guidelines will be relevant for proponents of Coal Seam Gas (CSG) developments or large coal mining developments.


Bilateral Agreements – Which States Are Closest To Achieving The ‘One-Stop-Shop’ policy?


The Commonwealth Government and the respective State Governments are moving towards the full implementation of the ‘one-stop-shop’ policy.


Since the release of the framework, the Commonwealth Government has executed a Memorandum of Understanding (MoU) with each State and Territory, and progress is being made towards the negotiation, exhibition and signing of assessment bilateral agreements and approval bilateral agreements in each jurisdiction. A brief update on the status of each of Queensland, New South Wales, Victoria and Western Australia is set out below.


1. Queensland


In moving towards the ‘one-stop-shop’ framework, the State of Queensland and the Commonwealth entered into a MoU on 18 October 2013, and have revised the existing assessment bilateral agreement, which was executed on 13 December 2013.


The revised assessment bilateral seeks to provide greater up-front guidance to industry. It alters the established consultation process and also broadens the actions falling within the scope of the agreement to include nuclear actions and actions within the Great Barrier Reef Marine Park.


The Queensland Government anticipates implementing an approval bilateral agreement prior to 18 September 2014.


2. New South Wales


The NSW government was the second jurisdiction to confirm its intention to implement the single assessment and approval framework, signing a MoU with the Commonwealth Government on 5 November 2013.


On 20 December 2013, the two Governments re-established an assessment bilateral agreement, which had previously lapsed in 2012. The assessment bilateral agreement specifies the types of information that must be contained in a NSW Assessment Report in order for the Commonwealth to be able to rely on the assessment, as well as specific provisions around public access to documents and the role of Indigenous peoples in the assessment process.


At present, the two Governments are working towards developing an approvals bilateral agreement, the target date for entry is April 2014.


3. Victoria


Negotiations between the Commonwealth and Victorian Government on bilateral agreements are ongoing.


On 12 December 2013, the Victorian and Commonwealth Governments signed a MoU to document their cooperation towards developing a revised assessment bilateral agreement by mid-2014 and the approvals bilateral agreement by the end-2014. Notably, these projected timeframes are dependent upon the introduction of reforms to Victoria’s Environment Effects Statement process foreshadowed for later in 2014.


Until the bilateral agreements can be agreed, both Governments have committed to a number of interim actions which are designed to reduce green tape, including the development of joint protocols designed to minimise the need for Commonwealth conditions to apply over and above those imposed under Victorian approvals and the use of a single assessment report where Victoria has undertaken a comprehensive environmental assessment.


4. Western Australia


At the Council of Australian Governments meeting on 13 December 2013 the Western Australian Government followed Victoria, NSW and Queensland in signing a MoU to implement an approval bilateral agreement.


The MoU sets out both Governments’ commitment to the process, timeframes and key principles. Interestingly, the WA MoU includes a commitment by the parties to work towards the State being accredited to undertake strategic assessments, and a priority list for existing and potential strategic assessments is to be developed by June.


WA currently has an assessment bilateral agreement in place, and is in negotiations with the Commonwealth regarding the form of necessary amendments to satisfy the Commonwealth that matters protected under the EPBC Act will be properly assessed by the State.  

Water Trigger – What Actions Will Have A ‘Significant Impact’?


Meanwhile, the newly released Significant Impact Guidelines 1.3: Coal seam gas and large coal mining developments – impacts on water resources(Guidelines) have shed some light on what actions will be considered to have a ‘significant impact’ on a water resource under the EPBC Act.


Under amendments to the EPBC Act made last year, water resources became a ‘matter of national environmental significance’ in relation to CSG developments and large coal mining developments. This is known as the ‘water trigger’. In a nutshell, if an extractive CSG or coal mining activity has, or is likely to have, a significant impact on a water resource, the proponent of the development is required to refer the action for environmental assessment and approval at the Commonwealth level.


What actions do the Guidelines say will have a ‘significant impact’? In order to decide whether an impact is significant, the Guidelines state that a proponent must first consider the value of the water resource. The value of a water resource depends on its utility for all third party users, and these include environmental and other ‘public benefit outcomes’. ‘Public benefit outcomes’ is expressed in broad terms, ranging from tourism to drinking water to ecosystem function.


The Guidelines say that, if there is well-founded evidence that the development will adversely impact:


  1. the hydrology of a water resource, or
  2. the water quality of the water resource,


to the extent that the current or future utility of the water resource for third party users, including environmental and other public benefit outcomes, is significantly reduced, then the action is more likely to have a ‘significant impact’.


The Guidelines say that the impacts of an action must be considered in the context of the impacts of other past, existing or reasonably foreseeable developments (‘cumulative impacts’). The impact on surrounding hydrological systems must be assessed, and furthermore, proponents must look at both the short and the long term impacts. This may require a consideration of the effects of an action beyond the life of the proposed development itself.


Online Resources


Information about the ‘One-Stop-Shop’ policy and the progress of each State and Territory is available on the Department’s website on Bilateral Agreements.


Information about the water trigger and what will constitute a ‘significant impact’ is available on the Department’s website on the Guidelines.


herbert smith Freehills


For further information, please contact:


Peter Briggs, Partner, Herbert Smith Freehills

[email protected]


William Oxby, Partner, Herbert Smith Freehills

[email protected]


Tony van Merwyk, Partner, Herbert Smith Freehills

[email protected]


Tim Power, Partner, Herbert Smith Freehills

[email protected]

Herbert Smith Freehills Environment Practice Profile in Australia 

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