CTH Bill to Streamline Environmental Approvals Passes House of Representatives

Thursday 3 September 2020 @ 9.13 a.m. | Judiciary, Legal Profession & Procedure | Legal Research

The Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 [CTH] (the Bill) was introduced into the Commonwealth Parliament on 27 August 2020 by Ms Ley, the Minister for the Environment (the Minister). The Bill makes amendments to the existing provisions of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) to support the "efficient, effective and enduring operation of bilateral agreements" and avoid regulatory duplication by creating a single environmental assessment and approval process for nationally protected matters.

Bill Outline

According to the explanatory memorandum, the Bill is intended to facilitate the "legally robust devolution" of environmental approvals to the States and Territories.

The EPBC Act already allows for the devolution of environmental assessments and approvals through bilateral agreements with the States and Territories. Such bilateral agreements are said to 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 EPBC Act are:

  •  Assessment bilateral agreements – these are agreements where 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 – these are agreements where a State or Territory is accredited to assess and approve or refuse to approve project proposals.

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

Key Areas of Change

A new section 66A will be inserted by the Bill to prevent a referral of actions within the scope of an approval bilateral agreement. The new section will prevent referral of an action under Part 7 of the EPBC Act (which deals with deciding whether approval of actions is needed), where an approval bilateral agreement is in place for that class of actions. This referral will be prevented even where the State or Territory government has not yet assessed the action. Where a bilateral agreement is suspended or cancelled part way through an assessment, the proposed section 66A will allow the Commonwealth to take account of the assessment that has been completed by the State or Territory in its own assessment and approval process under the EPBC Act.

The Bill's explanatory memorandum indicates that it is intended that bilateral approval agreements will include a provision allowing an action to be excluded from the approved class of actions where, as an example, there will be no adequate environmental protection achieved. In such a situation the new section 69A added by the Bill would authorise the Commonwealth Minister to "call in" an action that has been excluded by declaration. Where the power is exercised it will have the effect of a referral. Where a declaration is made part way through the State or Territory assessment process the assessment that has been undertaken will still be taken into account by the Commonwealth.

The current approval bilateral agreements cannot permit actions to be approved by States or a Territory falling under what is referred to as the "water trigger" - the Bill removes the prohibition.

A difficulty with existing assessment bilateral agreements has been that minor changes to State or Territory processes have often impacted upon the operation of agreements. The Bill makes several amendments to enabling greater flexibility around processes without impacting the continuation of bilateral agreements. The Bill proposes changes enabling States and Territories to:

  • make minor amendments to assessment and approval processes without the need for a new bilateral agreement as long as there is no material adverse impact on a protected matter;
  • appoint non-government bodies, for example, technical experts, to approve actions under an accredited arrangement;
  • accredit their processes even where not set out in a ‘law’, as is currently required, acknowledging the function of subordinate legislation or non-legislative documents (such as procedures or guidelines) in environment impact assessment; and
  • more readily amend policy instruments without the need for a formal amendment.

Interim Report Independent Review Into EPBC Act

The Bill was introduced a month after the Interim Report of the Independent Review into the EPBC Act was made public. The Bill focuses on one main recommendation of the Report - devolution of approvals to the States and Territories. The review, which is required by law every 10 years, was chaired by former Australian Competition and Consumer Commission chairman Graeme Samuel, and found the EPBC Act was "ineffective and inefficient" because it created significant extra costs for business. The final report of the review is due in October 2020.

In his interim report Mr Samuel called for reforms including a system where major project assessments are handed to State and Territory governments, arguably removing unnecessary bureaucracy. This was to be supported by two new major environmental protections.

Firstly, Mr Samuel proposed a "draft set of national standards" setting common rules about development impacts on threatened species, habitat and biodiversity; and secondly he called for an independent regulator to be a "tough cop" making sure State and Territory governments adhere to the standards.

The proposal for a "tough cop" has not been taken up by the Minister, and the national standards, while supported by the Minister, do not form part of the Bill which deals primarily with major project assessments being handed to State and Territory governments.

Comment and Reaction

Mike Foley writing for the Sydney Morning Herald reported that "Labor, the Greens and environmental groups urged the government to develop national standards as a priority", with the Greens environment spokesperson Sarah Hanson-Young saying the government had "ignored the fact a once in 10-year review is still under way [and] . . . . should've been completed before any legislation was introduced, let alone laws that wind back protections".

The Wilderness Society's law specialist Suzanne Milthorpe is reported as saying:

"It's hard to see how the government introducing a Bill, much of which is word-for-word identical to Tony Abbott's failed 2014 one-stop-shop amendments, isn't a deliberate breaking of faith with the near 30,000 Australians who fed into the independent review of the EPBC Act, . . .".

At this stage the Bill has been passed in the House of Representatives and is to be debated in the Senate. The Sydney Morning Herald reports:

"Labor, the Greens and several crossbench MPs and Senators have voiced objection to the bill, but the government is expected to have the numbers for it to pass."

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