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In July 2020, Professor Graeme Samuel AC released his Interim Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The EPBC Act, which is the centrepiece of Australia’s federal environmental law, is required to be reviewed at least once every 10 years. This latest review commenced on 19 October 2019 and examines the operation of the EPBC Act and the extent to which its objectives have been achieved.
As we observed in our previous article, Professor Samuel’s views were bold and unequivocal – in its current form, the EPBC Act is neither ensuring effective environment protection and biodiversity conservation, nor efficient regulation of business. The national outlook is one of decline and increasing threat to the quality of the environment. At best, the operation of the EPBC Act has contributed to slow the overall rate of decline.
On 27 August 2020, the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (Cth) (EPBC Amendment Bill) was introduced and read a first time in the Commonwealth House of Representatives. This Bill, aptly dubbed as the ‘first tranche’ of EPBC Act reforms, seeks to respond in part to Professor Samuel’s observations particularly in relation to moving towards a ‘one-touch’ approval process for projects that are likely to have an impact on matters of national environmental significance. Environmental Minister Sussan Ley observed in her speech dated 27 August 2020 that this first tranche was “a move towards a single-touch approach to environmental approvals”. On 3 September 2020, the EPBC Amendment Bill was passed through the Commonwealth House of Representatives, introducing two areas of key reforms to current environmental protection laws. We outline these as follows.
Approval Bilateral Agreement Changes
The EPBC Amendment Bill’s proposed section 66A will be introduced in an effort to streamline the approvals process and reduce duplication between Commonwealth and State and Territory approvals. Under the proposed section, an action under Part 7 of the EPBC Act will be prevented from being referred to the Minister where a bilateral approval agreement in place. The effect of this is that if an action is covered by a bilateral approval agreement, proponents will no longer need to refer actions at a Commonwealth level to the relevant Minister, being the Environment Minister Sussan Ley MP. The amendments made under section 66A of EPBC Amendment Bill will apply in relation to a referral of a proposal to take an action under section 68 of the EPBC Act, whether made before, on or after the day of commencement. Nevertheless, the Minister retains a discretion to determine, in writing, that the amendments do not apply for a referral made before commencement.
All actions covered under a bilateral approval agreement will be delegated to the relevant State and Territory for assessment and determination, which would permit States and Territories to make approval decisions for matters traditionally dealt with under the EPBC Act, including nationally threatened species and World Heritage sites. However, the EPBC Amendment Bill contemplates if a bilateral agreement were to fall apart (e.g. due to suspension or cancellation), or in the event that the Commonwealth Minister exercises their ‘call in powers’ under the EPBC Act (for example, where adequate protection is not being achieved under the bilateral approval agreement), the Commonwealth may resume its role as the primary facilitator of the environmental approval. In these circumstances, the amendments in Schedule 2 of the EPBC Amendment Bill 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 EPBC Act, thereby avoiding the need for proponents to go back to the beginning of the process.
The proposed changes will also enable minor changes to State or Territory approval processes without affecting the accreditation of those processes under a bilateral agreement or requiring amendment to the bilateral agreement.
Under the current sections 24D and 24E of the EPBC Act (the water trigger), large coal mining developments and coal seam gas developments require approval if the action has, will have, or is likely to have a significant impact on a water resource. The EPBC Act provides an exception if Part 4 of the Act allows the action to be taken without approval under Part 9 as long as it is covered by an approval bilateral agreement. However, subsections 46(1), 46(2) and 46(2A) currently prohibit an approval bilateral agreement from applying to the water trigger.
The amendments seek to remove the current duplication that exists between State, Territory and Commonwealth approval processes, by allowing the States and Territories to approve actions for the purpose of the water trigger where the action is covered by an bilateral approval agreement.
The EPBC Amendment Bill must now pass through the Commonwealth Senate in order to become law. This Bill offers insight into the priorities of key environmental reforms by the Commonwealth as a response to Professor Samuel’s observations. However, significantly, the proposed reforms do not include any enabling of national environmental standards which were a key plank of the reforms as recommended by Professor Samuel. It is clear that the proposed amendments seek to decentralise the approvals process at a Commonwealth level, however whether this will have its intended effect will largely depend on the willingness of the State and Territory governments to enter into bilateral approval agreements which may largely turn on the required standards of the Commonwealth to accredit State or Territory approval processes.
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