The Commonwealth Government has taken the first step in a staged approach to reform of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (Cth) (EPBC Amendment Bill) was introduced to Parliament on 27 August 2020, largely reflective of reforms to the bilateral approval agreement provisions first proposed in 2014.

The EPBC Amendment Bill comes just over a month after the Interim Report of the Independent Review into the EPBC Act was published.

It is aligned with one of the key recommendations in the Interim Report, being devolution of approvals to the States and Territories.

Snapshot

• The main objective of the EPBC Amendment Bill is to enable devolution of approval powers to the States and Territories and to improve the bilateral agreement process. Notably, it clarifies that an action cannot be referred under Part 7 of the EPBC Act if it is covered by an approval bilateral agreement.
• Minor changes to State and Territory assessment processes will be possible without impacting the continuity of the bilateral agreement.
• The prohibition on matters involving the water trigger will be removed.

Overview

The EPBC Amendment Bill pursues the same legislative objective as the ‘One Stop Shop’ reforms proposed in the Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014 (Cth). The proposed amendments all center on changes to the bilateral agreement provisions, particularly to facilitate progress of agreements with States and Territories on approvals.

The ease with which the EPBC Amendment Bill may be passed is currently uncertain. The Labor Shadow Minister for the Environment has expressed criticism of the Bill and urged the Government to first finalise the national environmental standards promoted in the Interim Report and “establish a genuinely independent ‘cop on the beat’ for Australia’s environment”.

Below we touch on the key amendments that are proposed in the EPBC Amendment Bill.

No referral of actions within the scope of an approval bilateral agreement

Proposed new section 66A will prevent referral of an action under Part 7 of the EPBC Act where an approval bilateral agreement is in place for that class of actions. Referral will be prevented even where the State or Territory government has not yet assessed the action.

In the event that a bilateral agreement is suspended or cancelled part way through an assessment, 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.

Call in power

The explanatory memorandum to the EPBC Amendment Bill anticipates that bilateral approval agreements will include a provision allowing an action to be excluded from the approved class of actions where, for instance, adequate environmental protection will not be achieved. Proposed new section 69A will authorise the Commonwealth Minister to call in an action that has been excluded by declaration. Exercise of this call in power will have the effect of a referral.

If such a declaration is made part way through the State or Territory assessment process, as for suspension/cancellation of the bilateral agreement, the assessment that has been undertaken will still be taken into account by the Commonwealth.

Water trigger

Currently, approval bilateral agreements cannot permit actions to be approved by a State or Territory which fall under the water trigger. The EPBC Amendment Bill will remove this prohibition.

Greater flexibility and continuity to account for process changes over time

One of the difficulties with the existing assessment bilateral agreements is that objectively minor changes to State or Territory processes can impact upon the operation of those agreements. The EPBC Amendment Bill contains several amendments targeted at enabling greater flexibility around those processes without impacting the continuation of bilateral agreements. It will enable States and Territories to:

• make minor amendments to their 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 such as expert bodies 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.

The full text of the EPBC Amendment Bill and explanatory memorandum can be found here.

Peter Briggs, Heidi Asten, Mel Debenham, Madeline Simpson (with special thanks to the contribution of Edward Watson)