WA’s proposed amendments to the Environmental Protection Act announced – here is what you should know

On 15 August 2024, the WA State Government tabled the Environmental Protection Act Amendment Bill 2024 (EP Amendment Bill) amending the Environmental Protection Act 1986 (WA) (EP Act). These reforms are part of the State Government’s commitment to implement the recommendations set out in the December 2023 ‘Independent Review of WA Environmental Approval Processes and Procedures’, prepared by former Environmental Protection Authority (EPA) chair Dr Paul Vogel and planning expert David McFerran (Vogel-McFerran Review). The EP Amendment Bill principally amends provisions relating to referral of proposals and environmental impact assessments under Part IV of the EP Act.

As covered in our blog post in December, the Vogel-McFerran Review made 39 recommendations to improve the environmental approvals framework in WA and streamline project applications.

The State Government’s intent for these reforms is to support fast-tracking the approvals process, while increasing transparency. We have set out the key elements of the EP Amendment Bill below.

Ministerial Statement of Expectation

There is a new requirement for the Minister for Environment to issue an a Ministerial ‘Statement of Expectation’ to the EPA. The purpose of the Statement of Expectation is to set out the Minister’s objectives on matters relating to the EPA’s functions. Statement of Expectation provisions are a common feature in other statutory schemes that involve an independent assessing or decision-making body. 

The Minister will have discretion to determine which matters are to be covered by the Statement of Expectation, which will take effect the day after it is issued. The Statement of Expectation will be tabled before each House of Parliament and published by the EPA. The EPA must have regard to the Statement of Expectation in carrying out its functions.

The Statement of Expectation must be reviewed at least every four years.

Parallel decision-making during environmental impact assessments

New provisions are intended further to enable parallel decision-making to take place for proposals that are subject to Part IV of the EP Act.

Section 41 of the EP Act currently provides that a ‘decision-making authority’ (DMA) cannot make decisions that could have the effect of causing or allowing a proposal to be implemented before the Part IV EP Act process is complete. The only current exception is section 18 consents under the Aboriginal Heritage Act 1972 (WA). The EP Amendment Bill further limits this DMA prohibition to ‘restricted decisions’. Classes of ‘restricted decisions’ that the prohibition applies to may be prescribed by the regulations.

The other requirements of section 41 of the EP Act must still be satisfied (eg the restricted decision must not be a decision that could have the effect of causing or allowing the relevant proposal to be implemented). 

Clarifications are also made in respect of similar prohibitions in Part V of the EP Act relating specifically to decisions on clearing permits, works approvals and licences. 

No change is made to the prohibition on implementing a proposal under section 41A of the EP Act. Existing section 41A(3) of the EP Act enables minor or preliminary works to be undertaken during the assessment process with EPA consent. The EP Amendment Bill provides a new power to make regulations that prescribe work that is minor or preliminary work for the purposes of the EP Act.

Finally, the EP Amendment Bill contains provisions which will allow Part V approvals to be amended to ensure they are consistent with a Ministerial Statement (to reflect the changes that restricted decisions can be made during the environmental impact assessment process). Amendments for this purpose cannot be appealed.

Increased penalties for implementing a Part IV EP Act proposal during the assessment 

The EP Amendment Act doubles the financial penalties for breaches of section 41A(1), being implementation of a proposal under assessment. The financial penalties will now be increased to:

• $125,000 for an individual and daily penalties of $25,000; and
• $250,000 for a body corporate and daily penalties of $50,000.

Exchange of information between EPA and decision-making authorities

The power to make regulations has been expanded to specifically  cover the following matters:

• requirements for the EPA to report to DMAs on matters relating to the referral, assessment or implementation of Part IV EP Act proposals;
• requirements for DMAs to report to the EPA and/or other DMAs on matters relating to their decisions or activities in respect of Part IV EP Act proposals; and
• the timing, form or content of such reports.

Requirement to publish directions of the Minister and decisions of the EPA

​​​​​​Under the existing provisions of the EP Act, the Minister may, after consulting with the EPA, direct the EPA on its assessment report on a proposal. The Minister will now be required to publish its reasons if such a direction is made.

The EPA will also be required to publish a summary of its reasons for determining not to assess a proposal under Part IV of the EP Act.

Removal of appeal rights

The EP Amendment Bill removes the right to appeal against a decision of the EPA not to assess a proposal referred under Part IV of the EP Act. 

EPA membership

The membership of the EPA will be expanded from five members to between five to nine members. Members will continue to be appointed by the Governor upon the recommendation of the Minister. 

Express qualification requirements for EPA members will now be provided. The Minister can only recommend a person for appointment to the EPA if that person has a suitable level of interest in and experience of matters affecting the environment generally. Experience is also required in respect of one or more of the following:

• environmental science; 
• natural resource and biodiversity management;
• waste management and pollution control; 
• industry, commerce or economic development;
• public administration, governance, regulation or law; or
• regional areas and issues. 

The maximum term of appointment for each member has been reduced from five years to three years. 

EPA member conflict of interest

There are strengthened provisions in respect of EPA members conflicts of interests.

If an EPA member has a direct or indirect pecuniary interest in a matter that is or will be before a meeting of the EPA, the EPA member must disclose the nature of this interest as soon as possible. This is opposed to the current position, which only requires EPA members to make such disclosures at EPA meetings. 

If an EPA member discloses an interest or is determined to have an interest in a matter, that member cannot be present at any EPA meeting considering, discussing or voting on that matter. This is opposed to the existing position which allows the member to be present, but not participate in considerations, discussions or votes in respect of the relevant matter.

For more detailed advice in relation to how these reforms may affect you, please contact Melanie Debenham, Naomi Hutchings or Amelia Arndt.