Environment Protection and Biodiversity Conservation Act 1999

Assessment Bilateral Agreement Draft Conditions Policy

February 2015

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Commonwealth of Australia, 2015.Environment Protection and Biodiversity Conservation Act 1999—Assessment Bilateral Agreement Conditions Policy islicensed by the Commonwealth of Australia for use under a Creative Commons By Attribution 3.0 Australia licencewith the exception of the Coat of Arms of the Commonwealth of Australia, the logo of the agency responsible forpublishing the report, content supplied by third parties, and any images depicting people. For licence conditions see:http://creativecommons.org/licenses/by/3.0/au/This report should be attributed as ‘Environment Protection and Biodiversity Conservation Act 1999—Assessment BilateralAgreement Conditions Policy, Commonwealth of Australia 2015’.The Commonwealth of Australia has made all reasonable efforts to identify content supplied by third parties using thefollowing format ‘© Copyright, [name of third party] ’.Image credits:Front cover—Andrew HeaneyBack cover—Fusion FilmsPage 4—Dragi MarkovicPage 7—(top) Babs & Bert Wells (CALM), (bottom) Dragi Markovic

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Page 8—Nick RainsPage 11—(left) Matthew P Bolton, (right) Jenny TomkinsPage 12—Andrew Tatnell

Contents1. Introduction

2. Regulatory Context 2.1 The EPBC Act 2.2 Duplication between Commonwealth and state conditions 2.3 Commonwealth and state condition setting

3. Risk-based approach

4. Australian Government condition setting 4.1 Option 1: No conditions 4.2 Option 2: Single condition 4.3 Option 3: Additional conditions

5. Conditions set in accordance with state policy

Appendix A

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1.Introduction

The One-Stop Shop will streamline environmental assessment and approval processes by removing regulatory duplication between the Australian Government and states and territories. The One-Stop Shop will be implemented through assessment and approval bilateral agreements under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

This Conditions Policy relates to the Australian Government approach to setting conditions for projects assessed under an assessment bilateral agreement where that state or territory has made particular commitments in relation to setting conditions to protect matters of national environmental significance. The Conditions Policy also sets out the Australian Government approach to setting conditions in accordance with endorsed state policies under and outside assessment bilateral agreements.

Consistent with section 49 of the EPBC Act, and the assessment bilateral agreements (unless otherwise stated in the relevant agreement), this policy does not have effect in relation to:

an action in a Commonwealth area 

where an action is not wholly within a Commonwealth area – that part of the action that is in a Commonwealth area, or

an action taken by the Commonwealth or a Commonwealth agency.

This policy does apply to an action that is outside a Commonwealth area, but has, will have or is likely to have a significant impact on a Commonwealth area.  

While this policy statement provides guidance on setting conditions, the Commonwealth Minister and his delegates (the Commonwealth decision maker) retain the discretion to make decisions considering the particular circumstances of each project and are not bound by this policy.

2.Regulatory Context

2.1 The EPBC ActThe EPBC Act is the Australian Government's primary environmental legislation, administered by the Australian Government Department of the Environment. The EPBC Act provides a national scheme of environment and heritage protection and biodiversity conservation, and enables the Australian Government to regulate development proposals in relation to matters of national environmental significance. Matters of national environmental significance include nationally threatened species and ecological communities, migratory species, wetlands of international importance, the Great Barrier Reef Marine Park, national heritage places, world heritage properties, nuclear actions and a water resource, in relation to coal seam gas development and large coal mining development.

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States and territories have responsibility for matters of state and local significance, although many state and territory matters are also listed under the EPBC Act. This has resulted in some overlap in environmental regulation in Australia.

Currently, proponents submit an application to a state or territory government for an environmental approval for their project. If the project is likely to have a significant impact on a matter of national environmental significance, a separate application (referral) to the Australian Government is required under the EPBC Act. Duplication and inefficiencies may occur where there is overlap between the Australian Government conditions and conditions set under state or territory approvals. Such overlaps could require proponents to provide similar information to two or more government agencies at different levels or to comply with similar conditions in different ways. Overlaps can also create regulatory confusion about regulatory responsibility.

2.2 Duplication between Commonwealth and state conditionsDuplication between state and territory environmental assessment and approval processes and the EPBC Act, including in relation to approval conditions, has been recognised as costly by the Productivity Commission1 and the Council of Australian Governments.2

The current regulatory process has resulted in unnecessary duplication and delays, resulting in:

Administrative costs, for example, completing two separate application forms and reporting to two separate regulators, and

Delay costs, for example, waiting for an Australian Government project approval after a state or territory project approval.

Through the One-Stop Shop the Australian Government and states and territories are moving toward a national, shared, strategic approach to environmental regulation with a clear governance structure. The One-Stop Shop will reduce duplication of environmental assessment and approval process between the Australian Government and states and territories. This will improve business efficiency while maintaining high environmental standards. More information on the One-Stop Shop can be found in: Fact Sheet 1: What is the One-Stop Shop?

A three-stage approach is being taken to implement the One-Stop Shop:

Memoranda of Understanding (MOUs) with each state and territory

Assessment bilateral agreements with each state and territory, and

Approval bilateral agreements with each state and territory.

A strong assurance framework will be implemented under approval bilateral agreements to ensure that high environmental standards are maintained. The assurance framework includes national environmental standards that states and territories are required to meet to be

1 Productivity Commission 2013, Major Project Development Assessment Processes, Research Report, Canberra.

2 COAG Meeting Communiqué,13 December 2013.

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accredited; performance assurance to ensure commitments are met under the assessment or approval bilateral agreements and outcomes assurance to ensure good outcomes for business and the environment. Information about the assurance framework can be found in: Fact Sheet 3: A Strong Assurance Framework.

Under the One-Stop Shop a single regulator will have responsibility for considering all relevant environmental matters. There will be a single holistic environmental assessment and approval decision that addresses state matters and matters of national environmental significance. A single, cohesive decision, with clear regulatory responsibilities, is more likely to effectively manage impacts on interconnected elements of the environment.

This policy relates to assessment bilateral agreements under the One-Stop Shop and will help to maximise the benefits of those agreements.

2.3 Commonwealth and state condition settingReducing duplication and improving environmental outcomes is an overall objective of the One-Stop Shop policy. Reducing duplication between state or territory and EPBC Act conditions is a core element of achieving that outcome. The Australian Government recognises the environmental, social and economic benefits of not imposing duplicative or inconsistent conditions on approvals.

The social and economic benefits include a simpler, more efficient approval process which will increase certainty for investors and reduce costs for business. For example, wherever possible, proponents will only have to comply with one set of conditions.

Under the MOUs and assessment bilateral agreements the Australian Government and states and territories have committed to removing unnecessary duplication in the assessment and approval process, while maintaining high environmental standards.

Reducing duplication in the context of environmental reforms includes inviting states and territories to make additional commitments under assessment bilateral agreements in relation to the manner in which a state or territory decision addresses the likely impacts to matters of national environmental significance. For example, this could be done through revised assessment bilateral agreements (“the additional commitments”).

The additional commitments include that the state or territory will:

ensure that its decisions to approve actions and attach conditions (if any) address the likely significant impacts on matters of national environmental significance

provide a recommendation report to the Australian Government on whether the action should be approved under the EPBC Act, what conditions should be attached for matters of national environmental significance, reasons for the recommended decision and conditions, and a statement that the recommendation complies with relevant legislative and policy requirements

continue to monitor compliance with conditions, including those relating to managing impacts on matters of national environmental significance, and

report to the Australian Government on compliance with the state conditions, and any variations or breaches to state conditions.

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Under this system states and territories will have primary responsibility for assessing impacts and setting and enforcing conditions for matters of national environmental significance. This will enable the Commonwealth decision maker to adopt a more systematic approach to managing impacts on matters of national environmental significance by placing greater reliance on state and territory approval conditions when deciding whether or not to approve projects and add conditions under the EPBC Act. States and territories will demonstrate the effectiveness of their conditions and their compliance activities through annual reporting to the Commonwealth, creating a feedback loop which will influence the degree to which the Commonwealth can rely on state conditions in the future.

The Commonwealth decision maker will retain the power under the EPBC Act to add or vary the conditions of approval in particular circumstances. Those circumstances include where the significant impacts of an action were not previously identified (either in nature or scale) and the Commonwealth decision maker considers that a change to the conditions of the approval is needed to protect matters of national environmental significance3. For example, where the impact was assessed by the state and conditions set accordingly, the Commonwealth relied on the assessment and approved the action, however, in practice the proponent’s taking of the action resulted in a significant impact which was not foreseen by the state or the Commonwealth.

3.Risk-based approach The Australian Government is developing a policy framework to ensure conditions for environmental approvals are guided by a risk-based approach. This will result in conditions on approved projects being tailored, fit-for-purpose and appropriate to the level of environmental impact likely to result from the approved project.

The Australian Government recognises that it will not always be appropriate to rely solely on state or territory approval conditions either because the Commonwealth decision maker considers that additional conditions are required to protect matters of national environmental significance or because of the consequence of non-compliance. The Australian Government will employ a risk-based approach to setting conditions in environmental approvals. A risk assessment will be conducted at the end of the environmental assessment, before an approval decision is made, which will be directed toward assessing the risk that the project could cause serious or irreversible harm to matters of national environmental significance. The risk assessment will include consideration of factors such as the sensitivity of the protected matter, the scale and intensity of the potential impacts, and the likelihood of compliance with state and territory conditions, including the compliance history of the proponent.

The risk assessment will incorporate information from additional commitments states will make such as reporting, audits, and information sharing (referred to above at 2.3).

3 EPBC Act, Section 143

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4.Australian Government condition setting

Based on the risk assessment conducted prior to the approval decision, the Commonwealth decision maker will, except in exceptional circumstances, use a condition setting hierarchy for projects under a revised assessment bilateral agreement, to reduce the duplication with state and territory conditions.

The hierarchy consists of the following options: attaching no conditions

attaching a single condition to require compliance with particular state or territory conditions, or

attaching additional conditions to protect matters of national environmental significance.

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4.1. Option 1: No conditions

The Commonwealth decision maker will not attach additional conditions where the likelihood of the project causing unacceptable impacts on matters of national environmental significance is low. The Commonwealth decision maker needs to be satisfied that the state conditions will be adequate to ensure that the likely impact on matters of national environmental significance is acceptable. The result of the risk assessment will assist in this determination.

The Commonwealth decision maker can rely on general system checks, such as reporting, audits and commitments in the bilateral agreement or administrative arrangements when deciding to rely on state or territory conditions to protect matters of national environmental significance. For example, through the annual reports provided by the state or territory the Australian Government will monitor the effectiveness and efficiency of the system in protecting matters of national environmental significance. This will allow the state to make changes to the system where necessary. If there are systematic issues of proponent non-compliance or conditions which do not adequately protect matters of national environmental significance, these issues will affect the risk assessment for future projects in the relevant state.

Despite an initial decision not to impose any conditions, the Commonwealth decision maker retains the ability in certain circumstances to add conditions post approval to address significant impacts on matters of national environmental significance (see 2.3 above).

4.2. Option 2: Single condition

The Commonwealth decision maker will attach a single condition requiring compliance with particular state or territory conditions (designed to protect matters of national environmental significance) where it considers that non-compliance with state or territory conditions could potentially cause unacceptable impacts on matters of national environmental significance. The result of the risk assessment will assist in this determination. The single condition may include standard administrative requirements for the implementation of compliance and enforcement activities.

Under this approach, the proponent would only be required to comply with a single set of conditions. The setting of the compliance condition also provides assurance that the Commonwealth would be able to take enforcement action under the EPBC Act if the conditions were not complied with, recognising that this may be appropriate in cases where unacceptable impacts to a matter of national environmental significance has occurred, or is likely to occur.

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4.3. Option 3: Additional conditions

Only in exceptional circumstances, the Commonwealth decision maker will attach conditions in relation to impacts on specific matters of national environmental significance not addressed in state conditions where:

the state or territory has recommended that the Commonwealth attaches a condition or conditions, or

the Commonwealth decision maker considers that the state or territory conditions do not adequately address the impacts on matters of national environmental significance.

The additional conditions may include standard administrative conditions for the implementation of monitoring, compliance and enforcement activities.

Whether the Commonwealth decision maker considers it appropriate to impose additional conditions will depend on the relevant statutory considerations, the circumstances and risk assessment of the particular project and may include factors such as:

any assurance provided by the state or territory, which indicates that additional Commonwealth conditions are not necessary to address impacts on matters of national environmental significance, and

any recommendations from the state or territory to the Commonwealth relating to conditions for impacts on matters of national environmental significance.

The state or territory may address these matters in an assessment report or accompanying information provided to the Australian Government under an assessment bilateral agreement.

Where the Commonwealth decision maker attaches conditions not recommended by the state or territory, the Commonwealth’s reasons will be contained in a Statement of Reasons in line with the statutory requirements of the EPBC Act.

The setting of additional conditions also provides assurance that the Commonwealth would be able to take enforcement action under the EPBC Act if the conditions were not complied with, recognising that this may be appropriate in cases where unacceptable impacts to a matter of national environmental significance has occurred, or is likely to occur.

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5.Conditions set in accordance with state policy

Where states and territories have a corresponding policy (or guideline) to a non-statutory Australian Government policy, the Australian Government may endorse the state or territory policy if it is consistent with the Australian Government policy. A state or territory policy may be endorsed in relation to projects under, as well as outside, an assessment bilateral agreement.

Appendix A to this policy sets out the list of endorsed state and territory policies.

Where a project demonstrates compliance with an endorsed state or territory policy the corresponding Australian Government policy will not need to be separately considered by the state or territory, or the Commonwealth decision maker. The Australian Government policy will continue to apply where the project does not comply with the endorsed state or territory policy. Under an assessment bilateral agreement, compliance with a state or territory policy can be demonstrated through the assessment report and recommended approval decision. Outside an assessment bilateral agreement, proponents should discuss any proposal to comply with an endorsed state or territory policy with the relevant officers of the Australian Government Department of the Environment.

This approach will improve the effectiveness and efficiency of the assessment and approval process by enabling the use of state-specific information and creating a simpler regulatory environment for proponents.

Cooperative arrangements for the ongoing development, maintenance, review and implementation of guidance documents relating to matters of national environmental significance are set out in the assessment bilateral agreements and draft approval bilateral agreements.

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Appendix A

List of endorsed state and territory policies

NSW Biodiversity Offsets Policy for Major Projects, published by the Office of Environment and Heritage for the NSW Government in September 2014

Fisheries NSW Policy and Guidelines for Fish Habitat Conservation and Management (2013 update), published by the Department of Trade and Investment, Regional Infrastructure and Services for the NSW Government in June 2013

Rules established under section 127B of the Threatened Species Conservation Act 1995 (NSW)

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