Commonwealth and Queensland finalise the Revised Assessment Bilateral Agreement under the EPBC

by David Nicholls, Gemma Ayriss

On 13 December 2013, the Commonwealth and Queensland Governments entered into a revised assessment bilateral agreement (Revised Assessment Bilateral) under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC). The Revised Assessment Bilateral amends the original assessment agreement entered into in 2009, and follows amendments made in December 2009 and June 2012.

The Revised Assessment Bilateral is the second step towards a “one-stop-shop” for environmental approvals. It moves Queensland closer to the much anticipated approval bilateral agreement (Approval Bilateral), which will delegate final decision making powers on projects assessed under the EPBC to the relevant State or Territory.

One-Stop-Shop Overview

The “one-stop-shop” framework was announced by the Minister for the Environment, the Hon Greg Hunt MP, on 16 October 2013. The aim is to accredit State planning systems under national environmental law (the EPBC) to create a single approval process that satisfies both state and Commonwealth requirements.

Implementation consists of three stages involving the Commonwealth and Queensland:

  1. signing a Memorandum of Understanding;
  2. updating the original assessment bilateral agreement; and
  3. settling an approval bilateral agreement within 12 months.

Queensland and the Commonwealth signed a Memorandum of Understanding on 18 October 2013. The Revised Assessment Bilateral marks the completion of step two. The third and most important step, the Approval Bilateral, is anticipated to be in place by 18 September 2014.

Revised Assessment Bilateral– what’s changed?

The Revised Assessment Bilateral amends the existing assessment bilateral agreement in a number of respects including:

  • expanding the actions covered by the assessment bilateral;
  • changing consultation requirements; and
  • a commitment by both Queensland and the Commonwealth to improve the efficiency and effectiveness of their own administrative processes.

Expansion of the actions covered by the assessment bilateral

The Revised Assessment Bilateral broadens the scope of matters of “national environment significance” covered by the agreement to include:

  • actions that are within the Great Barrier Reef Marine Park;
  • actions relating to Commonwealth marine areas; and
  • nuclear actions.

The inclusion of these actions allows Queensland assessment processes to be used under the EPBC, although the final decision on whether to approve a project remains with the Commonwealth Environmental Minister until an Approval Bilateral is executed.

Change of Consultation Requirements

The changes in consultation requirements primarily affect the terms of reference for Environmental Impact Statements and the draft assessment report.

Earlier this year, the Queensland Government released two sets of generic Terms of Reference, the first for Environmental Impact Statements for resource projects assessed under the Environmental Protection Act 1993 and the second for resource projects assessed under the State Development and Public Works Organisation Act 1971.

Both generic Terms of Reference stipulate that an EIS for a project that is a controlled action must address the “controlling provisions” under the EPBC, and contain an assessment of impacts, mitigation measures and any offsets for residual impacts for matters of national environmental significance.

The Revised Assessment Bilateral stipulates that Queensland will use standard Terms of Reference that have been agreed with the Commonwealth. While not entirely clear from the Revised Assessment Bilateral, this appears to endorse the Generic Terms of Reference as the standard Terms of Reference for the bilateral assessment process.

Previously, the assessment bilateral required Queensland to provide draft terms of reference to the Commonwealth before the terms of reference were finalised. Now, the standard Terms of Reference will apply, unless there is a need to make substantial modifications to a project, or where there are no standard terms of reference (for instance, for non resource projects). In those circumstances, there is to be consultation between the State and the Commonwealth.

The draft assessment report referred to in the Revised Assessment Bilateral means:

  • the EIS Evaluation Report prepared by the Coordinator-General under the State Development and Public Works Organisation Act 1971;
  • the EIS Assessment report prepared by the Chief Executive under the Sustainable Planning Act 2009; or
  • the EIS Assessment report prepared by the Chief Executive under the Environmental Protection Act 1994 as applicable, and is restricted to the chapter on impacts on matters of National Environmental Significance.

The Revised Assessment Bilateral stipulates that the draft assessment report will be provided once to the Commonwealth for comment, with Queensland and the Commonwealth then endeavouring (to the greatest extent possible) to agree on a proposed set of common, outcome-focussed conditions.

The consultation theme is continued for matters of national environment significance, with the Revised Assessment Bilateral now expressly providing that the State may seek advice on relevant matters from Commonwealth agencies with relevant expertise (such as the Great Barrier Reef Marine Park Authority).

Improved efficiency and effectiveness for administrative processes

The other broad area covered by the Revised Assessment Bilateral is administrative processes. The governments have made a commitment to:

  • greater up-front guidance to industry;
  • common streamlined generic Terms of Reference;
  • standard outcome-focused conditions;
  • Commonwealth officers outposted to Queensland and vice versa;
  • increased data sharing across governments and provision of industry data from environmental impact statements to the public; and
  • project control and monitoring mechanisms.

The most significant of those commitments relates to conditions. The express objective is imposing a single set of outcome-focused conditions for actions affecting matters of national environmental significance, and avoiding (to the greatest extent possible) the need for additional conditions from the Commonwealth Environmental Minister.

Transitional Arrangements

The intent of the Revised Assessment Bilateral is to enable projects to move from a parallel Commonwealth/Queensland assessment process to a single accredited assessment process administered by Queensland, subject to the proponent’s agreement, from commencement of the agreement on 13 December 2013. Eligible projects that are currently being assessed under Part 8 of the EPBC may continue to be assessed under the current Commonwealth process, if the proponent elects to do so.

Next Steps

Negotiation of the Approval Bilateral is expected over the next 12 months. The draft Approval Bilateral is slated for release for public consultation in April 2014. The final goal is to have the Approval Bilateral in place by 18 September 2014.

With offices in Brisbane, Perth and on-the-ground support in Shanghai, HopgoodGanim offers commercially focused legal advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders. 

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