Draft Approval Bilateral Agreement

draft approval bilateral agreement

made under sections 45 and 46 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Commonwealth of Australia

(Commonwealth)

and

The State of Queensland

(Queensland)

Bilateral Agreement under sections 45 and 46 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)1

DRAFT

Table of contents

Details

Provisions5

1.Definitions and interpretation

2.Nature of this Agreement

3.Agreement period

4.Effect of this Agreement

5.Assessment

6.Decisions on approval

7.Transparency and access to Information

8.Co-operation

9.Protection of heritage values

10.Administrative Arrangements

11.Reports

12.Review of the Agreement

13.Information sharing and compliance

14.Audits

15.Rectification

16.Escalation

17.Suspension or cancellation

18.Transitional

19.Amendment

20.Freedom of information

21.General provisions

Schedule 1 – Declared class of actions

Schedule 2 – Open access to Information

Schedule 3 – Guidance documents for species and ecological communities

Schedule 4 – Additional streamlining measures

Execution page

Bilateral Agreement under sections 45 and 46 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)1

DRAFT

Details

Parties

The parties to this Agreement are:

1. the Minister for the Environment for and on behalf of the Commonwealth of Australia (Commonwealth); and
2. the Queensland Ministers for and on behalf of the State of Queensland (Queensland).

Background

1. Under the Intergovernmental Agreement on the Environment 1992 and the Council of Australian Governments Heads of Agreement on Commonwealth and State Roles and Responsibilities for the Environment 1997, the parties committed to working together across their shared responsibilities to protect and conserve Australia’s environment.
2. Both the Commonwealth and Queensland are committed to cooperative efforts to strengthen intergovernmental cooperation on the environment and to minimise costs to business while maintaining high environmental standards.

Objects

1. Under the Memorandum of Understanding dated 18 October 2013, the Commonwealth and Queenslandcommitted to the establishment of a ‘one-stop-shop’ for environmental approvals under the EPBC Act, removing duplication of assessment and approval processes while maintaining high environmental standards.
2. This Agreement facilitates the establishment of a ‘one-stop-shop’ for environmental approvals by:

1. identifying the authorisation processes that will be accredited by the Commonwealth Minister under section 46 of the EPBC Act; and
2. declaring that the actions in the class of actions specified in Schedule 1 do not require approval under Part 9 of the EPBC Act for the purposes of the provisions of Part 3 of the EPBC Act specified in Schedule 1.

1. This Agreement aims to:

1. ensure Australia complies fully with all its international environmental obligations;
2. ensure Matters of National Environmental Significance (Matters of NES) are protected as required under the EPBCAct;
3. promote the conservation and ecologically sustainable use of natural resources;
4. ensure an efficient, timely and effective process for environmental assessment and approval of actions; and
5. minimise duplication in the environmental assessment and approval process through Commonwealth accreditation of the processes of Queensland.

1. The parties will use their best endeavours to implement the commitments in this Agreement acting in a spirit of cooperation and consultation to achieve an efficient, timely and effective process for environmental assessment and approval.

Provisions

1.Definitions and interpretation

1.1Definitions

In this Agreement, except where the contrary intention is expressed, terms have the same meaning as in the EPBC Act and otherwise the following definitions are used:

Accredited Process / an authorisation process accredited by the Commonwealth Minister under section 46(3) of the EPBC Act for the purposes of this Agreement.
Administrative Arrangements / administrative arrangements made under clause 10.1 of this Agreement.
Agreement / this bilateral agreement made under section 45 of the EPBC Act between the Commonwealth and Queensland, as amended from time to time, and includes its Schedule(s).
Application / a properly made application to take an action, lodged in accordance with an Accredited Process.
Assessment Bilateral Agreement / theagreement between the Commonwealth and Queensland dated 11 August 2009 made under section 45 of the EPBC Act, as amended from time to time.
Assessment Report / a report prepared by Queensland on the impacts of an action that is the subject of an Application made under an Accredited Process.
Commencement Date / the date this Agreement is executed by the parties or, if executed on separate days, the date on which this Agreement is executed by the last party to do so.
Commonwealth Minister / the Minister administering the EPBC Act and includes a delegate of the Minister unless expressly provided otherwise.
Department / the Commonwealth Department of the Environment, or any other Commonwealth agency that administers this Agreement from time to time.
EP Act
EPBC Act / theEnvironmental Protection Act 1994 (Qld).
theEnvironment Protection and Biodiversity Conservation Act 1999 (Cth).
EPBC Act Environmental Offsets Policy / theEnvironment Protection and Biodiversity Conservation Act 1999 Environmental Offsets Policy, October 2012 and as amended by the Commonwealth Minister from time to time.
Great Barrier Reef Marine Park Authority / the authority established by section 6 of the Great Barrier Reef Marine Park Act 1975 (Cth).
Information / includes data.
Law / any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in Australia, whether made by a State, Territory, the Commonwealth, or a local government, and includes the common law and rules of equity, as applicable from time to time.
Matter of NES / amatter of national environmental significance protected by a provision of Part 3 of the EPBC Act specified in Item 2 of Schedule 1.
QueenslandMinister / the Queensland Minister(s) responsible for administering the Queensland Laws specified in Schedule 1 of this Agreement, and includes a delegate of the Queensland Minister(s) unless expressly provided otherwise.
Queensland Offsets Register / the register established and kept under section 89 of the Environmental Offsets Act 2014(Qld), once passed.
Reef Trust / the programme of that name, jointly coordinated by the Commonwealth and Queensland, the objective of which is to fund projects that will assist in the ongoing protection and management of the Great Barrier Reef World Heritage Area.
Note: The Reef Trust will consolidate government and private funds, including funding derived from the pooling of offset funds that target specific residual impacts on the Great Barrier Reef from development activities as required under the EPBC Act.
Schedule / a schedule to this Agreement.
SDPWO Act
Site / the State Development and Public Works Organisation Act 1971 (Qld)
includes Queensland and Commonwealth premises.
Supervising Scientist / the office established under section 4 of the Environment Protection (Alligator Rivers Region) Act 1978 (Cth) and includes any other person that may, from time to time, perform the functions of that office.

1.2Interpretation

In this Agreement, except where the contrary intention is expressed:

(a)the singular includes the plural and vice versa, and a gender includes other genders;

(b)another grammatical form of a defined word or expression has a corresponding meaning;

(c)the meaning of general words is not limited by specific examples introduced by ‘for example’ or similar expressions;

(d)a reference to a clause, paragraph, Schedule or annexure is to a clause or paragraph of, or Schedule or annexure to, this Agreement;

(e)a reference to a statute, ordinance, code or other Law includes regulations and other instruments under it and consolidations, amendments, reenactments or replacements of any of them; and

(f)notes and headings are for convenient explanation or reference only and do not form part of this Agreement or affect the meaning of the provisions to which they relate.

1.3Priority of Agreement documents

(a)If there is inconsistency between any of the documents forming part of this Agreement, those documents will be interpreted in the following order of priority to the extent of any inconsistency:

(i)Schedule 1; then

(ii)the details and operative provisions of this Agreement; then

(iii)Schedules 2 to 4 in order of appearance.

(b)Administrative Arrangements will be read subject to this Agreement.

2.Nature of this Agreement

(a)This Agreement is a bilateral agreement for the purposes of section 45 of the EPBC Act.

(b)The parties do not intend this Agreement to create contractual or other legal obligations between the parties, other than as provided for in the EPBC Act.

3.Agreement period

This Agreement commences on the Commencement Date and expires on the day after the tenth anniversary of the Commencement Date, unless the Agreement is suspended or cancelled earlier in accordance with the EPBC Act.

Note: Section 65(2) of the EPBC Act requires the Commonwealth Minister to cause a review of the operation of this Agreement to be carried out at least once every five years while this Agreement remains in effect.

4.Effect of this Agreement

4.1Declaration

Subject to clause 4.2, and consistent with section 29 of the EPBC Act, it is declared that an action does not require approval under Part 9 of the EPBC Act for the purposes of the provisions of Part 3 of the EPBC Act specified in Item 2 of Schedule 1 to this Agreement if the action is in the class of actions specified in Item 4 of Schedule 1 to this Agreement.

4.2Scope

(a)Clause 4.1 applies to an action which occurs within Queensland.

(b)Where an action forms part of a larger action that does not occur wholly within Queensland, Queenslandwill consult and use its best endeavours to coordinate its assessment and approval processes with other relevant jurisdictions.

(c)For the purposes of section 49 of the EPBC Act, the provisions of this Agreement:

(i)have effect in relation to an action located wholly or partly in the Great Barrier Reef Marine Park (unless the action is also an action described in clause 4.2(c)(ii)); and

(ii)do not have effect in relation to an action:

(A)located wholly or partlyin a Commonwealth area; or

(B)taken by the Commonwealth or a Commonwealth agency.

Note: The provisions of this Agreement do apply in relation to an action taken outside a Commonwealth area which is likely to have a significant impact on a Commonwealth area.

(d)This Agreement does not apply to an action if:

(i)before the Commencement Date, the taking of that action was:

(A) approved, taken to have been approved, or refused under Part 9 of the EPBC Act; or

(B) determined to be clearly unacceptable under Division 1A of Part 7 of the EPBC Act; and

Note: Section 146D of the EPBC Act provides that an approval under section 146B of the EPBC Act is taken to be an approval under Part 9 of the EPBC Act.

(ii)that approval, refusal or determination that theaction is clearly unacceptable, remains in force.

5.Assessment

5.1Identification of impacts on Matters of NES

(a)If an action may require approval under an Accredited Process, Queensland will, as early as possible, notify the proponent of the action that there may be no requirement for an approval of the action under Part 9 of the EPBC Act.

(b)If an action may not require approval under an Accredited Process, Queensland will use its best endeavours to notify the proponent of the action of their obligation under the EPBC Act to refer an action which is likely to have a significant impact on a Matter of NES to the Commonwealth Minister.

(c)If an action can be approved under an Accredited Process, Queensland will require the proponent of the action to identify the likely impacts on each Matter of NES.

Note 1: The notification under clauses 5.1(a) and (b) may be undertaken in accordance with standard guidelines, which outline the obligation of proponents to consider the application of the EPBC Act where an action is likely to have a significant impact on a Matter of NES, and, if that Act may apply, to obtain an approval under an Accredited Process or, if such a process is not likely to or will not apply, to refer the proposal for a decision under section 75 of the EPBC Act.

Note 2: The requirement to identify impacts on Matters of NES in an application referred to in clause 5.1(c) may be included in guidelines or standard templates for applications.

5.2Undertaking to assess impacts on Matters of NES

Queensland undertakes to ensure that there will be an adequate assessment of the impacts that actions that may be approved in accordance with an Accredited Process:

(a)have or will have; or

(b)are likely to have,

on each Matter of NES covered by this Agreement.

Note: ‘Impacts’ is defined in section 527E of the EPBCAct.

5.3General approach to assessment

Where a proposed action may be approved in accordance with an Accredited Process:

(a)Queensland will, in determining the assessment requirements for the proposed action, ensure there is sufficient Information on the relevant impacts of the proposed action to allow the decisionmaker to make an informed decision whether or not to approve the proposed action and, if so, under what conditions. The extent of the assessment will be proportionate to the level of likely environmental risk; and

Note: In deciding the assessment requirements for the proposed action and the level of likely environmental risk, the relevant decision maker may consider whether the proponent of the proposed action is a suitable person to be granted an approval, including having regard to the person’s history in relation to environmental matters.

(b)Queensland will ensure that:

(i)all relevant impacts of the action on Matters of NES covered by this Agreement are identified separately in the assessment process. This means that impacts must be explicitly assessed for each Matter of NES that is likely to be significantly impacted upon by the action;

(ii)in relation to listed threatened species, listed threatened ecological communities and listed migratory species – impacts are assessed with regard to the full extent of the geographic range of the Matters of NES; and

Note: For example, clause 5.3(b)(ii) would require an assessment of impacts with regard to the national extent of a listed threatened species’ habitat.

(iii)the Information and opinion on which the assessment is based is included, or its source identified, in the Assessment Report.

5.4Seeking expert advice

(a)Queensland will seek, and take into account, the expert advice of the Great Barrier Reef Marine Park Authority on a proposed action which is within, or likely to impact on, the Great Barrier Reef Marine Park (a Matter of NES). Arrangements for the provision of advice will be set out in a Memorandum of Understanding between Queensland and the Great Barrier Reef Marine Park Authority.

(b)Queensland may seek, and take into account, the expert advice of the Supervising Scientist on a proposed action that is a nuclear action. Arrangements for the provision of advice will be set out in the Administrative Arrangements.

(c)Queensland may seek advice from the Commonwealth on Australia’s international obligations as these relate to Matters of NES. The advice will be sought through the Senior Officers’ Committee with details to be set out in the Administrative Arrangements.

(d)In relation to coal seam gas and large coal mining developments Queensland will:

(i)refer coal seam gas or large coal mining developments that are likely to have a significant impact on water resources, including any impacts of associated salt production and/or salinity, to the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development for advice; and

(ii)ensure any relevant advice from the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development is taken into account by the decision maker in a transparent manner.

(e)Queensland may seek advice from other expert advisory bodies established under the EPBC Act, through the Senior Officers Committee, with details to be set out in the Administrative Arrangements.

5.5Statutory undertaking

Where an action:

(a)is an action taken or proposed to be taken in Queensland;

(b)is an action covered by the declaration in clause 4.1; and

(c)is an action:

(i)taken or proposed to be taken by a constitutional corporation; or

(ii)taken by a person for the purposes of trade or commerce between Australia and another country, between two States, between a State and a Territory, or between two Territories; or

(iii)whose regulation is appropriate and adapted to give effect to Australia's obligations under an agreement with one or more other countries,

Queensland undertakes to ensure that the impacts that the action has, will have, or is likely to have on a thing which is not a matter protected by a provision of Part 3 of the EPBC Act, are assessed to the greatest extent practicable.The parties agree that ‘greatest extent practicable’ is satisfied where the assessment has been undertaken in a manner of assessment consistent with the relevantAccredited Process.

6.Decisions on approval

6.1Avoid, mitigate, offset hierarchy

(a)If the decisionmaker considers, on the basis of the Information in the Application, that it is clear that a proposed action would have unacceptable or unsustainable impacts on a Matter of NES, the decision maker must not approve the action.

(b)To avoid unacceptable or unsustainable impacts on Matters of NES, Queensland will apply the ‘avoid, mitigate, offset’ hierarchy of principles for guiding the assessment and approval of a proposed action under an Accredited Process.

(c)For the purposes of clause 6.1(b) of this Agreement, the ‘avoid, mitigate, offset’ hierarchy of principles are the following, in order, from clause 6.1(c)(i) to (iii):

(i)significant impacts on Matters of NES should be avoided where practicable;

Note: For example, changing the route of a proposed access road to avoid impacts on an endangered ecological community may comprise an avoidance measure.

(ii)after all reasonable avoidance measures have been put in place, mitigation of any residual significant impacts on Matters of NES must be undertaken where practicable; then

Note: For example, putting in place measures to reduce sediment runoff from a development site that may otherwise affect a threatened fish species may comprise a mitigation measure.

(iii)once all reasonable avoidance and mitigation measures have been applied, or reasons are made public as to why avoidance or mitigation of residual significant impacts on Matters of NES is not reasonably achievable, Queensland will consider offsets in accordance with clause 6.2 for those impacts.

(d)If a residual significant impact cannot be adequately addressed by applying the hierarchy of principles in clauses 6.1(c)(i) to (iii), including the elements set out in clause 6.2, Queensland will apply the escalation process in clause 16.

6.2Offsets

(a)For the purposes of clause 6.1(c)(iii), Queenslandwill:

(i)apply the EPBC Act Environmental Offsets Policy (including application of the offset assessment guide where it applies); or