Approval Bilateral Agreements Under the EPBC Act the Tas Agreement Explained

Approval Bilateral Agreements under the EPBC Act – the draft TasmanianAgreement explained

Introduction

The Australian Government is committed to delivering a One-Stop Shop for environmental approvals. This will simplify the approvals process, ensuring that onlyone environmental approval, which covers both Commonwealth and staterequirements, is needed for an action. Many proposalscurrently require approval at both the Commonwealth and state level.

A Memorandum of Understanding has been signed with Tasmania, setting out governments’ commitment to the process, timing for implementation of the policy, and key principles. One of the objectives of the process is to develop a bilateral agreement, for accrediting Tasmanian authorisationprocesses,under the Environment Protection and Biodiversity Conservation Act 1999(Cth) (‘EPBC Act’).

This document explains how the draft approval bilateral agreement for Tasmaniais intended to operate and outlines the key components of the draft agreement.

Commonwealth environmental regulation in Australia

The EPBC Act is the Commonwealth’s central piece of environmental legislation. It provides a legal framework to protect and manage nationally and internationally important flora, fauna, ecological communities, Ramsar wetlands and heritage areas. Under this legislation, the Commonwealth is responsible for assessing and approving actions, such as mines and infrastructure developments, which may impact on matters of national environmental significance.

The Commonwealth’s responsibilities can overlap with separate state approval processes. Proponents often need to engage with two governments to obtain environmental approval to undertake an activity. This overlap can be reduced if the Commonwealth enters into an approval bilateral agreementto enable a state environmental approval to cover both Commonwealth and state requirements.

Section 45(2) of the EPBC Act enables the Minister for the Environment (on behalf of the Commonwealth) to enter into a bilateral agreementwitha state or territory that provides for one or more of the following:

1. protecting the environment;
2. promoting the conservation and ecologically sustainable use of natural resources;
3. ensuring an efficient, timely and effective process for environmental assessment and approval of actions; and
4. minimising duplication in the environmental assessment and approval process through Commonwealth accreditation of the assessment or approval processes of the state or territory (or vice versa).

An approval bilateralagreement allows the state or territory to assess and approve (or decide to not approve) proposed actions that are likely to have a significant impact on a matter of national environmental significance. In the absence of such an agreement, these proposals would require a separate assessment and decision by the Commonwealth Minister under the EPBC Act.

For actions that are within the scope of an approval bilateral agreement, that is, actions that have been assessed and approved in accordance with an ‘accredited authorisation process’, no additional assessment or approval of the action is required under the EPBC Act.

An accredited authorisation process is a state or territory environmental assessment and approval process which has been assessed by the Department of the Environment as meeting the requirements of the EPBCAct, and accredited by the Commonwealth Environment Minister for the purposes of an approval bilateral agreement (

The agreement for Tasmaniacomprises the following components:

• Body of the agreement – outlines how the potential impacts of actions on matters of national environmental significance are to be assessed and addressed under accredited Tasmanianauthorisation processes,as set out in the laws of Tasmania, and includes provisions to help ensure that unsustainable or unacceptable impacts on matters of national environmental significance are avoided;
• Schedule 1 – outlines whatactions inTasmaniaare covered by the agreement and would not require separate approval under the EPBC Act, and the Tasmanian accredited authorisation processes by which those actions will be assessed and approved (or not approved); and
• Schedules 2 to 4 – outline further commitments for cooperation between the Australian Government Department of the Environment and Tasmanian Governmentto support the objectives of the agreement and the One-Stop Shop policy.

Additional details regarding the key components of the agreement aredescribed below.

Introduction: Parties, Background and Objects

The introductory sections provide context for the operation of the agreement. These clauses set out the parties to the agreement, and relevant context for Commonwealth and Tasmanian roles and responsibilities, and the overall purpose of the agreement.

1. Definitions and interpretation

This clause includes definitions, and the general principles of interpretation that apply to the agreement.

2. Nature of this agreement

This clause meets the requirement in section 45(2)(b) of the EPBC Act that a bilateral agreement must be ‘expressed to be a bilateral agreement’. Additionally, this clauseclarifies that it is not intended to create any legal obligations between the parties other than as provided in the EPBC Act, in particular, contractual obligations. The EPBC Act provides that an approval bilateral agreement has a legal effect – which is that proposed actions will not need to be approved under the EPBC Act if they are approved under an accredited Tasmanian authorisation process.

3. Agreementperiod

This clause provides for the agreement to commence when signed by both parties and to continue unless the agreement is cancelled in accordance with the EPBC Act or rescinded or revoked by further agreement between the parties.

While it operates, the agreement must also be subject to periodic review, under both section65 of the EPBC Act and clause 12 of the agreement.

4. Effect of this agreement

This clause includes a declaration that actions in the class of actions specified in Schedule 1 do not require approval under the EPBC Act and identifies the matters of national environmental significance to which the declaration applies.This declaration meets the requirements of section 46(1) of the EPBC Act. The clause also identifies the actions that are included or excluded from the scope of the agreement, including:

• the action must occur withinTasmania;
• the agreement does not apply to actions that occur in a Commonwealth area, or actions that are undertaken by the Commonwealth or a Commonwealth agency; and
• theagreement does not apply to actions that have already been approved (or taken to be approved), refused, or determined to be clearly unacceptable by the Commonwealth Minister.

Actions that are being assessed under the EPBC Act when the agreement commences will not be covered by the agreement, unless the proponent of those actions decides to withdraw the action from the EPBC Actprocess and have it assessed and approved under an accredited Tasmanianprocess.

5. Assessment

This clause is included to ensure that an adequate assessment of an action is undertaken to meet EPBC Act standards ( This includes ensuring that:

• proponents have notice of whether an accredited authorisation process would apply and ensuring that proponents identify the likely impacts on each matter of national environmental significance;
• there is sufficient information on the impacts of an action for the decision-maker to make an informed decision whether or not to approve an action and if approved, under what conditions;
• the level of assessment is proportionate to the level of environmental risk; and
• the Assessment Report includes (or identifies the source of) the information and opinion on which an assessment is based.

This clause also includes requirements that Tasmania seek and take into account expert advice from the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development in relation to coal seam gas or large coal mining developments that are likely to have a significant impact on a water resource.

The agreement also provides that Tasmania may seek advice from the Commonwealth on Australia’s international obligations as these relate to matters of national environmental significance from expert advisory bodies established under the EPBC Act, or from the Department of the Environment more generally.

The agreement also gives effect to section 48A(2) of the EPBC Act in providing an undertaking that Tasmaniawill assess, to the greatest extent practicable, the environmental impacts of an action on things other than matters of national environmental significance.

6. Decisions on approval

The intent of this clause is to ensure that decision-making in relation to actions that are likely to have a significant impact on a matter of national environmental significance is robust and meets EPBC Act requirements, and unacceptable or unsustainable impacts on matters of national environmental significance are avoided. It outlines the key requirements for making an approval decision under the agreement.

The ‘avoid, mitigate, offset’ hierarchy of principles is defined in accordance with the definitions in the EPBC Act Environmental Offsets Policy (2012), ( 6 includes a commitment by Tasmania to apply the ‘avoid, mitigate, offset’ hierarchy to guide the assessment and approval of actions that relate to matters of national environmental significance. For those matters, clause 6 also:

• includes details of the approach that will be taken to the application of environmental offsets;
• ensures approvals are not inconsistent with relevant plans;
• ensures the consideration of relevant Australian Government policies and guidelines; and
• includes the requirement for approval documentation to explicitly identify any relevant conditions that relate to matters of national environmental significance.

Clause 6allows for the continued application of the Tasmanian Government’s ‘General Offset Principles’ in circumstances where all reasonable avoidance and mitigation measures have been applied.The clause also notes that offsets must continue to achieve equivalent or better environmental outcomes to that which would have resulted from the application of the EPBC Act Environmental Offsets Policy and Offsets Assessment Guide. Where a residual significant impact cannot be adequately addressed by applying the Offsets Assessment Guide, Tasmaniawill be required to seek agreement from the Commonwealth on an alternative offset. This approach is consistent with the Department’sStatement of Environmental and Assurance Outcomes for the One-Stop Shop (

Under an accredited approval process, Tasmaniandecision-makers must not make approval decisions that are inconsistent with certain EPBC Act plans or policies (such as recovery plans and threat abatement plans), Australia’s obligations under relevant international treaties and, for World Heritage, National Heritage and Ramsarwetlands andthe relevant management principles.

Consistent with the Memorandum of Understanding, Tasmanian decision-makers will take into account Australian Government policies relating to matters of national environmental significance when assessing anddeciding whether to approve actions.

Cooperative arrangements for the ongoing development of plans and policies are set out in Schedule3 of the agreement.

Any approval conditions relating to matters of national environmental significance must be explicitly identified in the approval documentation.

7. Transparency and access to information

The intent of clause 7 is to ensure that there is transparency and access to information in the assessment and approval processes, noting the specific considerations of Indigenous peoples and particular needs groups.

Assessments and approval decisions must recognise the role and interests of Indigenous peoples in promoting conservation and ecologically sustainable use of natural resources and promote the cooperative use of Indigenous peoples’ knowledge of biodiversity and Indigenous heritage (reflecting the objects of the EPBC Act (see sections 3(1)(f) and 3(1)(g) respectively).

Tasmania will advise proponents to consider the views of Indigenous peoples as an important source of information on the value of Indigenous cultural heritage to which a particular matter of national environmental significance relates. This requirement reflects one aspect of the National Heritage management principles (see clause 6 of Schedule 5B to the EPBC Regulations).Tasmania will advise proponents to take all reasonable steps to obtain the views of Indigenous peoples in relation to a proposed action that is likely to have a significant impact on any matter of national environmental significance that relates to Indigenous cultural heritage.

Tasmaniais required to consider and applyguidelines published by the Commonwealth in relation to consultation with Indigenous peoples. The Commonwealth proposes to consult with Tasmania before amending or adopting guidelines in relation to Indigenous consultation. Transparent assessment and decision-making processes are an important mechanism for ensuring that the objects of the agreement and the EPBC Act, and the ongoing responsibilities of the Commonwealth, continue to be met. Tasmania is required to publish information relating to proposed actions, including approval decisions, assessment reports, and guidance material on the Internet.

To ensure that matters of national environmental significance are considered in their national context, decision-makers must accept comments or submissions on proposed actions from anyone in Australia, if those comments or submissions are made in accordance with the requirements of the accredited authorisation process.

Tasmania willendeavour to make special arrangements to ensure groups with particular communication needs have an adequate opportunity to access assessment and approval documentation and to provide comment.

8. Cooperation

The intent of this clause is to ensure cooperation and communication between the parties in the application of this agreement.

Where a Commonwealth agency becomes aware of a proposed action that may require assessment and approval under an accredited process, it will notify Tasmania.

This clause, in conjunction with Schedule 2, supports the goal of improving environmental outcomes by ensuring adequate information is collected and available to both the public and government. The provision of this information will underpin the implementation of the Australian Government Department of the Environment’s Statement of Environmental and Assurance Outcomes for the One-Stop Shop.

The partieswill cooperate in the development, maintenance, review and implementation of guidance documents relating to matters of national environmental significance and the operation of this agreement and commit to making information generally more accessible to users. Schedule 3 provides further information in relation to the cooperation between the parties with regard to guidance documents.

9. Heritage management plans

This clause provides for the parties to work together cooperatively to develop and implement heritage management plans to promote certainty and predictability for activities that may be proposed in a National Heritage placeprovides flexibility for suitable alternatives to heritage management plans to be agreed upon between the parties. Examples of suitable alternatives include strategic approaches or guidelines relating to particular areas or activities. This recognises that different arrangements may be appropriate for different heritage places depending on, for example, land tenure.

10. Administrative Arrangements

The intent of this clause is to provide for the joint development of Administrative Arrangements to support the operation of the agreement.

The establishment of a senior officers’ committee will be an important mechanism to ensure that parties have a shared understanding of their responsibilities and that the Australian Government Department of the Environmenthas visibility of pending decisions. The Committee will provide a forum for ongoing oversight and continuous improvement of the implementation of the agreement. The group willbe responsiblefor building a strong culture of cooperation between the Australian and Tasmanian governments. This approach is consistent with the Department’sStatement of Environmental and Assurance Outcomes for the One-Stop Shop.

This clause also establishes a role for the senior officers’ committee to evaluate the operation of the agreement. Thesenior officers’ committee may systemically evaluate the approach to assessment and approval of actions by Tasmania in relation to the operation of the agreement.These evaluations would occur separately to annual reporting requirements. The reports generated by such evaluations may provide part of the evidentiary basis for annual reports and five yearly reviews, and assist in providing public confidence that the system is functioning effectively.

11. Reports

The intent of this clause is to enable adequate reporting to meet the Australian Government’s international obligations and the Australian Government Department of the Environment’s annual reporting obligations under the EPBCAct.This approach is consistent with the Department’sStatement of Environmental and Assurance Outcomes for the One-Stop Shop and section48(1)(e)(ii) of the EPBC Act. Where possible and efficient to do so, the Departmentwill draw on information made publicly available by Tasmania.

12. Review

The intent of this clause is to provide for reviews of the operation of the agreement. Either of the reviews outlined in the clause may include studies, evaluations and other activities intended to analyse the success of the agreement in achieving its objectives.

A joint review is to be carried out at least every five years, in accordance with section 65 of the EPBC Act.

A transitional review of the operation of the agreement is to be undertaken within three years after the commencement of the agreement to ensure the agreement is being effectively implemented and outcomes are being met.

13. Sharing information – ongoing EPBC matters

The intent of this clause is to ensure sharing of information relating to matters which remain relevant to the Australian Government’s ongoing compliance obligations under the EPBC Act.

The Australian Governmentwill remain responsible for compliance and enforcement for actions that are in breach of the EPBC Act, but not for those actions that are approved under an accredited process. The Australian Government will also remain responsible for actions that are already approved by the Commonwealth Environment Minister under the EPBC Act before the agreement commences.

14. Audits

This clause provides for an unscheduled audit, review or evaluation if there has been, or there is likely to be, an adverse systemic outcome relating to the Agreement. These activities may be initiated by either party, and may be completed by an independent auditor or reviewer.

This clause provides that the Commonwealth Auditor-General may audit the operations of the Commonwealth public sector in relation to the agreement (as required by section 48A(4) of the EPBC Act). Additionally, the Tasmanian Auditor-General may audit the operations of the Tasmanian public sector in relation to the Agreement.

15. Rectification

The intent of this clause is to provide clarity that if Tasmania does not follow an accredited process in relation to an action Tasmania would be responsible for addressing any issues that arise out of the process to ensure that an accredited process can apply.