The South Australian and Australian Governments have agreed to give a high priority to measures designed to reduce environmental red-tape through the creation of a 'one-stop-shop' for State and Commonwealth environmental assessments and approvals.
On 24 October 2014, an assessment bilateral agreement under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) between the South Australian and Australian Governments came into operation. The agreement provides for a single environmental assessment process under the Australian Government’s ‘One-Stop-Shop’ to meet the regulatory requirements of both South Australia and the Commonwealth. It covers environmental assessment of proposed developments in South Australia that could impact on a matter of National Environmental Significance (NES). This agreement accredits South Australian environmental assessment processes under the Mining Act 1971 and the Development Act 1993 only where those processes meet the strict environmental protection requirements of the EPBC Act. This will reduce the regulatory burden on business by streamlining the environmental assessment process while maintaining high environmental standards.
In the case of the Mining Act, the accredited processes are mining lease proposals, retention leases, miscellaneous purpose licences and exploration programs for environment protection and rehabilitation. Under the Development Act, the “Major Development” assessment process under section 46 is accredited.
Officers from the Department of State Development have worked in collaboration with the Department of Premier and Cabinet, the Department of Planning, Transport and Infrastructure, the Department of Environment, Water and Natural Resources, as well as the Australian Government Department of the Environment to establish the agreement and ensure that it provides for streamlined, transparent and aligned assessment processes and approval conditions, meeting both State and Commonwealth environmental requirements. Under this agreement, the Australian Government still determines if a proposed action is a “controlled action” and will retain the power to approve or refuse actions, and to attach conditions to approved actions.
A draft approvals bilateral agreement has also been prepared by the SA and Australian Governments, and was released for public consultation in December 2014. The approvals bilateral agreement will accredit approval processes under the Mining Act and Petroleum and Geothermal Energy Act 2000 under national environmental law, where EPBC Act standards are met. As with the assessment bilateral agreement, the standards and protections in place under the EPBC Act remain in place, albeit through state based legislation.
The draft agreement proposes to accredit the following state processes:
-Authorisation of an action by the grant of an exploration licence, i.e. PEPR;
-Authorisation of an action by the grant of a mining lease;
-Authorisation of an action by the grant of a retention lease;
-Authorisation of an action by the grant of a miscellaneous purposes licence.
*Petroleum and Geothermal Energy Act
-Under the Petroleum and Geothermal Energy Act, Statements of Environmental Objectives for regulated activities that are deemed to be medium and high impact activities will be accredited processes for the purposes of this agreement.
Public consultation on the draft approval bilateral agreement closed on 2 February 2015. Submissions are currently being reviewed with a view to finalising the agreement, and submitting to relevant State and Federal Ministers for endorsement, as well as allowing for a disallowance period in the Senate.
To ensure that environmental standards are not compromised by this accreditation process, a number of measures have been taken. The Australian Government has undertaken a rigorous due diligence exercise to ensure that relevant South Australian environmental impact processes fulfil the requirements of the EPBC Act. This commitment is exemplified by the Commonwealth government’s decision not to accredit SA Development Act major approval processes due to the privative clause contained in section 48E of that Act.
Further, the agreement contains a number of mechanisms to ensure that perceived conflicts of interest do not arise and that environmental standards are not compromised. For example, the agreement does not apply for actions that are determined to be clearly unacceptable under the EPBC Act. The agreement also contains dispute resolution provisions that rely initially on negotiation and mediation between the State and Commonwealth, but which ultimately provide for a matter to be “called in” by the Federal Minister in the event of a decision being considered that is likely to result in serious or irreversible damage to a matter of NES.