Under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), the Commonwealth Environment Minister can make a written agreement with a state or territory government called a bilateral agreement.
A bilateral agreement can strengthen co-operation and reduce duplication in processes between governments, but only if environmental outcomes can be met through that agreement.
When an agreement is made, state or territory processes can be used to assess environmental impacts and authorise actions that would ordinarily be assessed and approved by the Commonwealth under the EPBC Act. There are two types of agreements that can be made:
- An assessment bilateral agreement allows a state or territory to conduct a single environmental assessment process. At the completion of the assessment the state provides a report to the Australian Government assessing the likely impacts of the project on matters of national environmental significance. Two approval decisions and two sets of conditions (if appropriate) are required before the project goes ahead.
- An approval bilateral agreement allows a state or territory to assess the likely impacts of a project on the environment and make a decision on approval, accounting for both state matters and matters of national environmental significance. Only one approval decision and one set of conditions (if appropriate) is required before the project goes ahead.
To make one of these bilateral agreements, the minister must follow processes under the EPBC Act to make sure nationally significant (protected) animals, plants, habitats or places will be protected under the agreement.
Assessment bilateral agreements
Assessment bilateral agreements are already in place with all states and territories. They were negotiated in 2014 and 2015.
They allow states and territories to assess environmental impacts of actions that would ordinarily be assessed by the Commonwealth under the EPBC Act.
After the assessment, states and territories and the Australian Government decide to approve projects. Two approval decisions and two sets of conditions (if appropriate) are required before the project goes ahead.
The assessment bilateral agreement for each state and territory are available online.
Approval bilateral agreements
It has always been possible to make approval bilateral agreements under the EPBC Act. We’re now setting them up with each willing state and territory. This means states and territories can approve some types of projects without a separate approval under the EPBC Act.
The National Cabinet agreed to move to single-touch environmental approvals that are supported by national environmental standards to ensure States and Territories apply the same rules as the Commonwealth when approving projects.
This aligns with the Independent review of the Environment Protection and Biodiversity Conservation Act 1999 (Samuel Review) recommending that we should avoid overlaps when decisions are being made by different parties.
The approval bilateral agreements we are putting in place will list the types of projects that a state or territory can approve and describe how a state or territory:
- will assess the impacts of a project on Commonwealth protected matters
- may approve the project based on both state matters and Commonwealth protected matters
- will consider and report against the National Environmental Standards
- ensure projects comply with any conditions of approval.
The minister will maintain oversight and assurance and can modify, suspend or cancel an agreement.
Approval bilateral agreements will include a list of state or territory processes that have been accredited. Proponents will be able to have their projects approved through the accredited processes instead of the EPBC Act.
Amendments to the EPBC Act are before the Parliament to support the operation of the approval bilateral agreements.
Process for making approval bilateral agreements
Approval bilateral agreements are made through a process that includes meeting legal requirements or ‘tests’ to make sure the agreement can:
- meet the objects of the EPBC Act and Australia’s international obligations
- prevent unacceptable or unsustainable impacts on nationally significant (protected) animals, plants, habitats or places. We call these things 'protected matters'.
The minister must first publish a notice of intention to develop a bilateral agreement with the relevant state or territory government.
The Australian Government can then start working with the state or territory to develop the terms of the agreement. The draft terms will describe what each party will do under the new arrangement. The terms of the agreement must meet the legal tests in the EPBC Act.
The state or territory then puts forward the authorisation processes that they want to use under the agreement terms. The processes put forward can include assessment and approval processes and are tested against accreditation criteria based on the EPBC Act. The processes will only be added to the draft agreement if they can meet the criteria.
When complete, the draft terms of the agreement will be published for 28 days consultation. Anyone can comment.
Before signing an agreement, the minister must take into account comments received during consultation and consider the terms of the agreement to make sure it meets the tests under the EPBC Act. The state or territory must sign the agreement too.
When both parties have signed the bilateral agreement, it will be published. The Environment minister will also publish their reasons for entering into the agreement.
A signed agreement does not mean that the state or territory government can immediately authorise projects. This is because there are more steps to take before the signed agreement becomes operational.
The authorisation processes that the approval bilateral agreement covers must be tabled in both houses of the Australian Parliament. Senators and members can raise any objections. If the authorisation processes aren't ‘disallowed’, the Environment minister may formally accredit them.
The minister will use the accreditation criteria to consider if the tests set by the EPBC Act are met before accrediting an authorisation process.
Once agreed, the process is called a bilaterally accredited authorisation process and the approval bilateral agreement is operational.
The process can then be applied to projects in place of the equivalent EPBC Act assessment and approval processes.
Status of bilateral agreements with States and Territories
You can see the status of bilateral agreements with each state and territory below: