EPBC Act

Publications and resources

Report on the operation of the Environment Protection and Biodiversity Conservation Act 1999

Covering the period 16 July 2000 to 30 June 2001
Environment Australia, 2001
ISBN 0 6425 4770 X

1. Protecting the environment


1.4 Providing a more efficient, timely and effective assessment and approval process with greater certainty

The Department has put in place administrative arrangements to ensure timely and efficient processing of referrals, assessments and approvals. These are being refined as experience is gained with the operation of the Act. Many decisions are being made well within the maximum times provided for in the Act.

Figure 3: Referral for Approval Process Stream

Figure 3: Referral for Approval Process Stream

A total of 294 actions were referred to the Commonwealth in 2000-01 for decision on whether approval was required under the Act. The Minister decided that 73 of these were controlled actions. Eight actions were approved during the year.

The status as of 30 June 2001 of all actions referred for approval is shown in Figure 3. Further statistics on referral screening, assessment and approval are in Appendix 1.

Transitional arrangements

At the time the Act came into effect, there were 83 projects which had been designated under the Environment Protection (Impact of Proposals) Act 1974 (EP(IP)) but which had yet to complete assessment. The Environmental Reform (Consequential Provisions) Act 1999 made provision, under certain circumstances, for the EP(IP) assessment regime to continue for active projects.

Of the 83 active projects, 17 had reached the stage before the Act came into effect where either an environmental impact statement, a public environment report or an inquiry had been directed. Two Regional Forest Agreements were also being assessed under the EP(IP) Act.

The remaining 64 projects had not reached the stage where the assessment approach had been determined. These projects were eligible to continue with the EP(IP) assessment process only by agreement with the Minister. The Minister offered transitional agreements to all project proponents. While most proponents accepted the offer, several chose to transfer to the new regime. Others have not responded to the Minister's offer. Proponents who chose to remain in the EP(IP) process have until 16 July 2002 to complete assessment of their projects.

Screening of referred actions

Referrals have come from all jurisdictions in Australia with most coming from Queensland, New South Wales and Victoria. They have also come from a wide range of industry sectors, in particular the urban and commercial development, exploration (mineral, oil, gas), land transport, tourism, recreation and conservation management and energy generation and supply activity categories. Several aquaculture proposals were received towards the end of the financial year (ten received in total). There was a similar recent increase in the number of mining related referrals (36 received in total).

Eighty-two per cent of decisions on whether an action requires approval were made within the statutory timeframes of 20 business days from the referral being received, or 10 business days where the person proposing to take the action stated in the referral that they thought the action was a controlled action. Where the statutory timeframe was not met, this was due to the need to seek legal advice on issues related to the decision, and/or the need to seek further advice on complex or difficult proposals, and/or delays caused by travel or absence of decision makers. Late decisions were, on average, less than three business days late. This quick response contributed to streamlined business decision making.

The 20-day period includes a 10-day opportunity for public comment. This has been facilitated by publishing referrals for comment on the internet. Comments were received on 50 referrals.

Sub-section 77(4) of the Act allows a person taking an action that the Minister has decided is a controlled action to request reasons for the decision. Eleven such requests were handled during 2000-01. The timeframe for meeting these requests was often not met, due, in some cases, to the need to seek legal advice, and the need to meet other statutory timeframes associated with referrals. Systems are being reviewed within the Department to improve performance in this regard.

The Minister decided for 27 actions that no approval was necessary because the person responsible indicated that the action would be undertaken in a particular manner that would ensure there was no adverse impact on a matter protected by the Act. This decision was in accordance with Sub-section 77(3) of the Act. An example is where the timing of actions such as seismic exploration for oil and gas takes into account whale migration and calving considerations. Projects not requiring approval because they would be undertaken in a particular manner included the Thylacine A Petroleum Exploration Well in Commonwealth waters (Woodside Energy Ltd); aquaculture Facility, Queensland (Bluefin Seafoods Pty Ltd); Echo Point Walking Track Upgrade, Three Sisters, Katoomba, New South Wales (National Parks and Wildlife Service; and Bruthen - Nowa, Nowa Road Realignment, Victoria (VicRoads).

The Minister also exempted two actions from Part 3 and Chapter 4 of the Act under Section 158. The statutory timeframe for deciding on one of these exemptions was exceeded by five business days as the Minister was not available.

The Department has provided referral forms and decision support tools via the internet to assist proponents in deciding whether their action may need to be referred. These tools include an online interview, administrative guidelines on significance and an interactive map with information on matters protected by the Act. The tools also assist people wishing to comment on referrals. The online interview and interactive map had an average public access rate of over 4600 per month while the online referral form had an average public access rate of over 150 per month. Further development of these tools, supporting data and information will improve the delivery of online referral facilities in future.

Assessment of controlled actions

The Act provides a range of assessment approaches to ensure that environmental assessment reflects the nature of the activity, the adequacy of information already available, the degree of public interest and the nature and scale of the likely impacts.

Assessment on preliminary documentation is likely to be appropriate when:

Assessment by public environment report is likely to be appropriate when:

Assessment by environmental impact statement is likely to be appropriate when:

Assessment by public inquiry is likely to be appropriate when:

Assessment by accredited process is where a State or Territory will manage the assessment, or the Commonwealth will do so under other legislation. This assessment approach allows case-by-case accreditation of State, Territory or Commonwealth assessment processes where bilateral agreements and declarations do not apply. The Commonwealth Environment Minister must be satisfied that certain standards will be met, that the process will ensure the relevant impacts of the action will be fully addressed and that he or she will receive an adequate report on those impacts.

Two of the 73 controlled actions are being assessed under a bilateral agreement. Of the remaining 71 controlled actions, by 30 June 2001 a decision on the assessment approach to be taken under Part 8 of the Act had been made for 39 actions (see Figure 4).

Assessment by accredited process was decided upon for seven projects including the Pacific Hydro Windfarm, Victoria, and the Aldoga Aluminium Smelter, Gladstone, Queensland. Projects assessed on preliminary documentation include the Steritech Gamma Sterilisation and Decontamination Plant, Narangba, Queensland, and the Stockton Rifle Range sand mining project, New South Wales. Three projects were being assessed by public environmental report while six were being assessed at the level of environmental impact statement. A full list of projects undergoing assessment through a public environment report or environmental impact statement is in Appendix 1.

Figure 4: Assessment approach decisions

Figure 4: Assessment approach decisions

While most actions were assessed on preliminary documentation, many had already been assessed at the level of an environmental impact statement or public environmental report through State or Territory processes. These documents were able to be used as preliminary documentation, allowing the Minister to make an informed decision without further Commonwealth process. Had these documents not been available, a higher level of Commonwealth assessment might have applied.

Eighty-two per cent of the 39 decisions on assessment approach were made within the statutory timeframes of 20 or 30 business days of deciding that the action is a controlled action, or after the proponent has provided preliminary information, whichever is the later. This rapid response by the Minister allows proponents to quickly commence the required assessment approach. Where the statutory timeframe was not met, this was due to the need to seek legal advice on issues related to the decision, and/or the need to seek further advice on complex or difficult proposals, and/or delays caused by travel movements or absence of decision makers.

Nine actions being assessed require the proponent to prepare a public environmental report or environmental impact statement. These major assessments represent a significant workload for the Department and the proponent. The Department estimates on past experience that preparation of these documents by the proponent may take six to nine months.

The Act requires the Minister to prepare written guidelines for the content of a public environmental report or environmental impact statement within a 20-day statutory timeframe. Six guidelines were prepared during 2000-01 and only one was outside the timeframe. In this case, two extensions of time were agreed between the proponent and the Department - the first, over the New Year period, at the Department's request; the second, at the proponent's request, to allow the proponent more time to consider the draft guidelines.

The Department completed 13 assessment reports following preparation of relevant documentation by the proponent. All but one of these reports was completed within the 20-day statutory timeframe. One report was one day late due to delays in receiving expert advice. This again demonstrates that proponents have been able to rely on a predictable and timely assessment and approval process under the Act.

Approval of controlled actions

Eight controlled actions were approved, and a further five were awaiting a decision on approval as of 30 June 2001. The low number of approvals is because of the short time for which the Act has been in operation. Approval has not been refused for any action. Actions approved included the Dalrymple Bay Coal Terminal Expansion Stages 6 and 7 (Ports Corporation of Queensland) in Queensland, Rutile and Zircon Mining on Stockton Rifle Range (Mineral Deposits (Operations) Pty Ltd) in New South Wales, the Echo-Yodel Production Wells (Woodside Energy Limited) in Commonwealth marine waters, the Sorell Causeway Bridge (Department of Infrastructure, Energy and Resources) in Tasmania, and the Constructed Wetland in Macleod Morass (East Gippsland Region Water Authority) in Victoria.

Six approval decisions were made within the 30-day statutory timeframe. Prolonged consultation with proponents, undertaken to ensure conditions were achievable, resulted in two approval decisions being made outside the 30-day timeframe. These delays did not hinder either proponent in the implementation of their proposed action. Seven of the eight approvals granted were conditional. The conditions attached to approvals were designed to safeguard the matters protected by Part 3 of the Act. Some examples of conditions are requirements to: use turtle exclusion devices during dredging; avoid activities at certain ecologically critical times; take specific measures to control turbidity; relocate populations of key species; and prepare detailed plans for the Minister's approval to reduce impacts of operations on various aspects of the environment.

The Minister must seek and take into account the views of other Commonwealth Ministers who have administrative responsibilities relevant to an action. This applied to five of the eight actions approved. Comments were received on each of the proposed decisions.

Section 130 of the Act provides that, in certain circumstances, the Minister may not decide whether to approve an action until a notice from the relevant State or Territory has been received. The notice must state that environmental impacts on matters not protected by the Act for the purposes of the action have been assessed to the greatest extent practicable, and how the impacts have been assessed. Such notices were required for four of the actions approved to 30 June 2001, and for four of the actions that were pending approval at that date.

Strategic assessment

On 17 November 2000 the Minister approved generic terms of reference for strategic assessment under the Act of Commonwealth managed fisheries.

On 31 May 2001 the Minister signed two agreements with the Australian Fisheries Management Authority to conduct strategic assessments under the Act for the Heard Island and McDonald Islands Fishery, and the Bass Strait Central Zone Scallops Fishery. The strategic assessments for the fisheries commenced with the release for public comment of the draft fishery-specific terms of reference.

No agreements under Section 146 of the Act were made for the strategic assessment of policies, plans or programs. In principle agreement was reached between the Minister for the Environment and Heritage and the Minister for Industry, Science and Resources to conduct a strategic assessment under Section 146 of the Act on oil and gas exploration activities in Commonwealth marine waters. The details of a formal agreement and terms of reference for the strategic assessment were being finalised as of 30 June 2001.