Department of Sustainability, Environment, Water, Population and Communities

2. Promoting ecologically sustainable development

Section 516A of the EPBC Act requires the department to report on how the department’s activities and administration of the Act accorded with the principles of ecologically sustainable development. The principles of ecologically sustainable development embodied in section 3A of the EPBC Act are as follows:

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  Decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations.
  
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  If there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
  
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  The principle of intergenerational equity—that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.
  
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  The conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making.
  
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  Improved valuation, pricing and incentive mechanisms should be promoted.
  

These principles are relevant to all activities and decisions made by the minister and the department in relation to the operation of the EPBC Act. These principles were complied with in all portfolio activities and decisions under the EPBC Act in 2012–13. In addition, the minister and the department have emphasised approaches such as strategic assessments, bilateral agreements between the Commonwealth and other jurisdictions and reform of regulatory arrangements as a means of better meeting the principles of ecologically sustainable development in the current and future operation of the EPBC Act. This section of the report describes the department’s work in these areas in 2012–13, specific environmental impact assessments and the department’s compliance and enforcement activities.

2.1 Strategic approaches

Strategic assessments

Strategic assessments under the EPBC Act provide a tool for reducing regulatory burden by considering Commonwealth and state or territory environmental planning issues in a single assessment process. These assessments can deliver greater certainty to developers, landholders, planners, industry, environmental groups, governments and the community in general. Strategic assessments are implemented at the landscape scale and explicitly consider cumulative environmental impacts.

The Commonwealth entered into four new strategic assessments during 2012–13.

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  urban development at Gungahlin with the Australian Capital Territory Government
  
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  a biodiversity plan for coal mining in the Upper Hunter Valley, New South Wales, with the State of New South Wales
  
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  BHP Billiton iron ore expansion for the Pilbara
  
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  Hamersley Iron Pty Ltd (Rio Tinto) iron ore expansion for the Pilbara.
  

Work also continued on five strategic assessments including:

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  the comprehensive strategic assessment for the Great Barrier Reef World Heritage Area
  
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  Perth and Peel regions, Western Australia
  
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  additional urban growth corridors as part of the Melbourne strategic assessment
  
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  Browse Basin LNG Precinct
  
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  fire management policy, South Australia.
  

During 2012–13, the Minister for Sustainability, Environment, Water, Population and Communities (or his delegate) endorsed and/or approved the following policies, plans or programs assessed under a strategic assessment:

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  Midlands Water Scheme, Tasmania was approved (involving the third and final stage of three stages)
  
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  development at Heathcote Ridge, New South Wales, was endorsed and approved
  
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  urban development at Gungahlin, Australian Capital Territory, was endorsed.
  

As a result of the approval of the Tasmanian Midlands Water Scheme, approvals are not required for on-farm irrigation use, saving approximately 100 referrals by individual farmers.

In addition, as part of the Regional Sustainability Planning Program, an agreement under section 146 was signed with the New South Wales Government to strategically assess a program based on the revised Lower Hunter Regional Conservation Plan.

Marine bioregional planning

The Commonwealth marine environment is a matter of national environmental significance under the EPBC Act. With the release of these plans, the values and pressures within this vast and remote entity are systematically identified and prioritised for the first time. As such, the plans will contribute to improved decision making under the Act.

Marine bioregional plans were released in August 2012 for the South-west, North-west, North and Temperate East marine regions. These plans provide a comprehensive description of the conservation values of the marine regions, the pressures these values are under and priorities for further effort and investment. The plans also provide guidance on the risk of significant impact that some activities might represent, particularly in regard to location or timing. The minister must have regard to these plans, prepared under section 176 of the EPBC Act, in all decisions for which the plans are relevant.

The department uses these plans in the assessment of referrals and other assessments under the EPBC Act (primarily for offshore proposals), to provide regional context for other activities such as prosecution for breaches of the EPBC Act and to inform research and funding programs.

Assessment bilateral agreements

A key function of assessment bilateral agreements is to reduce duplication of environmental assessment and regulation between the Commonwealth and the states and territories. Assessment bilateral agreements allow the Commonwealth to accredit particular state and territory assessment processes and, in some cases, state and territory approval decisions. To be accredited, state and territory processes need to meet best-practice criteria set out in the EPBC Act and its regulations. Assessment bilateral agreements implement the Council of Australian Governments (COAG) national reform agenda to reduce duplication between jurisdictions for environmental impact assessment.

If proposed actions are covered by an assessment bilateral then they are assessed under the accredited state and territory processes. After assessment, the proposed actions still require approval from the Commonwealth minister under the EPBC Act.

At 30 June 2013 assessment bilateral agreements under the EPBC Act were in place between the Commonwealth and all jurisdictions except New South Wales. The New South Wales assessment bilateral agreement expired in January 2012 and a new agreement is being negotiated. Until a new assessment bilateral agreement is in place, proposals in New South Wales may be assessed by a one-off accredited assessment.

The department is working with Western Australia, the Northern Territory and Queensland to review current assessment bilateral agreements in view of recent amendments to those jurisdictions’ environmental assessment legislation. In addition, the department is also working with the Northern Territory and South Australia to complete a five-year review of the operation of the current assessment bilateral agreement, as required by section 65 of the EPBC Act.

Separate administrative arrangements have been developed to provide for daily operational arrangements of matters in the assessment bilateral agreements. Administrative arrangements are currently in place with Queensland, the Northern Territory, Tasmania and the Australian Capital Territory. The department is working closely to develop arrangements with Western Australia and Victoria.

2.2 Environmental impact assessment

The department works closely with proponents, state, territory and local governments and other stakeholders, including consultants, to ensure that the requirements of the environmental impact assessment process under the EPBC Act are understood. The department encourages proponents to engage with the department in the early stages of developing their project so that EPBC Act related issues can be highlighted and taken into account in a project’s decision making and planning.

Projects that most effectively achieve regulatory certainty under the EPBC Act are consistently characterised by:

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  Proponents engaging early with the department to ensure that EPBC Act obligations are fully understood and taken into account.
  
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  Proponents seeking to address EPBC Act requirements, where appropriate, at the same time as state or territory requirements, to maximise the opportunity to use accredited state and territory assessment processes where possible.
  
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  Projects using environmentally conscious design that avoids or minimises impacts such as habitat clearing.
  
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  Proponents providing high-quality information to regulatory agencies early in the assessment process.
  
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  Proponents engaging positively with the community.
  
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  Project outcomes clearly maintaining and enhancing the environment, including, where appropriate, providing additional habitat for threatened species.
  

The proponent is responsible for satisfying regulatory requirements under the EPBC Act before taking their proposed action. The proponent initiates this process by submitting a referral for a determination on whether a proposed action will have or is likely to have a significant impact on matters of national environmental significance (MNES). If a significant impact on MNES is likely and further assessment is necessary, the proposed action will be determined to be a controlled action and approval by the minister or their delegate will be required.

The EPBC Act provides for a case-by-case assessment that is most appropriate to the complexity and scale of the project by either the Australian Government or an accredited state and territory process (see also section 2.1: Bilateral agreements).

In 2012–13 the statutory timeframes for the three key decision points in the environmental assessment process—a decision on whether the action is a controlled action, an assessment approach decision and the approval decision—were met 63 per cent of the time. Of the decisions that ran over the statutory timeframe,
49 per cent were made within a further 10 business days of the statutory due date.

Detailed statistics relating to EPBC Act referrals, assessments and approvals are in Appendix A.

Referrals

In 2012–13, 439 actions were referred to the Australian Government for decision on whether approval was required under the EPBC Act. This is an increase of 7 per cent from the previous year. Thirty-two referrals were the result of compliance actions by the department. Queensland accounted for the highest proportion of referrals at 26 per cent of the total actions referred.

Mining; residential development; land transport; commercial development; marine mineral, oil and gas exploration; and tourism and recreation were the most heavily represented industries of total actions referred, reflecting broader trends within Australia’s economy. Smaller numbers of referrals received by the department related to energy generation (renewable and non-renewable); natural resource management, water management and use and waste management (sewerage and non-sewerage).

The possible outcomes of a referral are listed below:

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  Not a controlled action: no approval required, as the action described in the referral will not have a significant impact on matters of national environmental significance.
  
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  Not a controlled action/particular manner: no approval required, but the action must be undertaken in the manner specified in the referral. This provision may be used when there is clear evidence that a particular mitigation or avoidance measure
  will reduce or avoid significant impacts. Penalties apply to breaches of particular manner decisions.
  
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  Controlled action: approval is required through the assessment and approval process under the EPBC Act.
  
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  Clearly unacceptable: the proposal is determined, without further assessment, to have an unacceptable impact on one or more matters of national environmental significance.
  

In 2012–13, decisions involving referrals were as follows:

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  193 actions were determined to be not controlled actions and to require no further assessment
  
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  96 actions were determined to be not controlled actions if carried out in a particular manner
  
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  118 actions were determined to be controlled actions and to require further assessment and approval decision
  
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  one action was determined to be clearly unacceptable.
  

The highest number of controlled action decisions (40) related to mining projects.

Thirty nine referrals were withdrawn before a controlled action decision, 43 were withdrawn after a controlled action decision and two lapsed after a controlled action decision. Four reconsideration requests were received during the year and five decisions were made.

Assessments and approvals

Once a project is determined to be a controlled action under the EPBC Act, further assessment of the likely impacts to matters of national environmental significance is undertaken. A decision is made for all controlled action determinations on the approach by which this assessment is conducted (the ‘assessment approach decision’). There are five different levels of assessment. When deciding on the assessment approach the department considers factors such as the scale of the project, the likely impacts and the amount of information already provided. Each level requires technical information provided by the proponent to be considered and each allows for a public comment period. Comments received during this time are then considered as part of the environmental impact assessment.

The assessment of 16 projects were completed under bilateral agreements in 2012–13 and a further 83 projects were under assessment using a bilateral agreement at 30 June 2013.

Following assessment, the Minister for Sustainability, Environment, Water, Population and Communities or the minister’s delegate will decide whether to approve the proposed action and the conditions applied to that action. In 2012–13, 81 controlled actions were approved, an increase of 8 per cent on the 75 controlled actions approved in 2011–12. Conditions attached to approvals may include requirements to:

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  manage the environmental effects of construction
  
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  provide compensatory habitat to offset impacts on listed species
  
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  establish monitoring programs to ensure water quality is maintained
  
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  use independent audits
  
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  manage effects on cetaceans.
  

Decisions made, notices issued and invitations to comment under the EPBC Act are published on the department’s website.

Meeting statutory timeframes for assessment approach and approval decisions

The assessment approach and approval decisions made under the EPBC Act are governed by statutory timeframes. In 2012–13, 45 of the 95 assessment approach decisions were made outside the prescribed statutory timeframes. The majority of late assessment approach decisions were made within 10 business days of the statutory due date.

Thirty-two of the eighty-one approval decisions were made outside the statutory timeframe.

Further information on statutory timeframes for referral, assessment and approval decisions are provided in Table A14 at Appendix A.

Actions by the Australian Government and actions on Commonwealth land

In addition to the eight MNES protected by the EPBC Act, the EPBC Act also regulates actions that have a significant environmental impact on Commonwealth land or that are carried out by an Australian Government agency.

In 2012–13 five controlled action determinations were made relating to Commonwealth land and four controlled action determinations were made relating to actions by Australian Government agencies.

The relevant Australian Government agency or employee must inform the Minister for Sustainability, Environment, Water, Population and Communities of the proposal and the minister must assess the action before advising the agency or employee on how to proceed.

In 2012–13 advice was requested on seven occasions by the Department of Infrastructure and Transport and the Civil Aviation Safety Authority for proposals involving Commonwealth airports. The minister’s delegate determined that advice was not required for five of those proposals and advice is required for two of the proposals. As at 30 June 2013, this advice had not been provided.

Statements of reasons

Sections 77(4) and 78C(4) of the EPBC Act allow persons to request a statement of reasons about controlled action decisions and reconsideration of controlled action decisions respectively. Under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) a statement of reasons can also be requested for administrative decisions made under legislation. In 2012–13, 28 requests were received and 29 statements provided under the ADJR Act and the EPBC Act (the statutory timeframe for providing one of the statement of reasons requested in 2011–12 carried into 2012–13).

Reconsideration of a decision

Reconsideration of a decision is available in limited circumstances and is the only way to revoke and remake a decision. Typically, reconsiderations are undertaken on request when there is substantial new information or a substantial change in the likely effects on protected matters.

In 2012–13 five were reconsidered by the Minister for Sustainability, Environment, Water, Population and Communities or his delegate and three decisions were revoked and new decisions made.

Sea dumping

The Environment Protection (Sea Dumping) Act 1981 fulfils Australia’s international obligations under the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 and 1996 Protocol Thereto (London Convention and Protocol), which aims to protect and preserve the marine environment from pollution, especially from dumping at sea. During 2012–13, 10 sea dumping permits and nine variations were issued by the department.