Intention to develop a draft bilateral agreement with New South Wales under section 45 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Overview

The Commonwealth of Australia has announced its intention to develop a draft bilateral agreement with New South Wales under section 45 of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act). This initiative, announced by Minister for the Environment and Energy, Josh Frydenberg, aims to revise the existing bilateral agreement dated 26 February 2015 between the Commonwealth and New South Wales. The draft agreement may include modifications to the classes of actions outlined in Schedule 1 and other miscellaneous changes. Additionally, it may specify certain classes of actions that would not require assessment under Part 8 of the EPBC Act. This development reflects a policy objective to refine and potentially streamline the processes involved in environmental assessments and approvals, enhancing collaboration between the Commonwealth and New South Wales in environmental protection and biodiversity conservation.

Scope and Application

The draft bilateral agreement, as outlined by Minister Josh Frydenberg, is developed under section 45 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and aims to amend the existing bilateral agreement between the Commonwealth of Australia and the State of New South Wales, originally established on 26 February 2015. This agreement is intended to alter the classes of actions listed in Schedule 1 of the current bilateral agreement, and may also introduce other miscellaneous amendments. Furthermore, the draft bilateral agreement has the potential to declare certain classes of actions that need not be assessed under Part 8 of the EPBC Act, thereby streamlining the assessment process for specific activities. The proposed changes will affect all persons, entities, and industries within New South Wales that are subject to the classes of actions outlined in the bilateral agreement, as well as any associated conduct or transactions. The geographic and jurisdictional reach of the agreement is confined to the Commonwealth of Australia and the State of New South Wales, with any exclusions, exemptions, or thresholds to be detailed within the draft bilateral agreement itself. The EPBC Act may also extend or restrict the application of the agreement through subordinate instruments, which will be subject to further review and consultation during the development process.

Key Provisions

The primary sections of the legislation in question revolve around the Minister for the Environment and Energy's intention to develop a draft bilateral agreement with New South Wales, as outlined in section 45 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Specifically, subsection 45(3) of the EPBC Act allows the Minister to give notice of this intention to develop a draft bilateral agreement, which aims to amend the existing agreement of 26 February 2015. This draft agreement has the potential to modify the classes of actions listed in Schedule 1, as well as make other miscellaneous amendments to streamline and update the current framework. Additionally, the draft agreement might include provisions that exempt certain classes of actions from assessment under Part 8 of the EPBC Act, thereby altering the scope of required environmental assessments for specific projects or activities. The obligations and requirements imposed by this legislation are primarily directed at the Minister for the Environment and Energy, who is tasked with the responsibility of developing the draft bilateral agreement. This process requires careful consideration and consultation to ensure that the proposed changes align with the objectives of the EPBC Act and the needs of both the Commonwealth and New South Wales. The Minister must also adhere to any consultation processes stipulated by the EPBC Act, which may involve engaging with stakeholders, including industry representatives, environmental groups, and the public, to gather input and feedback on the proposed amendments. Furthermore, the Minister must ensure that the draft agreement addresses any outstanding issues or areas of concern identified in the existing bilateral agreement, with the aim of enhancing environmental protection and biodiversity conservation outcomes. Under the EPBC Act, there are various offences, penalties, and potential consequences for non-compliance with the requirements outlined in the Act or the bilateral agreements developed pursuant to it. While the specific legislative provisions governing penalties are not detailed in the notification, breaches of the EPBC Act can result in significant fines and other penalties, depending on the nature and severity of the offence. For example, individuals or corporations found guilty of contravening the Act may be liable for civil penalties, including fines of up to $1.1 million for individuals and up to $5.5 million for corporations, as well as criminal penalties, which may include imprisonment for up to five years. Additionally, failure to comply with the provisions of a bilateral agreement could lead to similar consequences, as the agreements are intended to complement and enforce the objectives of the EPBC Act. Therefore, it is essential for all parties involved in the development and implementation of the draft bilateral agreement to adhere to the requirements set forth in the legislation to avoid potential legal and financial repercussions.