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DRAFT APPROVAL BILATERAL AGREEMENT

MADE UNDER SECTIONS 45 AND 46 OF THE ENVIRONMENT

PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 (CTH)

Commonwealth of Australia (Commonwealth)

and

The State of Queensland (Queensland)

Bilateral Agreement under sections 45 and 46 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) 1

Table of contents

Details 3

Provisions 51. Definitions and interpretation 52. Nature of this Agreement 73. Agreement period 74. Effect of this Agreement 75. Assessment 86. Decisions on approval 107. Transparency and access to Information 148. Co-operation 169. Protection of heritage values 1710. Administrative Arrangements 1811. Reports 1812. Review of the Agreement 1913. Information sharing and compliance 2014. Audits 2015. Rectification 2216. Escalation 2217. Suspension or cancellation 2618. Transitional 2619. Amendment 2620. Freedom of information 2721. General provisions 27

Schedule 1 – Declared class of actions 28

Schedule 2 – Open access to Information 31

Schedule 3 – Guidance documents for species and ecological communities 34

Schedule 4 – Additional streamlining measures 36

Execution page 38

Bilateral Agreement under sections 45 and 46 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)2

DRAFT


Details

PartiesThe parties to this Agreement are:

1. the Minister for the Environment for and on behalf of the Commonwealth of Australia (Commonwealth); and

2. the Queensland Ministers for and on behalf of the State of Queensland (Queensland).

BackgroundA. Under the Intergovernmental Agreement on the Environment 1992 and the Council of

Australian Governments Heads of Agreement on Commonwealth and State Roles and Responsibilities for the Environment 1997, the parties committed to working together across their shared responsibilities to protect and conserve Australia’s environment.

B. Both the Commonwealth and Queensland are committed to cooperative efforts to strengthen intergovernmental cooperation on the environment and to minimise costs to business while maintaining high environmental standards.

ObjectsA. Under the Memorandum of Understanding dated 18 October 2013, the

Commonwealth and Queensland committed to the establishment of a ‘one-stop-shop’ for environmental approvals under the EPBC Act, removing duplication of assessment and approval processes while maintaining high environmental standards.

B. This Agreement facilitates the establishment of a ‘one-stop-shop’ for environmental approvals by:

a. identifying the authorisation processes that will be accredited by the Commonwealth Minister under section 46 of the EPBC Act; and

b. declaring that the actions in the class of actions specified in Schedule 1 do not require approval under Part 9 of the EPBC Act for the purposes of the provisions of Part 3 of the EPBC Act specified in Schedule 1.

C. This Agreement aims to:

a. ensure Australia complies fully with all its international environmental obligations;

b. ensure Matters of National Environmental Significance (Matters of NES) are protected as required under the EPBC Act;

c. promote the conservation and ecologically sustainable use of natural resources;

d. ensure an efficient, timely and effective process for environmental assessment and approval of actions; and

e. minimise duplication in the environmental assessment and approval process through Commonwealth accreditation of the processes of Queensland.

Bilateral Agreement under sections 45 and 46 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)4

D. The parties will use their best endeavours to implement the commitments in this Agreement acting in a spirit of cooperation and consultation to achieve an efficient, timely and effective process for environmental assessment and approval.


Provisions

1. Definitions and interpretation1.1 DefinitionsIn this Agreement, except where the contrary intention is expressed, terms have the same meaning as in the EPBC Act and otherwise the following definitions are used:

Accredited Process an authorisation process accredited by the Commonwealth Minister under section 46(3) of the EPBC Act for the purposes of this Agreement.

Administrative Arrangements

administrative arrangements made under clause 10.1 of this Agreement.

Agreement this bilateral agreement made under section 45 of the EPBC Act between the Commonwealth and Queensland, as amended from time to time, and includes its Schedule(s).

Application a properly made application to take an action, lodged in accordance with an Accredited Process.

Assessment Bilateral Agreement

the agreement between the Commonwealth and Queensland dated 11 August 2009 made under section 45 of the EPBC Act, as amended from time to time.

Assessment Report a report prepared by Queensland on the impacts of an action that is the subject of an Application made under an Accredited Process.

Commencement Date the date this Agreement is executed by the parties or, if executed on separate days, the date on which this Agreement is executed by the last party to do so.

Commonwealth Minister

the Minister administering the EPBC Act and includes a delegate of the Minister unless expressly provided otherwise.

Department the Commonwealth Department of the Environment, or any other Commonwealth agency that administers this Agreement from time to time.

EP Act

EPBC Act

the Environmental Protection Act 1994 (Qld).

the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

EPBC Act Environmental Offsets Policy

the Environment Protection and Biodiversity Conservation Act 1999 Environmental Offsets Policy, October 2012 and as amended by the Commonwealth Minister from time to time.


Great Barrier Reef Marine Park Authority

the authority established by section 6 of the Great Barrier Reef Marine Park Act 1975 (Cth).

Information includes data.

Law any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in Australia, whether made by a State, Territory, the Commonwealth, or a local government, and includes the common law and rules of equity, as applicable from time to time.

Matter of NES a matter of national environmental significance protected by a provision of Part 3 of the EPBC Act specified in Item 2 of Schedule 1.

Queensland Minister the Queensland Minister(s) responsible for administering the Queensland Laws specified in Schedule 1 of this Agreement, and includes a delegate of the Queensland Minister(s) unless expressly provided otherwise.

Queensland Offsets Register

the register established and kept under section 89 of the Environmental Offsets Act 2014 (Qld), once passed.

Reef Trust the programme of that name, jointly coordinated by the Commonwealth and Queensland, the objective of which is to fund projects that will assist in the ongoing protection and management of the Great Barrier Reef World Heritage Area.Note: The Reef Trust will consolidate government and private funds, including funding derived from the pooling of offset funds that target specific residual impacts on the Great Barrier Reef from development activities as required under the EPBC Act.

Schedule a schedule to this Agreement.

SDPWO Act

Site

the State Development and Public Works Organisation Act 1971 (Qld)

includes Queensland and Commonwealth premises.

Supervising Scientist the office established under section 4 of the Environment Protection (Alligator Rivers Region) Act 1978 (Cth) and includes any other person that may, from time to time, perform the functions of that office.

1.2 InterpretationIn this Agreement, except where the contrary intention is expressed:

(a) the singular includes the plural and vice versa, and a gender includes other genders;

(b) another grammatical form of a defined word or expression has a corresponding meaning;


(c) the meaning of general words is not limited by specific examples introduced by ‘for example’ or similar expressions;

(d) a reference to a clause, paragraph, Schedule or annexure is to a clause or paragraph of, or Schedule or annexure to, this Agreement;

(e) a reference to a statute, ordinance, code or other Law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; and

(f) notes and headings are for convenient explanation or reference only and do not form part of this Agreement or affect the meaning of the provisions to which they relate.

1.3 Priority of Agreement documents(a) If there is inconsistency between any of the documents forming part of this

Agreement, those documents will be interpreted in the following order of priority to the extent of any inconsistency:

(i) Schedule 1; then

(ii) the details and operative provisions of this Agreement; then

(iii) Schedules 2 to 4 in order of appearance.

(b) Administrative Arrangements will be read subject to this Agreement.

2. Nature of this Agreement(a) This Agreement is a bilateral agreement for the purposes of section 45 of the

EPBC Act.

(b) The parties do not intend this Agreement to create contractual or other legal obligations between the parties, other than as provided for in the EPBC Act.

3. Agreement periodThis Agreement commences on the Commencement Date and expires on the day after the tenth anniversary of the Commencement Date, unless the Agreement is suspended or cancelled earlier in accordance with the EPBC Act.

Note: Section 65(2) of the EPBC Act requires the Commonwealth Minister to cause a review of the operation of this Agreement to be carried out at least once every five years while this Agreement remains in effect.

4. Effect of this Agreement4.1 DeclarationSubject to clause 4.2, and consistent with section 29 of the EPBC Act, it is declared that an action does not require approval under Part 9 of the EPBC Act for the purposes of the provisions of Part 3 of the EPBC Act specified in Item 2 of Schedule 1 to this Agreement if the action is in the class of actions specified in Item 4 of Schedule 1 to this Agreement.

4.2 Scope(a) Clause 4.1 applies to an action which occurs within Queensland.


(b) Where an action forms part of a larger action that does not occur wholly within Queensland, Queensland will consult and use its best endeavours to coordinate its assessment and approval processes with other relevant jurisdictions.

(c) For the purposes of section 49 of the EPBC Act, the provisions of this Agreement:

(i) have effect in relation to an action located wholly or partly in the Great Barrier Reef Marine Park (unless the action is also an action described in clause 4.2(c)(ii)); and

(ii) do not have effect in relation to an action:

(A) located wholly or partly in a Commonwealth area; or

(B) taken by the Commonwealth or a Commonwealth agency.

Note: The provisions of this Agreement do apply in relation to an action taken outside a Commonwealth area which is likely to have a significant impact on a Commonwealth area.

(d) This Agreement does not apply to an action if:

(i) before the Commencement Date, the taking of that action was:

(A) approved, taken to have been approved, or refused under Part 9 of the EPBC Act; or

(B) determined to be clearly unacceptable under Division 1A of Part 7 of the EPBC Act; and

Note: Section 146D of the EPBC Act provides that an approval under section 146B of the EPBC Act is taken to be an approval under Part 9 of the EPBC Act.

(ii) that approval, refusal or determination that the action is clearly unacceptable, remains in force.

5. Assessment5.1 Identification of impacts on Matters of NES

(a) If an action may require approval under an Accredited Process, Queensland will, as early as possible, notify the proponent of the action that there may be no requirement for an approval of the action under Part 9 of the EPBC Act.

(b) If an action may not require approval under an Accredited Process, Queensland will use its best endeavours to notify the proponent of the action of their obligation under the EPBC Act to refer an action which is likely to have a significant impact on a Matter of NES to the Commonwealth Minister.

(c) If an action can be approved under an Accredited Process, Queensland will require the proponent of the action to identify the likely impacts on each Matter of NES.

Note 1: The notification under clauses 5.1(a) and (b) may be undertaken in accordance with standard guidelines, which outline the obligation of proponents to consider the application of the EPBC Act where an action is likely to have a significant impact on a Matter of NES, and, if that Act may apply, to obtain an approval under an Accredited Process or, if such a process is not likely to or will not apply, to refer the proposal for a decision under section 75 of the EPBC Act.


Note 2: The requirement to identify impacts on Matters of NES in an application referred to in clause 5.1(c) may be included in guidelines or standard templates for applications.

5.2 Undertaking to assess impacts on Matters of NESQueensland undertakes to ensure that there will be an adequate assessment of the impacts that actions that may be approved in accordance with an Accredited Process:

(a) have or will have; or

(b) are likely to have,

on each Matter of NES covered by this Agreement.Note: ‘Impacts’ is defined in section 527E of the EPBC Act.

5.3 General approach to assessmentWhere a proposed action may be approved in accordance with an Accredited Process:

(a) Queensland will, in determining the assessment requirements for the proposed action, ensure there is sufficient Information on the relevant impacts of the proposed action to allow the decision maker to make an informed decision whether or not to approve the proposed action and, if so, under what conditions. The extent of the assessment will be proportionate to the level of likely environmental risk; and

Note: In deciding the assessment requirements for the proposed action and the level of likely environmental risk, the relevant decision maker may consider whether the proponent of the proposed action is a suitable person to be granted an approval, including having regard to the person’s history in relation to environmental matters.

(b) Queensland will ensure that:

(i) all relevant impacts of the action on Matters of NES covered by this Agreement are identified separately in the assessment process. This means that impacts must be explicitly assessed for each Matter of NES that is likely to be significantly impacted upon by the action;

(ii) in relation to listed threatened species, listed threatened ecological communities and listed migratory species – impacts are assessed with regard to the full extent of the geographic range of the Matters of NES; andNote: For example, clause 5.3(b)(ii) would require an assessment of impacts with regard to the national extent of a listed threatened species’ habitat.

(iii) the Information and opinion on which the assessment is based is included, or its source identified, in the Assessment Report.

5.4 Seeking expert advice(a) Queensland will seek, and take into account, the expert advice of the Great

Barrier Reef Marine Park Authority on a proposed action which is within, or likely to impact on, the Great Barrier Reef Marine Park (a Matter of NES). Arrangements for the provision of advice will be set out in a Memorandum of Understanding between Queensland and the Great Barrier Reef Marine Park Authority.

(b) Queensland may seek, and take into account, the expert advice of the Supervising Scientist on a proposed action that is a nuclear action.


Arrangements for the provision of advice will be set out in the Administrative Arrangements.

(c) Queensland may seek advice from the Commonwealth on Australia’s international obligations as these relate to Matters of NES. The advice will be sought through the Senior Officers’ Committee with details to be set out in the Administrative Arrangements.

(d) In relation to coal seam gas and large coal mining developments Queensland will:

(i) refer coal seam gas or large coal mining developments that are likely to have a significant impact on water resources, including any impacts of associated salt production and/or salinity, to the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development for advice; and

(ii) ensure any relevant advice from the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development is taken into account by the decision maker in a transparent manner.

(e) Queensland may seek advice from other expert advisory bodies established under the EPBC Act, through the Senior Officers Committee, with details to be set out in the Administrative Arrangements.

5.5 Statutory undertakingWhere an action:

(a) is an action taken or proposed to be taken in Queensland;

(b) is an action covered by the declaration in clause 4.1; and

(c) is an action:

(i) taken or proposed to be taken by a constitutional corporation; or

(ii) taken by a person for the purposes of trade or commerce between Australia and another country, between two States, between a State and a Territory, or between two Territories; or

(iii) whose regulation is appropriate and adapted to give effect to Australia's obligations under an agreement with one or more other countries,

Queensland undertakes to ensure that the impacts that the action has, will have, or is likely to have on a thing which is not a matter protected by a provision of Part 3 of the EPBC Act, are assessed to the greatest extent practicable. The parties agree that ‘greatest extent practicable’ is satisfied where the assessment has been undertaken in a manner of assessment consistent with the relevant Accredited Process.

6. Decisions on approval6.1 Avoid, mitigate, offset hierarchy

(a) If the decision maker considers, on the basis of the Information in the Application, that it is clear that a proposed action would have unacceptable or unsustainable impacts on a Matter of NES, the decision maker must not approve the action.


(b) To avoid unacceptable or unsustainable impacts on Matters of NES, Queensland will apply the ‘avoid, mitigate, offset’ hierarchy of principles for guiding the assessment and approval of a proposed action under an Accredited Process.

(c) For the purposes of clause 6.1(b) of this Agreement, the ‘avoid, mitigate, offset’ hierarchy of principles are the following, in order, from clause 6.1(c)(i) to (iii):

(i) significant impacts on Matters of NES should be avoided where practicable; Note: For example, changing the route of a proposed access road to avoid impacts on an endangered ecological community may comprise an avoidance measure.

(ii) after all reasonable avoidance measures have been put in place, mitigation of any residual significant impacts on Matters of NES must be undertaken where practicable; thenNote: For example, putting in place measures to reduce sediment runoff from a development site that may otherwise affect a threatened fish species may comprise a mitigation measure.

(iii) once all reasonable avoidance and mitigation measures have been applied, or reasons are made public as to why avoidance or mitigation of residual significant impacts on Matters of NES is not reasonably achievable, Queensland will consider offsets in accordance with clause 6.2 for those impacts.

(d) If a residual significant impact cannot be adequately addressed by applying the hierarchy of principles in clauses 6.1(c)(i) to (iii), including the elements set out in clause 6.2, Queensland will apply the escalation process in clause 16.

6.2 Offsets(a) For the purposes of clause 6.1(c)(iii), Queensland will:

(i) apply the EPBC Act Environmental Offsets Policy (including application of the offset assessment guide where it applies); or

(ii) if:

(A) the relevant decision maker considers that a proposed offset (which may include proposed offsets for a region or class of development) is consistent with the EPBC Act Environmental Offsets Policy but not necessarily with the outcome indicated by the assessment guide because of the unique nature of the impact or a proposed offset or the nature of the project overall; and

(B) the Senior Officers’ Committee provides the decision maker with advice regarding whether the proposed offset would provide an acceptable environmental outcome consistent with the objects of the EPBC Act,

apply the proposed offset referred to in clause 6.2(a)(ii)(A).Note: It is not anticipated that the circumstances described in clause 6.2(a)(ii) will arise other than in exceptional circumstances.


(b) In accordance with Schedule 4 of this Agreement, the parties agree to work cooperatively towards streamlining offsets under a single Queensland offsets policy.

(c) Queensland will include in the Assessment Report (that is published under clause 7.2(a)(i)(E) of this Agreement) Information on the rationale for any offset applied under clause 6.2(a) of this Agreement.

(d) Where relevant, offsets may contribute to the biodiversity conservation priorities of the Commonwealth and Queensland governments, identified in the plans or other instruments mentioned in clauses 6.3 and 6.4, or identified in accordance with the Administrative Arrangements.

(e) Queensland will provide Information on offsets, through the Queensland Offsets Register which is publicly available.

(f) Financial offsets derived as a result of conditions of approval for actions that are taken within, or will impact on, the Great Barrier Reef World Heritage Area (a Matter of NES) will be paid into, and administered by, the Reef Trust.

Note: Queensland may provide notice to the Commonwealth if it proposes to make a decision that is different to the requirements of this clause 6.2 and if so, escalation procedures apply as provided for by clause 16.

6.3 Approvals not inconsistent with plans, etcTo ensure that an action approved in accordance with an Accredited Process will not have unacceptable or unsustainable impacts on Matters of NES, the parties agree that, in deciding whether or not to approve a relevant proposed action, and if so, what conditions to attach to the approval, the relevant decision maker will not act inconsistently with:

(a) for the world heritage values of a declared World Heritage property:

(i) Australia’s obligations under the World Heritage Convention;

(ii) the Australian World Heritage management principles; or

(iii) a management plan that has been prepared for the property under section 316 of the EPBC Act or as described in section 321 of the EPBC Act;

(b) for the National Heritage values of a National Heritage place:

(i) a management plan that has been prepared for the place under section 324S of the EPBC Act or as described in section 324X of the EPBC Act;

(ii) the National Heritage management principles; or

(iii) an agreement to which the Commonwealth is a party in relation to a National Heritage place;

(c) for the ecological character of a declared Ramsar wetland:

(i) Australia’s obligations under the Ramsar Convention;

(ii) the Australian Ramsar management principles; or

(iii) a management plan that has been prepared for the wetland as described in section 333 of the EPBC Act;

(d) for a listed threatened species or ecological community:

(i) Australia’s obligations under:


(A) the Biodiversity Convention;

(B) the Apia Convention; and

(C) CITES; or

(ii) a relevant recovery plan or threat abatement plan; and

(e) for a listed migratory species:

(i) Australia’s obligations under:

(A) the Bonn Convention;

(B) CAMBA;

(C) JAMBA;

(D) ROKAMBA; or

(E) an international agreement approved under section 209(4) of the EPBC Act; and

(ii) a wildlife conservation plan for the species,

as in force at the time the decision is being made.

Note: Queensland may provide notice to the Commonwealth if it proposes to make a decision that is different to the requirements of this clause 6.3 and if so, escalation procedures apply as provided for by clause 16.

6.4 Consideration of policies and guidelinesTo ensure that an action approved in accordance with an Accredited Process will not have unacceptable or unsustainable impacts on Matters of NES, the parties agree that in assessing the impacts of a relevant action, and deciding whether to approve the action and, if so, under what conditions, Queensland will ensure that the relevant decision maker will:

(a) have regard to any relevant bioregional plans as in force at the time of the relevant decision;

(b) take into account any Information on the relevant impacts of actions of the same kind that was given to the Commonwealth Minister under an agreement under Part 10 of the EPBC Act, that is, a strategic assessment report;

Note: This includes the Great Barrier Reef Coastal Zone Strategic Assessment Report prepared by Queensland, and the Great Barrier Reef Region (Marine) Strategic Assessment Report prepared by the Great Barrier Reef Marine Park Authority, and any supplementary reports for the Great Barrier Reef World Heritage Area.

(c) have regard to any relevant approved conservation advice;

(d) take into account such other policies, advice or guidelines relating to Matters of NES, published by the Commonwealth at the time of Queensland making a decision on a proposed action; and

(e) where relevant, record in the Assessment Report how those plans, policies or guidelines were taken into account in the decision-making process.

Note: Such polices may include, for example, policies relating to determining whether particular activities may have a significant impact on a Matter of NES; and policies relating to the carrying out of surveys.

6.5 Approvals based on principles of environmental policyThe parties agree that when deciding whether to approve an action in accordance with an Accredited Process and, if so, under what conditions, Queensland will ensure that the


relevant decision maker will, subject to Law, have regard to the principles of environmental policy, as set out in section 3 of the Intergovernmental Agreement on the Environment 1992.

6.6 Approval conditionsIf:

(a) a proposed action has been assessed as being likely to have a significant impact on a Matter of NES; and

(b) the action is approved in accordance with an Accredited Process,

the approval documentation for the action must explicitly identify those conditions (if any) which relate to Matters of NES.

7. Transparency and access to Information7.1 Indigenous peoples

(a) Where an action:

(i) is likely to have a significant impact on a Matter of NES; and

(ii) may be approved in accordance with an Accredited Process under clause 4.1,

the parties agree that:

(iii) the assessment of the relevant impacts of that action; and

(iv) the decision whether or not approve the action and, if so, under what conditions,

must recognise the role and interests of Indigenous peoples in promoting the conservation and ecologically sustainable use of natural resources and promote the cooperative use of Indigenous peoples’ knowledge of biodiversity and Indigenous heritage.

(b) In particular, Queensland will:

(i) require that the proponent takes all reasonable steps to obtain the views of directly affected Indigenous peoples in relation to any proposal under assessment that is likely to have a significant impact on any Matter of NES that relates to Indigenous cultural heritage (including through impacts on biodiversity) or that will occur on or affect land or waters that may be subject to native title;

(ii) ensure that the proponent treats the views of Indigenous peoples as the primary source of Information on the value of Indigenous cultural heritage that relates to a Matter of NES; and

(iii) consider and apply, as appropriate, guidelines published by the Commonwealth in relation to consulting with Indigenous peoples for proposed actions that are under assessment.

(c) The Commonwealth will consult with Queensland before amending or adopting guidelines referenced in clause 7.1(b)(iii).

Note: For example, for the purpose of this clause:

- a decision maker would pay particular regard to submissions from Indigenous peoples with a particular interest in a proposal, assessed in accordance with an Accredited Process; and


- assessments or conditions on approval may require consultation with Indigenous peoples, e.g. in relation to adequacy of surveys relating to Matters of NES.

7.2 Public access to documentation(a) Queensland will:

(i) publish Information relating to proposed actions on the Internet, including the following, where relevant:

(A) Application documentation;

(B) any draft and final terms of reference for assessment;

(C) draft and final environmental assessment documentation;

(D) public comments, or explanation of how public comments were addressed, on any of the above; and

(E) Assessment Reports or reasons for decisions consistent with current practice;

(ii) publish on the Internet relevant Information, rules, guidelines, or practices used by decision makers in exercising their functions or powers under an Accredited Process; and

(iii) in relation to actions that fall within the class of actions specified in Item 4 of Schedule 1, publish all the approval decisions for those actions, and the primary material on which those decisions are based, on the Internet as soon as practicable after the approval decisions are made.

(b) Queensland will seek to apply an Open Licence (as defined in Schedule 2) to material referred to in clause 7.2(a) to enable the Commonwealth to republish it on an appropriate website.

(c) Clauses 7.2(a) and (b) will not be taken to have been breached where the publication of the Information is prohibited under Queensland or Commonwealth Law, or otherwise not published or published in a particular manner, because the Information (or part thereof) is:

(i) confidential in nature;

(ii) the personal Information of an individual;

(iii) likely to be considered sensitive by an Indigenous group (including a kinship group), including in relation to any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group; or

(iv) environmentally sensitive Information which, if published or published in a particular manner, may increase the risk of damage to the Matter of NES to which the Information relates.

(d) For the avoidance of doubt, where clause 7.2(c) applies Queensland will comply with clauses 7.2(a) and (b) to the extent it is possible to do so without disclosing that part of the Information or material that is exempt from publication under clause 7.2(c).

(e) Where Information is made available subject to a Restrictive Licence (as defined in Schedule 2), it will be exchanged between the parties in accordance with the protocols described in Schedule 2.


7.3 Public access – particular needs groupsQueensland will, in providing public access to published material, make special arrangements, as appropriate, to ensure affected groups with particular communication needs, including Indigenous people affected by a proposed action, have an adequate opportunity to:

(a) access published material; and

(b) comment on actions being assessed in accordance with an Accredited Process.

7.4 Public comments(a) Queensland will accept and consider comments in relation to an action to

which this Agreement applies from any persons in Australia where the comments are properly made in accordance with the Accredited Process.

(b) In accordance with clause 7.2(a)(i)(D), Queensland will publish the public comments received in respect of a proposed action (including those referred to in clause 7.4(a)), or an explanation of how those public comments were addressed.

(c) Where a proposal is varied after an application is received and published, but before public comment is sought on the proposal, the nature and extent of the variation to the proposal must be made clear at the time public comment is sought, in accordance with the procedures outlined in the Administrative Arrangements.

(d) Once public comment has been sought on a proposal, the proposal may only be varied if the varied action is substantially the same character as the action described in the material published for public comment. Public notification of the variation must be made in accordance with the procedures outlined in the Administrative Arrangements.

Note: In considering whether or not the character of the varied proposal is substantially the same as the character of the original proposal, Queensland may have regard to the change (if any) in: the nature of the activities proposed to be carried out in taking the action; and the nature and extent of the impacts (if any) the action has, will have, or is likely to have, on Matters of NES. This is consistent with section 156B of the EPBC Act.

8. Co-operation8.1 Consideration of proposed actionsWhere a Commonwealth agency becomes aware of an action that may belong to a class of actions to which this Agreement applies, the Commonwealth agency will notify Queensland and redirect the proponent of the action to Queensland for a decision on whether the action belongs to a class of actions to which this Agreement applies.

8.2 Open access to Information(a) The parties commit to the following principles for open access to Information

about the environment and regulated activities so as to improve environmental outcomes and increase efficiency for business and government, and ensure Information on which regulatory decisions are made is fit for purpose:


(i) Information is discoverable, accessible and reusable by the community, business, government and other stakeholders;

(ii) Information is published under an Open Licence, as defined in Schedule 2, and available in the public domain;

(iii) Information is published and described in a way that maximises discovery and reuse, preferably online, and in open formats;

(iv) Information is published at the highest possible resolution and accuracy that is fit for purpose; and

(v) Information is released at no cost to users.

(b) The parties commit to an active and cooperative process of mutually improving Information discovery, documentation, access and use.

(c) The parties will seek to give practical effect to the principles in clause 8.2(a), by implementing the protocols in Schedule 2.

(d) Clauses 8.2(a) and 8.2(b) will be taken not to have been breached, where the release or publication of the Information is prohibited, or otherwise exempt from publication or release, by Queensland or Commonwealth Law, or the Information is otherwise not published in a particular manner, because a party is satisfied that the Information (or part thereof) is:

(i) environmentally sensitive Information which, if published, may increase the risk of damage to a Matter of NES to which the Information relates;

(ii) likely to be considered sensitive by an Indigenous group (including a kinship group), including information in relation to any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group;

(iii) confidential in nature; or

(iv) the personal Information of an individual; or

(v) otherwise not be in the public interest in the opinion of one or more parties.

8.3 Guidance documents(a) The parties commit to cooperating in the development, maintenance, review,

and implementation of guidance documents relating to Matters of NES and the operation of this Agreement.

(b) For the purposes of this clause 8.3, guidance documents may include:

(i) generic advice (rather than advice on particular projects) regarding whether referral to the Commonwealth Minister is required under the EPBC Act or an application may alternatively be made under an Accredited Process;

(ii) referral/application guidelines in relation to significant impacts on Matters of NES;

(iii) guidance documents for species and ecological communities in accordance with Schedule 3; and

(iv) policies relating to Matters of NES prepared by the Commonwealth that would impact on the operation of this Agreement, which may include


guidance specific to discrete populations or components of Matters of NES relevant to Queensland.

9. Protection of heritage valuesThe parties agree to:

(a) work cooperatively, on an ongoing basis, to ensure the protection of the values for which each World Heritage property and National Heritage place in Queensland is listed; and

(b) prepare and implement, according to World and National Heritage principles:

(i) management plans for:

(A) World Heritage properties under section 321 of the EPBC Act; and

(B) National Heritage places under section 324X of the EPBC Act; or

(ii) suitable alternatives to those plans, for example, strategic assessments or assessment guidelines for a World Heritage property or National Heritage place.

10. Administrative Arrangements10.1 Administrative ArrangementsTo ensure that the requirements of this Agreement are administered co-operatively and efficiently, the parties will jointly develop Administrative Arrangements:

(a) for the implementation of this Agreement;

(b) which may include co-operative arrangements for the assessment and approval of actions proposed in Queensland, but which are not within the scope of this Agreement; and

(c) which may include guidelines on the exchange of Information for the purposes of clause 8.2,

within six months of the Commencement Date.

10.2 Senior Officers’ Committee(a) The Administrative Arrangements will detail and provide for the establishment

of a Senior Officers’ Committee to facilitate the implementation of this Agreement.

(b) Except as set out in the Administrative Arrangements, the Senior Officers’ Committee will meet at least quarterly in the first 12 months after the Commencement Date, and then at least every 6 months.

(c) Terms of reference agreed by both parties for the Senior Officers’ Committee will be set out in the Administrative Arrangements.


11. Reports11.1 Reports

(a) Before 31 July each year (or such other time notified to Queensland in writing by the Commonwealth), Queensland will provide information to the Commonwealth for the purpose of the Department’s annual reporting obligations under the EPBC Act, including an analysis of how this Agreement has been implemented.

(b) Information provided to the Commonwealth under clause 11.1(a) will include, at a minimum:

(i) a list of the proposed actions under assessment or approved in accordance with this Agreement in the preceding 12 months;

(ii) Information on the time taken for assessments and approvals in accordance with this Agreement;

(iii) Information on the Matters of NES relating to actions approved under this Agreement;

(iv) Information on the operation of the Queensland system for monitoring compliance with conditions of approval for actions to which this Agreement applies (for example, numbers of audits or compliance incidents relating to Matters of NES for actions approved in accordance with this Agreement);

(v) how any public complaints relating to the Accredited Processes were addressed; and

(vi) other Information reasonably requested by the Commonwealth necessary to meet its annual reporting obligations under the EPBC Act.

(c) Queensland will provide other information to meet reporting commitments to the World Heritage Committee, for proposed actions that are likely to have a significant impact on a World Heritage property.

(d) An agreed form of reporting will be set out in the Administrative Arrangements, with reporting requirements to be tailored to Queensland systems and processes.

11.2 Additional Information(a) Each party will comply promptly with any reasonable request from the other

party to supply Information relating to this Agreement where that Information is not already publicly available, and noting that the parties will seek to rely on publicly available information to the extent practicable.

(b) For the purposes of clause 11.2(a), Information may include copies of studies, reports, any draft decisions (however described) and other Information (including non published information) for actions to which this Agreement applies.

12. Review of this Agreement12.1 Joint reviews

(a) The parties agree to undertake an initial review of the operation of this Agreement in 2017, in accordance with the requirements of clause 12.1(c).


(b) A review of the operation and effectiveness of this Agreement must be carried out at least once every five years while the Agreement remains in effect in accordance with section 65 of the EPBC Act and the requirements of clause 12.1(c).

(c) For each review of this Agreement undertaken in accordance with clause 12.1(a) or 12.1(b):

(i) the review will be carried out jointly as agreed by the Senior Officers’ Committee, with each party meeting their own costs;

(ii) the review will include an evaluation of the operation and effectiveness of this Agreement against the objects of this Agreement. For the purpose of the review, the parties will also specify key performance indicators in the Administrative Arrangements;

(iii) the parties may seek public comments for the purposes of the review; and

(iv) following consultation with the relevant Queensland Minister, the Commonwealth Minister must publish the report of the review in accordance with the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth), and give a copy of the report of the review to Queensland, as soon as practicable after the review is completed.

12.2 Independent review(a) Where agreed by the Senior Officers’ Committee, a review under clause 12.1

may be undertaken in whole or in part by an independent third party. Materials prepared by an independent third party may include studies, evaluations and/or other activities intended to analyse the success of the Agreement in achieving its objectives.

(b) Each party will, if requested by the other for the purpose of a review, and at the requesting party’s expense:

(i) allow third parties reasonable access to its Sites to undertake analysis and evaluation of the Agreement; and

(ii) make records and other Information (including reports) available to third parties for the purposes of the evaluation and analysis.

13. Information sharing and compliance(a) The parties note that the Commonwealth remains responsible for compliance

and enforcement under the EPBC Act, for actions to which that Act continues to apply.

(b) The parties agree to share Information and co-operate on compliance activities for actions to which the EPBC Act may continue to apply (which may include actions that are not approved under an Accredited Process, or actions approved by the Commonwealth Minister before the Commencement Date).

(c) The parties agree to use their best endeavours to notify each other of actions in Queensland of which they are aware that have been taken without approval and have resulted, or are likely to result, in a significant impact on a Matter of NES.


(d) The Commonwealth will use its best endeavours to inform Queensland before commencing enforcement action against a person for a contravention of any of Parts 3 to 9 of the EPBC Act for an action in Queensland.

(e) Queensland will use its best endeavours to inform the Commonwealth before commencing enforcement action under a relevant Law against a person for taking an action to which the EPBC Act may continue to apply.

14. Audits14.1 Scheduled audit

(a) In each financial year, Queensland will audit this Agreement in accordance with accepted best practice audit principles.

(b) For audits under clause 14.1(a), Queensland must address the following:

(i) an evaluation of systemic outcomes relating to this Agreement; and

(ii) the operation of this Agreement;

limited to key performance indicators identified for the purpose of this clause in the Administrative Arrangements, as specified in clause 14.1 (d) of this agreement.

(c) Queensland must produce an audit report which:

(i) is certified by an auditor;

(ii) includes details of the auditor’s qualifications; and

(iii) addresses the audit criteria in 14.1(b).

(d) Audits and reports for the purpose of this clause 14.1 must be carried out in accordance with the Administrative Arrangements, including reporting against key performance indicators.

(e) For each annual audit report under this clause 14.1, Queensland will:

(i) give a copy to the Commonwealth; and

(ii) publish it on the Internet,

within one month of the report being completed.

(f) The costs of audits under this clause will be shared jointly between the parties.

Note: Audits will be undertaken by an independent auditor, not by the parties to this Agreement.

Note: The purpose of clause 14.1 is to implement a best-practice, self-auditing system to embed mechanisms for monitoring and reporting performance under this Agreement.

Note: Regular auditing of particular aspects of this Agreement will support continuous improvement, and will inform broader reviews required under clause 12 of this Agreement.

14.2 Unscheduled audit, review or evaluation(a) Either party may initiate an audit under this clause if:

(i) the proposed audit is subject to consultation in the Senior Officers’ Committee before it is initiated; and

(ii) in the opinion of that party, there has been or is likely to be an adverse systemic outcome relating to this Agreement, whether or not the outcome relates to a contravention or likely contravention of this


Agreement, and the reasons for that opinion are provided to the other party before the audit is initiated.

(b) Either party may arrange for:

(i) an independent audit of the operation of this Agreement over a period of time; and

(ii) an audit report, which addresses audit criteria specified by that party.

(c) Before a party arranges an audit under clause 14.2(b), the parties must notify the other party and consult on:

(i) the appointment of an independent auditor; and

(ii) the audit criteria.

(d) The parties agree to co-operate fully with an independent audit arranged under this clause 14.2.

(e) The party responsible for arranging an audit report may publish the audit report.

(f) Before publishing the audit report under clause 14.2(e), the party responsible for arranging the audit report must:

(i) notify the other party and give them a copy of the final, certified copy of the audit report; and

(ii) provide the other party with 20 business days to respond to the report.

(g) The financial cost of an audit under this clause 14.2 will be borne by the party which arranges it.

14.3 Commonwealth Auditor-GeneralThe parties recognise that, under the Auditor-General Act 1997 (Cth), the Commonwealth Auditor-General may audit the operations of the Commonwealth public sector (as defined in section 18 of that Act) in relation to this Agreement.

14.4 Queensland Auditor-GeneralThe parties recognise that, under the Auditor-General Act 2009 (Qld), Queensland may audit the activities of Queensland public sector entities (as defined in the Schedule to that Act) in relation to this Agreement.

15. RectificationQueensland is responsible for complying with the Accredited Process in relation to an action to which this Agreement applies, and addressing any issues that arise out of the process.

16. Escalation16.1 Escalation process

(a) Acting in a spirit of cooperation, the parties agree that any dispute or concern arising during the course of this Agreement will be dealt with as follows:

(i) the party claiming that there is a dispute or concern will advise the other party and set out the nature of the dispute or concern (which in certain circumstances may be done by a notice of particular interest issued under clause 16.2 or a notice under clause 16.3);


(ii) the parties will seek to resolve the matter by direct negotiation using their best endeavours;

(iii) the parties will seek to resolve the matter as early as practicable; and

(iv) discussions aimed at resolution will normally take place in the following order, before the exercise of any other rights described in clauses 16.4 or 16.5:

(A) at senior officials level, between officers of the Senior Officers’ Committee;

(B) between the Secretary of the Department and the relevant Queensland Director-General or the Queensland Coordinator-General; and then

(C) between the Commonwealth Minister and the relevant Queensland Minister.

(b) This clause is subject to the rights and obligations of each party under relevant provisions of the EPBC Act (including those sections dealing with cancellation and suspension of bilateral agreements).

(c) Reference in clause 16 to the relevant Queensland Minister or relevant Queensland Director-General refers to the Minister or Director-General responsible for the Queensland legislation in respect of which a dispute or concern arises.

16.2 Notice of particular interest(a) If the Secretary of the Department considers, based on substantial new and

credible Information, that the taking of an action may result in serious or irreversible damage to a Matter of NES, he or she may issue a notice of particular interest (a Notice) to Queensland in relation to that action. Unless the Secretary of the Department considers that unforeseen circumstances arise, the Secretary of the Department will seek to issue a Notice at an early stage of the Accredited Process for a particular action.

(b) Before issuing a Notice under clause 16.2(a):

(i) the intent of the parties is to follow the process in clause 16.1;

(ii) the parties will seek to consult the relevant proponent; and

(iii) the Commonwealth Minister will notify the relevant Queensland Minister of the intention to issue the Notice.

(c) The Notice, and the reasons for issuing the Notice, will be published on the Department’s website.

(d) The Senior Officers’ Committee will promptly coordinate a response to any Notice issued under clause 16.2(a) and provide a report to the Commonwealth, including any recommendations.

(e) Queensland may respond to the report.

(f) If satisfied that the reasons for issuing a Notice have changed, the Commonwealth may amend or withdraw the Notice.

16.3 Notice of proposed decision(a) If:


(i) The relevant Queensland decision-maker is concerned that a decision may result in serious or irreversible environmental damage to a Matter of NES, and that decision may substantially not meet the requirements for decision-making defined in clause 16.7; and

(ii) the assessment of social and economic factors for the relevant action could result in the decision being inconsistent with clause 16.7; and

(iii) the action was assessed, or is being assessed, on the basis that this Agreement would apply,

Queensland must, as soon as practicable, but in any event no later than 10 business days before making the decision, notify the Commonwealth Minister of the proposed decision.

(b) A notice under clause 16.3(a) may commence the escalation process in clause 16.1.

(c) If Queensland provides notice under clause 16.3(a), the Commonwealth Minister may seek advice from independent bodies, including the Threatened Species Scientific Committee or the Australian Heritage Council in relation to the proposed action that is the subject of the notice.

16.4 Determination by the Commonwealth Minister(a) Where the Commonwealth Minister considers that the relevant Queensland

decision-maker:

(i) is considering or proposing to make a decision that is likely to result in serious or irreversible environmental damage in relation to a Matter of NES; and

(ii) the decision may substantially not meet the requirements for decision-making as defined in clause 16.7,

the Commonwealth Minister may determine that the action is not within the class of actions to which clause 4.1 applies.

(b) The Commonwealth Minister cannot make a determination under clause 16.4(a) in relation to a particular action if that action has already been approved in accordance with an Accredited Process.

(c) The parties will seek to consult the relevant proponent, and consider the matter in the Senior Officers’ Committee, before any determination is made in respect of an action.

(d) Notice of the determination, and the reasons for issuing the determination, will be published on the Department’s website.

(e) The Commonwealth Minister does not have a duty to consider whether to make a determination under clause 16.4(a) in respect of any action.

(f) Any reference to the Commonwealth Minister in this clause 16.4 is a reference to the Commonwealth Minister and not his or her delegate.

16.5 Determination by the Queensland Minister(a) Where:

(i) the relevant Queensland decision-maker is concerned that a decision:

(A) is likely to result in serious or irreversible environmental damage in relation to a Matter of NES; and


(B) may substantially not meet the requirements for decision-making as defined in clauses clause 16.7; or

(ii) the Queensland Government or a Queensland Government agency is the proponent of an action,

the relevant Queensland Minister may determine that the action is not within the class of actions to which clause 4.1 applies.

(b) Before the relevant Queensland Minister makes a determination in respect of an action, Queensland will:

(i) consider the matter in the Senior Officers’ Committee in accordance with clause 16.1;

(ii) seek to consult the relevant proponent; and

(iii) notify the Commonwealth Minister.

(c) The relevant Queensland Minister cannot make a determination under clause 16.5(a) in relation to a particular action if that action has already been approved in accordance with an Accredited Process.

(d) Notice of the determination will be published on the Department’s website.

(e) The relevant Queensland Minister does not have a duty to consider whether to make a determination under clause 16.5(a) in respect of any action.

(f) Any reference to the Queensland Minister in this clause 16.5 is a reference to the Queensland Minister and not his or her delegate.

16.6 Assessment and approval where determination made(a) If, in accordance with clauses 16.4 or 16.5, the Commonwealth Minister or a

relevant Queensland Minister determines that an action is not an action to which this Agreement applies:

(i) the parties will consult for the purposes of determining whether it might be possible to assess under an accredited assessment approach in accordance with section 87(4) of the EPBC Act; or

(ii) the parties may agree that the action will be remitted to the Commonwealth for assessment and a decision on whether or not to approve the action under the EPBC Act.

Note: The parties will consider, on a case-by-case basis whether or not Queensland will continue to assess the action under an accredited assessment process in accordance with clause 16.1(a)(i) before it is remitted to the Commonwealth for a decision on whether or not to approve the action under the EPBC Act.

(b) If 16.6(a)(ii) applies, Queensland will provide the Commonwealth with any relevant documentation it holds in relation to the proposed action.

16.7 Requirements for decision-makingFor the purpose of clause 16 of this Agreement, a decision may substantially not meet requirements for decision-making if that decision would:

(a) substantially not meet the requirements for decision-making in clauses 6.1 to 6.5 inclusive (decisions on approval) of this Agreement; or

(b) be affected by bias, such that the decision maker could not give genuine consideration to the matters required for decision-making in clauses 6.1 to 6.5.


16.8 Obligations continueDespite the existence of a dispute or concern, the issuing of a notice or a determination by either party under clause 16, both parties must continue to perform their respective obligations under this Agreement, except to the extent that:

(a) this Agreement is suspended or cancelled in accordance with the EPBC Act; or

(b) those obligations are affected by a determination by either party under clause 16.4 or 16.5.

17. Suspension or cancellation17.1 Suspension or cancellation by Commonwealth MinisterThe parties acknowledge that sections 57 to 64 of the EPBC Act provide that the Commonwealth Minister may cancel or suspend all or part of this Agreement (either generally or in relation to actions in a specified class, or for a particular provision of Part 3 of the EPBC Act to which this Agreement relates) under certain circumstances. Sections 57 to 64 of the EPBC Act also set out a process for consulting on the cancellation or suspension of all or part of this Agreement.

17.2 Suspension or cancellation at the request of Queensland Minister(a) The parties acknowledge that section 63 of the EPBC Act requires the

Commonwealth Minister at the request of the relevant Queensland Minister to cancel or suspend all or part of this Agreement if the request is made in accordance with this Agreement.

(b) A request by the relevant Queensland Minister under section 63 of the EPBC Act to cancel or suspend all or part of this Agreement is made in accordance with this Agreement if:

(i) the request is made on the grounds that the Queensland Minister is not satisfied that the Commonwealth has complied, or will comply, with this Agreement; and

(ii) before making the request, the Queensland Minister has consulted with the Commonwealth Minister in writing about the reasons for requesting the suspension or cancellation and allowed a period of at least 20 business days for the Commonwealth Minister to respond.

(c) Any reference to the Commonwealth Minister in this clause 17.2, is a reference to the Commonwealth Minister and not his or her delegate.

(d) Any reference to the relevant Queensland Minister, in this clause 17.2 is a reference to the relevant Queensland Minister and not his or her delegate.

18. TransitionalThis Agreement (including the declaration in clause 4.1) does not apply to an action specified in Item 5 of Schedule 1.

Note: Where this Agreement and an Accredited Process can apply, a proponent may choose to withdraw the proposal under the EPBC Act, and have the matter dealt with under the accredited Queensland process.


19. Amendment19.1 Continuous improvementActing in a spirit of cooperation, the parties will notify and consult each other on matters that come to their attention that may improve the operation of this Agreement. The Administrative Arrangements may detail notification and consultation procedures to give effect to this clause.

19.2 Minor amendment(a) The parties note that section 56A of the EPBC Act provides that the

Commonwealth Minister may make a written determination that an intended draft amendment to a bilateral agreement will not have a significant effect on the operation of the agreement.

(b) Before making a determination under section 56A of the EPBC Act, the Commonwealth Minister must consult with the Queensland Minister(s) to seek agreement on the wording of the amendment.

19.3 Amendment of legislationIf the EPBC Act or provisions of any Queensland Law in which an Accredited Process is set out are subsequently amended, or proposed to be amended, in a manner that would affect the operation of this Agreement, the parties agree to promptly notify each other and the parties will seek to agree as soon as practicable on:

(a) the potential impact of the amendments on the operation of this Agreement; and

(b) whether it is necessary to make another bilateral agreement varying or replacing this Agreement.

20. Freedom of information(a) If a party receives a request that relates to this Agreement under freedom of

information Laws - the Right to Information Act 2009 (Qld) or the Freedom of Information Act 1982 (Cth) - for any documents originating from another party which are not otherwise publicly available, the parties will, subject to the requirements of relevant freedom of information Laws, consult on the release of those documents.

(b) The parties recognise the need for expeditious consultation on such requests so that statutory obligations can be met.

21. General provisions21.1 Relationship to assessment bilateral agreementThis Agreement operates concurrently with the Assessment Bilateral Agreement.

21.2 CounterpartsThis Agreement may be executed in counterparts. All executed counterparts constitute one document.


21.3 NoticeA party giving notice or notifying under this Agreement must do so in writing or by electronic communication.

21.4 Disclosure of InformationNotwithstanding any other provision of this Agreement, the Department may disclose Information about this Agreement required to be reported by the Department.


Schedule 1 – Declared class of actions1. BackgroundSection 46(1) of the EPBC Act relevantly provides that a bilateral agreement may declare that actions in a class of actions specified in the agreement wholly or partly by reference to the fact that their taking has been approved by:

(a) Queensland; or

(b) an agency of Queensland,

in accordance with a bilaterally accredited authorisation process for the purpose of the Agreement do not require approval under Part 9 of the EPBC Act for the purpose of a specified provision of Part 3 of the EPBC Act.

2. Specified provisions of Part 3 of the EPBC Act2.1 For the purposes of the declaration in clause 4.1 of this Agreement, an action does

not require approval under Part 9 of the EPBC Act for:

(a) World Heritage properties (sections 12 and 15A of the EPBC Act);

(b) National Heritage places (sections 15B and 15C of the EPBC Act), but excluding National Heritage places listed because of indigenous or historic National Heritage values;

(c) Ramsar wetlands (sections 16 and 17B of the EPBC Act);

(d) listed threatened species and ecological communities (sections 18 and 18A of the EPBC Act);

(e) listed migratory species (sections 20 and 20A of the EPBC Act);

(f) nuclear actions (sections 21 and 22A of the EPBC Act);

(g) Commonwealth marine environment (sections 23 and 24A of the EPBC Act);

(h) Great Barrier Reef Marine Park (sections 24B and 24C of the EPBC Act);

(i) actions involving Commonwealth land (sections 26 and 27A of the EPBC Act); and

(j) actions involving coal seam gas or large coal mining development where the action has, will have, or is likely to have a significant impact on a water resource (sections 24D and 24E of the EPBC Act),

if the action is in the class of actions specified in Item 4.1(a)(i) below.

2.2 For the purposes of the declaration in clause 4.1 of this Agreement, an action does not require approval under Part 9 of the EPBC Act for:

(a) World Heritage properties (sections 12 and 15A of the EPBC Act);

(b) National Heritage places (sections 15B and 15C of the EPBC Act);

(c) Ramsar wetlands (sections 16 and 17B of the EPBC Act);

(d) listed threatened species and ecological communities (sections 18 and 18A of the EPBC Act);

(e) listed migratory species (sections 20 and 20A of the EPBC Act);


(f) nuclear actions (sections 21 and 22A of the EPBC Act);

(g) Commonwealth marine environment (sections 23 and 24A of the EPBC Act);

(h) Great Barrier Reef Marine Park (sections 24B and 24C of the EPBC Act);

(i) actions involving Commonwealth land (sections 26 and 27A of the EPBC Act); and

(j) actions involving coal seam gas or large coal mining development where the action has, will have, or is likely to have a significant impact on a water resource (sections 24D and 24E of the EPBC Act),

if the action is in the class of actions specified in Item 4.1(a)(ii) below.

Note: Consistent with clause 4.2(c) and Schedule 1 Item 4.2, this Agreement does not apply to actions wholly or partly in a Commonwealth area. This Agreement does apply to actions wholly outside a Commonwealth area which are likely to have a significant impact on the environment in the Commonwealth area or any other matter of NES in the Commonwealth area. “Commonwealth area” is defined in section 525 of the EPBC Act.

3. Authorisation processes3.1 For this Agreement, the following authorisation processes, set out in Queensland

Law, are identified:

(a) the process set out in the laws of Queensland for the authorisation of an action by the grant by the State or an agency of the State of an environmental authority for a resource activity under Chapter 5 of the Environmental Protection Act 1994 (Qld) following preparation of an EIS pursuant to an EIS requirement under Chapter 3 of that Act;

(b) the process set out in the laws of Queensland for the authorisation of an action by the grant by the State or an agency of the State of an environmental authority for a resource activity under Chapter 5 of the Environmental Protection Act 1994 (Qld) following preparation of an EIS that has been approved for voluntary submission under Part 2 of Chapter 3 that Act; and

(c) the process set out in the laws of Queensland for the authorisation of an action by the grant by the State or an agency of the State of an environmental approval for a coordinated project under Part 4A of the State Development and Public Works Organisation Act 1971 (Qld).

4. Class of actions4.1 Categories of actionFor clause 4.1 of this Agreement the following class of actions is specified:

(a) actions that are within one or more of the categories of action in paragraphs (i) and (ii) below and for which all of the requirements in Item 4.2 below are satisfied:

(i) a resource activity within the meaning of Chapter 5 of the Environmental Protection Act 1994 (Qld) where after the Commencement Date an authorisation being an environmental authority for a resource activity is issued by the State or an agency of the State under the authorisation process in Item 3.1(a) or Item 3.1(b) of this Schedule 1; and

(ii) a coordinated project within the meaning of the State Development and Public Works Organisation Act 1971 (Qld), for which a declaration has been made under Part 4A of that Act where after the Commencement Date an authorisation being an environmental approval for a


coordinated project is issued by the State or an agency of the State under the authorisation process in Item 3.1(c) of this Schedule 1.

4.2 Requirements(a) The authorisation referred to in respect of the action in Item 4.1(a) remains in

force for the action.

(b) The action is not an action specified in Item 5 of this Schedule 1.

(c) The action is not subject to a determination of the Commonwealth Minister made under clause 16.4 of this Agreement, or a determination of the Queensland Minister under clause 16.5 of this Agreement.

(d) The action is not an action or part of an action consisting of or involving the construction or operation of any of the following nuclear installations referred to in sections 140A(a) to (d) of the EPBC Act:

(i) a nuclear fabrication plant;

(ii) a nuclear power plant;

(iii) an enrichment plant; and

(iv) a reprocessing facility.

(e) The action is not:

(i) an action located wholly or partly in a Commonwealth area; or

(ii) an action taken by the Commonwealth or a Commonwealth agency.

(f) The action is not an action specified in clause 4.2(d) of the Agreement.

4.3 Great Barrier Reef Marine ParkFor the purposes of section 49 of the EPBC Act, actions specified in Item 4.1(a) of this Schedule 1 include an action located wholly or partly in the Great Barrier Reef Marine Park, unless the action is excluded by Item 4.2 of this Schedule 1.

Note: Consistent with Item 2.1(b) of Schedule 1, the class of action in Item 4.1(a)(i) does not apply to an action that, among other relevant impacts, will, or is likely to have a significant impact on the indigenous or historic National Heritage values of a National Heritage place. Such an action will still require approval under Part 9 of the EPBC Act (both in respect of sections 15B and 15C and all other provisions of Part 3 to which the action applies).

5. Transitional projectsThis Agreement does not apply to a proposed action in Queensland that was referred under Part 7 of the EPBC Act before the Commencement Date and:

(a) the referral of the action had not been withdrawn under section 170C of the EPBC Act or lapsed under section 155 of the EPBC Act; and

(b) the Minister had not made a decision under section 130 and 133 of the EPBC Act in relation to the action.


Schedule 2 – Open access to Information

1. DefinitionsOpen Licence a licence which establishes clear reusage rights of, and

open access to, Public Sector Information such as those in the Creative Commons licences available at www.ausgoal.gov.au/the-ausgoal-licence-suite

Public Sector Information

Information that is created, collected, or funded, by or on behalf of:

(a) the Commonwealth;

(b) a State;

(c) a Territory; or

(d) an agency or authority of the Commonwealth, a State or a Territory.

Restrictive Licence a licence used for material that has some form of limiting or restrictive condition, for example it contains personal, environmental or cultural sensitivity, or confidential Information which has a high risk associated with its release.

2. Background(a) There is a worldwide movement to improve (open) access to Public Sector

Information1. Public Sector Information broadly means Information that is created, collected, or funded, by or on behalf of the Commonwealth, a State or Territory, or an agency or authority of these. Australian governments have committed to open Information in policies and legislation2 and there is practical guidance and assistance for agencies.3

(b) The rationale for open Public Sector Information is that it delivers significant efficiencies and achieves better environmental outcomes by enabling governments, industry and the community to discover, access, reuse, and contribute to Information about the environment including heritage. It will also enable monitoring of the effectiveness of environmental regulation.

(c) Clause 8.2 of this Agreement sets out high level principles about open access to and sharing of environmental Information between the parties. These principles establish policy agreement for open access to Information holdings in order to realise efficiencies in the regulatory system and to enable the parties to build assurance about the effectiveness of environmental decisions.

1 www.ausgoal.gov.au/what_is_open | www.oaic.gov.au/information-policy/information-policy-resources/information-policy-agency-resources/principles-on-open-public-sector-information | www.oecd.org/internet/ieconomy/40826024.pdf2 www.finance.gov.au/policy-guides-procurement/declaration-of-open-government/3 www.ausgoal.gov.au/overview


http://www.ausgoal.gov.au/the-ausgoal-licence-suite

(d) This Schedule provides for the inclusion of guiding protocols which may assist the parties to give practical effect to the policy intent by implementing actions that facilitate the discovery, access and reuse of Information holdings.

3. Information open access protocolsTo give effect to clause 8.2 of this Agreement, the parties agree to use their best endeavours to implement the following protocols:

(a) apply standard, consistent Open Licences to Information, preferably Creative Commons, and apply the least Restrictive Licence possible (that is Creative Commons Attribution);

(b) ensure open access to Information is made clear to third parties, including proponents supplying Information for environmental assessments and under conditions of approval, of the need to apply an Open Licence, preferably a Creative Commons Attribution licence, to their Information as it will become Public Sector Information for the purposes of this Agreement;

(c) ensure that, where Information is licensed under a Restrictive Licence or cannot be published as open, it will be exchanged between parties and subject to appropriate Information management practices and protocols;

(d) publish Information online, in machine readable form using open, standards-based formats;

(e) attach fit-for-purpose, understandable metadata to Information so that it can be easily found and appropriately used;

(f) adopt, use and reference commonly used metadata standards (where these exist) and lodge metadata covering the format, content and provenance in an appropriate open catalogue;

(g) publish Information as open access in a timely manner, preferably as it is collected or generated under this Agreement;

(h) provide alerts to make it easy for users to know that new Information exists;

(i) manage Information such that it is available under open access for at least the life of this Agreement, and any regulated activities initiated under it; and

(j) provide Information on offsets in accordance with clause 6.2(d) of this Agreement.

4. Information scope(a) Examples of Information about environment and heritage include:

(i) listed Matters of NES (including location and condition of critical habitats for species);

(ii) other flora and fauna species including migratory species, ecological communities, wetlands, and marine environments not otherwise Matters of NES;

(iii) threatening processes and prevalence of threats;

(iv) natural and cultural heritage places and sites;

(v) water and air quality; and

(vi) the nature and location of offsets.

(b) Examples of Information about regulated activities include:


(i) the locations and details of referred projects and approved projects;

(ii) public comments and responses;

(iii) Information provided to meet project approval conditions such as environmental monitoring data;

(iv) geographic areas protected in reserves, parks, protected land and ‘corridors’, areas subject to conservation covenants or rehabilitation activities or offsets agreed as part of a project approval; and

(v) geographic areas subject to development planning decisions.


Schedule 3 – Guidance documents matters of National Environmental Significance1. Background1.1 Guidance documents

(a) The Commonwealth develops guidelines, advice, plans and other documents for particular matters of NES, to guide assessments and approvals, as well as long term conservation and management efforts. Queensland will have appropriate regard to, and not act inconsistently with, those documents in accordance with this Agreement, and record how these were considered in decision-making.

(b) The Commonwealth will continue to develop such guidance documents as needed to support the effective operation of bilateral agreements.

(c) The parties note that there will continue to be a need to provide certainty, clarity and consistency in decisions regarding particular matters of NES, including listed threatened species and ecological communities, particularly those that cross State and Territory borders. Documents that support this include:

(i) statutory documents:

(A) approved conservation advices;

(B) recovery plans;

(C) threat abatement plans;

(D) wildlife conservation plans;

(E) advice provided by the Threatened Species Scientific Committee under section 190 of the EPBC Act; and

(F) advice provided by the Threatened Species Scientific Committee under section 189 of the EPBC Act;

(G) management plans; and

(ii) non-statutory documents, such as:

(A) listing advice from the Threatened Species Scientific Committee;

(B) the Commonwealth’s Species Profile and Threats database profiles;

(C) ecological community guidelines and fact sheets; and

(D) Matters of NES significant impact guidelines

1.2 Improving guidance documentsIn consultation with the States and Territories, the Commonwealth will, from time to time, review the guidance documents outlined in Item 1.1 of this Schedule, including to:

(a) revise approved conservation advices, recovery plans, threat abatements plans and other guidance documents for listed threatened species and ecological communities as progress is made on recovery actions and as


knowledge of a species’ or ecological community’s ecology or distribution changes; and

(b) continue to develop a range of strategic responses to the conservation of threatened species and ecological communities including regional recovery planning approaches.

2. Co-operation(a) The Commonwealth will seek the views and co-operation of Queensland (and

other States and Territories) to develop and review the guidance documents identified in Item 1.1 of this Schedule.

(b) Without limiting Item 2(a), Queensland will participate in the consideration and development of guidance documents in the following ways:

(i) priorities for the development of guidance documents will be informed by comments provided by Queensland;

(ii) responsibilities for drafting guidance documents will be discussed between the Department and States and Territories; and

(iii) the Commonwealth will seek endorsement from the relevant States and Territories for the content of guidance documents, subject to the responsibilities of the Commonwealth Minister and the Threatened Species Scientific Committee under the EPBC Act. Disputes about priorities or the content of advice notes will be addressed through best endeavours at resolution. If this fails, the Commonwealth will make a decision on the disputed matter.

3. Streamlining and provision of advice(a) The Commonwealth and Queensland undertake to streamline policy and

guidance documents developed for by each party for assessments and approvals.

(b) All guidance material and relevant policies and plans, identified for the purpose of that clause, will be detailed in the Administrative Arrangements.

(c) Where the Commonwealth holds specific expert advice that could be made available to Queensland to assist with decision making. Queensland may seek and take into account that expert advice as per clause 5.4.


Schedule 4 – Additional streamlining measures1. Background

(a) This Agreement is intended to make a significant contribution to reducing duplication and double-handling of assessment and approval processes while maintaining high environmental standards.

(b) The parties agree that there remains opportunity to develop further streamlining measures to achieve greater process efficiency while maintaining high environmental standards.

2. Additional streamlining measures2.1 Queensland processes to be considered for accreditation

(a) The parties agree to work cooperatively to progress the following additional streamlining measures outlined in Table 1 for the purposes of this Agreement.

Table 1

Streamlining activity Timing

In accordance with clause 6.2(b) of this Agreement, a single Queensland offsets policy which delivers an outcome equivalent to, or better than the EPBC Act Environmental Offsets Policy.

Within 12 months of the Commencement Date

Consider expanding the scope of the declaration in Item 4 of Schedule 1 of this Agreement to cover the broadest range of Queensland approval processes that have the potential to issue approvals that could have significant impacts on matters of NES, including but not limited to:

Sustainable Planning Act 2009 (Qld);

Economic Development Act 2012 (Qld);

Transport Infrastructure Act 1994 (Qld));

Nature Conservation Act 1992 (Qld);

Water Act 2000 (Qld);

Vegetation Management Act 1999 (Qld);

Fisheries Act 1994 (Qld); and

Early 2015


proposed new Ports legislation.

Exploring options to streamline assessments that require a permit under the Environment Protection (Sea Dumping) Act 1981 (Cth).

By end 2014.

Exploring the use of other strategic approaches for the management of Matters of NES, for example conservation agreements.

Within 2 years of the Commencement Date

Any additional streamlining between Queensland and the Great Barrier Reef Marine Park Authority.

Mid 2015

Forward commitments in accordance with the Great Barrier Reef Strategic Assessment.

By end 2014

Continuous improvement of existing guidelines, for example in relation to the Outstanding Universal Value of the Great Barrier Reef.

By end 2014

Explore ways to streamline Indigenous consultation processes given multiple separate legislative consultative regimes, including on environmental impact assessment, heritage and native title (including the future acts regime).

Within 12 months of the Commencement Date

Explore streamlining options for projects assessed under the Environmental Protection Act 1994 (Qld) where national heritage places are listed for their Indigenous or historic heritage.

By end 2014


Execution page

EXECUTED as an Agreement

SIGNED for and on behalf of the Commonwealth of Australia as represented by:

The Hon Greg Hunt MP

Minister for the Environment

Date

SIGNED for and on behalf of Queensland by:

The Hon Andrew Powell MP

Minister for Environment and Heritage Protection

Date


SIGNED for and on behalf of Queensland by:

The Hon Jeff Seeney MP

Deputy Premier, Minister for State Development, Infrastructure and Planning

Date


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