Web viewDRAFT. DRAFT [6109715.013: 13077768_2]Bilateral Agreement under sections 45 and 46, EPBC Act...

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 South Australia(SA)

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Table of contents

Details 3

Provisions 41. General provisions 42. Definitions and interpretation 43. Nature of this Agreement 64. Agreement Period 65. Effect of this Agreement 66. Assessment 77. Decisions on approval 98. Transparency and access to Information 139. Co-operation 1510. Heritage management plans 1611. Administrative Arrangements 1712. Reports 1813. Review 1914. Sharing information – ongoing EPBC matters 1915. Audit 2016. Rectification 2017. Dispute Resolution 2018. Suspension or cancellation 2319. Amendment 2420. Freedom of information 24

Schedule 1 – Declared class of actions 25

Schedule 2 – Open access to Information 36

Schedule 3 – Guidance documents for species and ecological communities 39

Schedule 4 – Additional streamlining measures 41

Schedule 5 - Section 3, Intergovernmental Agreement on the Environment 1992 44

Execution page 45

Bilateral Agreement under sections 45 and 46, EPBC Act 2[6109715.013: 13077768_2]

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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 State of South Australia (SA).

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 South Australia are committed to cooperative efforts to strengthen intergovernmental cooperation on the environment and to minimise costs to business while maintaining high environmental standards.

ObjectsC. Under the Memorandum of Understanding dated 13 December 2013, the

Commonwealth and South Australia 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.

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

a. identifying the South Australian authorisation processes that may 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.

E. This Agreement aims to:

a. ensure Australia complies fully with all its international environmental obligations relevant to Matters of NES;

b. ensure relevant 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 processes of the Commonwealth and South Australia.

[6109715.013: 13077768_2]Bilateral Agreement under sections 45 and 46, EPBC Act 3

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F. 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. General provisions1.1 Relationship to assessment bilateral agreement

This Agreement operates concurrently with a bilateral agreement in force with South Australia in relation to environmental assessment.

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

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

2. Definitions and interpretation2.1 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:

Accreditation Date in relation to an action that is or may be approved in accordance with a process specified in Item 3 of Schedule 1, the date on which the relevant process is accredited by the Commonwealth Minister under section 46 of the EPBC Act for the purposes of this Agreement.

Accredited Process a bilaterally accredited authorisation process accredited for the purpose of the EPBC Act and this Agreement by the Commonwealth Minister.

Administrative Arrangements

administrative arrangements made under clause 11.1 of this Agreement.

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

Assessment Report A report prepared by or on behalf of the decision-maker to inform a decision made under an Accredited Process.


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Chief Executive of the relevant SA Department

the Chief Executive of the SA Department responsible for administering the legislation in which an Accredited Process is set out in whole or part as defined in Schedule 1.

Commencement Date At a date to be agreed by the parties, noting that this agreement does not take operative effect until the SA authorisation processes are accredited by the Commonwealth Minister.

Commonwealth Minister

the Minister administering the EPBC Act and, where relevant, including a delegate of the Minister.

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

EPBC Act 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.

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 (national environmental significance)

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

South Australian Minister or SA Minister

the relevant South Australian Minister administering the legislation in which an Accredited Process is set out in whole or part (and includes a delegate of the Minister).

Lead SA Minister the SA Minister notified in writing by the Premier of South Australia to the Commonwealth Minister.

Schedule a schedule to this Agreement.

Senior Officers’ Committee

the committee established under clause 11.2.

2.2 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;


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(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.

2.3 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 2-4 in their order of appearance.

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

3. 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.

4. Agreement PeriodThis Agreement commences on the Commencement Date and continues until it is rescinded or revoked by further agreement between the parties or it is cancelled 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. The operation of provisions of this Agreement may also be suspended under the EPBC Act for a period of time specified in a notice of suspension.

Note: Once executed by both Parties this Agreement operates in relation to each Accredited Process set out in Item 3 of Schedule 1 once that Accredited Process has been accredited by the Commonwealth Minister under section 46 of the EPBC Act.

5. Effect of this Agreement5.1 DeclarationSubject to clause 5.2, 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


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Schedule 1 to this Agreement if the action is in the class of actions specified in Item 4 of Schedule 1 to this Agreement.

5.2 Scope(a) Clause 5.1 applies to an action which occurs within South Australia, including

coastal waters.

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

(c) Consistent with section 49 of the EPBC Act, the provisions of this Agreement do not have effect in relation to

(i) an action in a Commonwealth area;

(ii) where an action is not wholly within a Commonwealth area – that part of the action that is in a Commonwealth area; or

(iii) an action taken by the Commonwealth or a Commonwealth agency;

unless expressly provided for in the class of actions specified in Item 4 of Schedule 1 to this Agreement.

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

(i) the taking of that action was:

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

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.

(B) determined to be clearly unacceptable under Division 1A of Part 7; or

(C) the subject of a decision made under sections 75 and 77A of the EPBC Act (a component decision), that a particular provision of Part 3 of the EPBC Act is not a controlling provision for the action because the Minister believes the action will be taken in a particular manner; and

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

(e) To avoid doubt, the declaration in clause 5.1 does not apply to an action that is substantially the same as an action the taking of which was refused, or determined to be clearly unacceptable, under the EPBC Act, as referred to in clause 5.2(d).

6. Assessment6.1 Identification of impacts on Matters of NES

(a) If approval is sought for an action under an Accredited Process, South Australia will:

(i) 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; and


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(ii) require the proponent of the action to identify the likely impacts on each Matter of NES.

(b) If approval is sought other than under an Accredited Process, South Australia 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.

Note 1: The notification under clauses 6.1(a)(i) 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 6.1(a)(ii) may be included in guidelines or standard templates for applications.

6.2 Undertaking to assess impacts on Matters of NESSouth Australia 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.

Note: ‘Impacts’ include direct, indirect and cumulative impacts, as defined in section 527E of the EPBC Act.

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

(a) South Australia will, in undertaking assessments for proposed actions, 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 actions and, if so, under what conditions. The extent of the assessment will be proportionate to the level of likely environmental risk; and

(b) South Australia will ensure that:

(i) all relevant impacts of the action on Matters of NES are identified separately in the assessment process. This includes determining which of those matters of NES may or are likely to be significantly impacted, and for each matter of NES that may or is likely to be significantly impacted by the action the impacts must be explicitly assessed;

(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 those matters’ range; andNote: For example, clause 6.3(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 publicly accessible source identified (noting exemptions under Item 5, Schedule 2), in the Assessment Report.

6.4 Seeking expert advice(a) South Australia may seek, and take into account, the expert advice of the

Supervising Scientist on a proposed action that is a nuclear action.


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

(b) South Australia may seek advice from the Commonwealth on Australia’s international obligations as they 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.

(c) In relation to coal seam gas and large coal mining developments, South Australia 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 in a transparent manner.

(d) South Australia may seek advice from expert advisory bodies established under the EPBC Act or from the Department, through the Senior Officers’ Committee, with details to be set out in the Administrative Arrangements.

6.5 Statutory undertakingWhere an action:

(a) is taken or proposed to be taken in South Australia;

(b) is covered by the declaration in clause 5.1; and

(c) is:

(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 the 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,

South Australia 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.

7. Decisions on approval7.1 Unacceptable or unsustainable impacts on MNES

(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.

7.2 Avoid, mitigate, offset hierarchy(a) To avoid unacceptable or unsustainable impacts on Matters of NES, South

Australia will:


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(i) apply the ‘avoid, mitigate, offset’ hierarchy of principles for guiding the assessment and approval of a proposed action under an Accredited Process; and

(ii) if a relevant impact cannot be offset consistent with clause 7.3, South Australia will take the first step in the dispute resolution process set out in clause 17.1(a) to negotiate with the Commonwealth.

(b) For the purposes of clause 7.2(a)(i) of this Agreement, the ‘avoid, mitigate, offset’ hierarchy of principles are the following in order from clause 7.2(b)(i) to (iii):

(i) significant impacts on Matters of NES should be avoided; 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; 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, South Australia will consider offsets in accordance with clause 7.3 for those impacts.

7.3 Offsets(a) For the purposes of clause 7.2(b), South Australia will:

(i) apply a relevant South Australian offsets policy where the Commonwealth Environment Minister is satisfied that the relevant South Australian offsets policy meets the requirements in clause 7.3(b); or

(ii) apply the EPBC Act Environmental Offsets Policy (including application of the offset assessment guide where it applies), where a South Australian offsets policy does not apply; or

(iii)

(A) where the EPBC Act Environmental Offsets Policy applies, and the relevant decision maker considers that a proposed offset is consistent with the EPBC Act Environmental Offsets Policy, but not necessarily with the outcome indicated by the EPBC Act offsets assessment guide because of the unique nature of the impact or a proposed offset or the nature of the project overall; and

Note: For example, when an indirect offset such as a research program targeting a disease may provide a greater benefit to the protected matter, or targeting a key threatening process may provider a greater benefit.

(B) the Commonwealth 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; South Australia may apply the proposed offset referred to in clause 7.2(a)(iii)(A).

Note: It is not anticipated that the circumstances described in clause 7.2(a)(iii) will arise other than in exceptional circumstances. Where these circumstances do arise, they should be raised through the Senior Officials’ Committee.


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(b) For the purposes of clause 7.3(a)(i) and in accordance with Schedule 4 of this Agreement, the parties agree to work cooperatively towards streamlining offsets under the South Australian offsets policy framework. The Commonwealth Environment Minister may agree to the use of a relevant South Australian offsets policy, once satisfied that the policy will deliver an outcome equivalent to, or better than, the outcome that would apply if the EPBC Act Environmental Offsets Policy were applied (including application of the offsets assessment guide where it applies).

7.4 Approvals not inconsistent with plans, etcTo ensure that actions 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 the relevant actions, and if so, under what conditions, 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) Convention on Biological Diversity (Biodiversity Convention);

(B) Convention on Conservation of Nature in the South Pacific (Apia Convention); and

(C) Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); or

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

(e) for a listed migratory species:

(i) Australia’s obligations under:

(A) Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention);

(B) China-Australia Migratory Bird Agreement (CAMBA);


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(C) Japan-Australia Migratory Bird Agreement (JAMBA);

(D) Republic of Korea-Australia Migratory Bird Agreement (ROKAMBA); or

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

as in force from time to time.

Note: South Australia may provide notice to the Commonwealth if it proposes to make a decision that is different to the requirements of this clause 7.3 and, if so, for escalation procedures to apply, as provided for by clause 17.

7.5 Consideration of policies and guidelinesTo ensure that actions 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 those actions, and deciding whether to approve those actions and, if so, under what conditions, South Australia will ensure that relevant decision-makers:

(a) have regard to any relevant bioregional plans and management plans;

(b) take into account any Information on the relevant impacts of the actions that was given to the Commonwealth Minister under an agreement under Part 10 of the EPBC Act;

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

(d) take into account such other policies, advice or guidelines relating to relevant Matters of NES, published from time to time by the Commonwealth and attached to the Administrative Arrangements; and

(e) where relevant - record how those plans, policies or guidelines were taken into account.

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.

7.6 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, South Australia will ensure that relevant decision-makers, 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 (Schedule 5).

7.7 Approval conditions, outcomes or objectivesIf:

(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 for the action must explicitly identify those conditions, outcomes or objectives (if any) which relate to Matters of NES.

Note: In relation to exploration Programs for Environmental Protection and Rehabilitation for the SA Mining Act 1971 only, instead of conditions being applied, an exploration Program for Environmental Protection and Rehabilitation will not be approved until it meets the requirements of the Act, Mining Regulations 2011 and any relevant Ministerial Determinations. These requirements would include adequately addressing a significant impact on a matter of NES.


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8. Transparency and access to Information8.1 Indigenous peoples

(a) The parties agree that, in relation to an action that is likely to have a significant impact on any Matters of NES, which may be approved in accordance with an Accredited Process under clause 5.1;

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

(ii) the decision whether or not to 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, South Australia will:

(i) require that the proponent takes all reasonable steps to obtain the views of native title holders or claimants and Indigenous land holders in relation to any proposal under assessment that is likely to have a significant impact on any Matter of NES that relates to Indigenous heritage value or Indigenous tradition as defined in the EPBC Act* or that will occur on or affect land or waters that may be subject to native title or are Indigenous owned or held lands.

(ii) ensure that the proponent treats the views of Indigenous peoples as the primary source of information in relation to the indigenous heritage value, or indigenous tradition as defined in the EPBC Act* 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.

*Note: this may include impacts on biodiversity where relevant to Indigenous heritage value or Indigenous tradition.

(c) In relation to actions assessed under the Mining Act 1971 (SA), the requirements in clauses 8.1(b)(i) and 8.1(b)(ii) are met by the processes undertaken under Part 9B of the Mining Act 1971 (SA) or by entering into an Indigenous land use agreement pursuant to the Native Title Act 1993 (Cth) in relation to native title land or in the case of Indigenous owned or held lands, by following processes prescribed under the applicable legislation, together with the application of the Aboriginal Heritage Act 1988 (SA), with respect to all such processes and all South Australian land.

(d) In relation to actions assessed under the Petroleum and Geothermal Energy Act 2000 (SA), the requirements in clauses 8.1(b)(i) and 8.1(b)(ii) are satisfied by the requirement for the proponent to enter into an indigenous land use agreement or right to negotiate an agreement before a licence can be granted under the Petroleum and Geothermal Energy Act 2000 (SA), in relation to native title land and in the case of Indigenous owned or held lands, by following processes prescribed under the applicable legislation, together with the application of the Aboriginal Heritage Act 1988 (SA), with respect to all such processes and all South Australian land.


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(e) For the purposes of this clause 8.1, Indigenous owned or held lands include those lands established or administered under the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), Maralinga Tjarutja Land Rights Act 1984 (SA) and Aboriginal Lands Trust Act 2013 (SA), or future legislation that confers Indigenous title on other land.

(f) The Commonwealth will consult with South Australia before amending or adopting guidelines referenced in clause 8.1(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.

8.2 Public access to documentation(a) South Australia agrees:

(i) to make available to the public relevant documents about each assessment under the approval bilateral process, subject to exemptions in 8.2(b), so that groups with particular communication needs have an adequate opportunity to comment on actions assessed in the manner specified in Schedule 1 including the following, where relevant:

(A) referral documentation (however described);

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

(C) draft and final environmental impact assessment documentation;

(D) public comments on any of the above.

(ii) publish Information used by decision-makers to assist decision-makers to exercise their functions or powers under an Accredited Process on the Internet, before that Information is used by the decision-maker; and Note: For example: Information providing rules, guidelines, practices or precedents relating to assessment and approval decisions.

(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 (or earlier).

(b) Clause 8.2(a) will not be taken to have been breached where the publication of the Information is prohibited under South Australian 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 a risk of damage to the Matter of NES to which the Information relates.

(c) For the avoidance of doubt, where clause 8.2(b) applies, South Australia will comply with clauses 8.2(a) to the extent it is possible to do so without disclosing


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that part of the Information or material that is exempt from publication under clause 8.2(b).Where Information is made 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.

8.3 Public access – particular needs groupsSouth Australia will, in providing public access to assessment and approval documentation, make special arrangements, as appropriate, to ensure affected groups with particular communication needs have an adequate opportunity to comment on actions assessed and approved in accordance with an Accredited Process.

Note: Groups with particular communication needs may include those with a vision or hearing impairment; who are illiterate or for whom English is a second language; and who, because of a disability, have difficulty accessing paper documentation or using a computer.

8.4 Public commentsSouth Australia will accept and consider comments in relation to an action to which this Agreement applies from persons located anywhere within and outside of South Australia where the comments are properly made in accordance with the Accredited Process.

9. Co-operation9.1 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 South Australia and redirect the proponent of the action to South Australia for a decision on whether it requires assessment for its likely impacts on Matters of NES.

9.2 Open access to InformationThis clause operates in accordance with the protocols set out in Schedule 2.

(a) To improve environmental outcomes and maximise efficiency for business and government, and ensure Information on which regulatory decisions are made is fit for purpose, the parties commit to the following principles for open access to Information about the environment and regulated activities:

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

(ii) Information is published under an Open Licence 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 appropriate resolution and accuracy while upholding relevant environmentally sensitive data handling policies; and

(v) Information is released at minimal cost to users. If the information released is restricted to self-help mechanisms such as digital forms on the web then this will be at no cost to the user. However, in relation to resource intensive requests for large volumes of data or complex filtered data sets charges may apply to the user.

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


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(c) The parties will seek to give practical effect to the principles in clause 9.2(a), by implementing the protocols in Schedule 2.

9.3 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 9.3, 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 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 as follows;

(A) approved conservation advice;

(B) recovery plans;

(C) threat abatement plans;

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

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

(F) ecological community guidelines and fact sheets;

(G) Matters of NES significant impact guidelines; and

(H) survey guidelines; 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 South Australia.

10. Heritage management plansThe 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 South Australia is listed; and

(b) to prepare and implement, according to World and National Heritage management 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.


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11. Administrative Arrangements11.1 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 South Australia, 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 9.2;

by the Commencement Date.

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

a Senior Officers’ Committee to oversee 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 for the Senior Officers’ Committee will be set out in the Administrative Arrangements.

(d) Without limiting the terms of reference for the Senior Officers’ Committee, the Senior Officers’ Committee will in each year after the Commencement Date, other than in a year in which a review is undertaken under clause 13, evaluate the operation of this Agreement (which may include an evaluation done by an audit or other review).

(e) The parties may agree, at any time, that an evaluation under clause 11.2(d) is not to be undertaken in a particular year or years.

(f) An evaluation, under clause 11.2(d), may include, but is not limited to, an evaluation:

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

(ii) the operation of this Agreement;

against key performance indicators identified for the purpose of this clause in the Administrative Arrangements.

(g) The parties agree that a report of the evaluation will be published on the Department’s website as soon as practicable after it is completed. The parties will agree on the content of the report to be published.

(h) A transitional review will be carried out by the Senior Officers’ Committee 12 months after the Commencement Date, details of which will be set out in the Administrative Arrangements.

Note: The parties intend that the Senior Officers’ Committee (SOC) will have alternating Chairs; and will deal with both specific matters arising, including matters in dispute, but also be responsible for the ongoing operation of the Agreement, including making recommendations to governments on a continuous improvement basis, and considering the implications of any legislative or other system changes proposed by either party. The SOC may be the same that is established for the assessment bilateral agreement.


DRAFT

12. Reports12.1 Reports to the Commonwealth

(a) At a time agreed between the parties (or such other time notified to South Australia in writing by the Commonwealth), South Australia will provide reports to the Commonwealth for the purpose of the Department’s annual reporting obligations under the EPBC Act in relation to matters of NES that are significantly impacted, including an analysis of how this Agreement has been implemented.

(b) Reports provided to the Commonwealth under clause 12.1 will include, at a minimum:

(i) Information on the number of 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 completed in the preceding 12 months in accordance with this Agreement;

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

(iv) operation of the South Australian 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) Information on how any public complaints relating to the Accredited Processes were addressed; and

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

(c) South Australia 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 South Australian systems and processes.

(e) For the purpose of meeting the requirements of clause 12.1(a) of this Agreement, a separate report is not required to be prepared by South Australia if the required information specified in clause 12.1(b) is publicly available in a form that is appropriately accessible and adapted to allow the Commonwealth to efficiently meet all relevant reporting obligations.

12.2 Additional Information(a) Each party will respond promptly to any reasonable request from the other party

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

(b) Each party may from time to time, request the provision of copies of studies, reports and other information (including non-published information) in addition to the reports required under clause 17.1, where those studies, reports or other Information are in the possession of the other party.

(c) Each party will use its best endeavours to minimise the frequency and scope of further requests for information required.


DRAFT

13. Review13.1 5 year reviews

(a) 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.

(b) Each review of this Agreement will be carried out as agreed by the Senior Officers’ Committee.

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

(d) The Commonwealth Minister must publish the report of each review in accordance with the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth), and give a copy of the report of each review to South Australia, as soon as practicable after the review is completed.

13.2 Third party studies(a) A review under clause 13.1 may include studies, evaluations and other activities

that may be conducted by third parties, 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 the relevant government offices to undertake analysis and evaluation of the Agreement; and

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

14. Sharing information – ongoing EPBC matters(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 will use their best endeavours 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 approved by the Commonwealth Minister before the Commencement Date).

(c) The parties will make best endeavours to notify each other of actions in South Australia 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 South Australia before commencing enforcement action against a person for a contravention of Parts 3 to 9 of the EPBC Act for an action in South Australia.

(e) South Australia 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.


DRAFT

(f) Recognising that MNES in South Australia may be affected by an activity undertaken outside of South Australia the relevant South Australian Minister may write to the Commonwealth Environment Minister in regard to any concerns they may have in relation to impacts on MNES from activities outside of South Australia.Note: If a serious issue arises under clause 14(f) that cannot be resolved then the dispute resolution process under clause 17 can be initiated.

15. Audit15.1 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.

15.2 South Australian Auditor-GeneralThe parties recognise that, under the Public Finance and Audit Act 1987 (SA), the South Australian Auditor-General may audit the operations of the South Australian public sector in relation to this Agreement.

16. RectificationSouth Australia is responsible for following the Accredited Process in relation to an action to which this Agreement applies, and addressing any issues that arise out of the process.

17. Dispute Resolution17.1 Dispute resolution process

(a) Acting in a spirit of cooperation, the parties agree that the process set out below is the primary mechanism for resolving any dispute or concern arising during the course of this Agreement:

(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;

(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:

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

(B) between the Secretary of the Commonwealth Environment Department and the Chief Executive of the relevant SA Department;

(C) between the Commonwealth Minister and the relevant South Australian Minister;

(D) by a notice issued under clause 17.2;

(E) by a determination by the Commonwealth under clause 17.4 or by the relevant South Australian Minister under clause 17.5;


DRAFT

(F) by the process referred to in clause 18.

(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).

17.2 Notice of particular interest(a) If the Commonwealth considers that, based on substantial information, that the

taking of a proposed action being assessed in accordance with an Accredited Process may result in serious or irreversible environmental damage to a Matter of NES, the Secretary of the Department may issue a notice of particular interest to South Australia in relation to that action.

(b) Before issuing a notice under clause 17.2(a), the parties will consult the relevant proponent, and seek to resolve the matter consistent with 17.1(a) (i)-(iv)(C).

(c) The Notice, the reasons for issuing the notice, and a description of the information on which the notice was based will be published on the Department’s website as soon as practicable after issuing a notice.

(d) South Australia agrees to respond within 10 business days, or within another timeframe agreed between the Parties in consultation with the relevant proponent, to any notice issued under clause 17.2(a) including a response to the reasons for issuing the notice and providing any additional relevant information.

(e) Subsequent to a notice being issued under clause 17.2(a), if the Secretary considers that the matter has been adequately resolved, a statement to that effect will be published on the Department’s website within 10 business days of the matter being resolved.

17.3 Notice of proposed decision(a) Where the South Australian Minister or another relevant decision-maker of South

Australia:

(i) is considering or proposing to approve an action that may result in serious or irreversible environmental damage to a Matter of NES; and

(ii) the decision may substantially not meet the requirements for decision-making defined in clause 17.6;

the South Australian Minister 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.

17.4 Determination by the Commonwealth Minister(a) Where the Commonwealth Minister considers that the relevant South Australian

decision-maker:

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

(ii) the decision may substantially not meet the requirements for decision-making as defined in clause 17.6,

the Commonwealth Minister may issue a Notice of Determination to the relevant SA Minister advising that the action is not within the class of actions to which clause 5.1 applies, regardless of whether a notice has been issued under clause 17.2(a) or 17.3(a).


DRAFT

(b) The Commonwealth Minister cannot make a determination under clause 17.4(a) in relation to a particular action if that action has already been approved in accordance with an Accredited Process.

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

(d) A notice of the determination under clause 17.4(a), including reasons for issuing the determination, will be published on the Department’s website, as soon as practicable after issuing the notice.

(e) The Commonwealth Minister does not have a duty to consider whether to make a determination under clause 17.4(a) in respect of any action.

17.5 Determination by the South Australian Minister(a) Where the South Australian Minister or another relevant decision-maker of South

Australia:

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

(ii) the decision may substantially not meet the requirements for decision-making as defined in clause 17.6,

the relevant South Australian Minister may issue a Notice of Determination to the Commonwealth advising that the action is not within the class of actions to which clause 5.1 applies regardless of whether a notice has been issued under clause 17.3.

(b) The South Australian Minister cannot make a determination under clause 17.5(a) in relation to a particular action if that action has already been approved in accordance with an Accredited Process.

(c) The parties will 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 under clause 17.5(a), including reasons for issuing the determination, will be published on the Department’s website, as soon as practicable after receiving the notice.

The South Australian Minister does not have a duty to consider whether to make a determination under clause 17.5(a) in respect of any action.

17.6 Requirements for decision-makingFor the purpose of clause 17 of this Agreement, a decision may substantially not meet requirements for decision-making if that decision would substantially not meet the requirements for decision-making in clauses 7.1 – 7.5 inclusive (decisions on approval) of this Agreement.

Note: Clause 7.1-7.5 would require genuine consideration of the matters required for decision-making. As such, and consistent with general principles of administrative decision-making, decisions affected by, for example, bias would not meet these requirements.


DRAFT

17.7 Obligations continueDespite the existence of a dispute or concern, or the issue of a notice or a determination by either party under clauses 17.2-17.5, both parties must continue to perform their respective obligations under this Agreement, except to the extent:

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

(b) that those obligations are affected by a determination by either party under clause 17.2 to 17.3

18. Suspension or cancellation18.1 By Commonwealth MinisterSections 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 the 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.

18.2 At the request of the relevant South Australian Minister(a) Section 63 of the EPBC Act requires the Commonwealth Minister to cancel or

suspend all or part of this Agreement if the relevant SA Minister requests a notice of cancellation or suspension in accordance with this Agreement.

(b) A request by the relevant SA 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 relevant SA Minister is not satisfied that the Commonwealth has complied or will comply with this Agreement; or

(ii) the request is made on the grounds that the relevant SA Minister is not satisfied that:

(A) the objects of this Agreement specified in clause C to F of this Agreement are being achieved; or

(B) the Commonwealth has not given effect, or will not give effect, to the Agreement in a way that accords with the objects of the EPBC Act and the objects of Part 5 of Chapter 3 of that Act; or

(iii) the request is made on the grounds that relevant SA legislation or administrative processes have been amended or are proposed to be amended and the relevant SA Minister is satisfied that objects specified in clauses C to F of this Agreement will no longer be achieved.

(iv) Before making the request, the relevant SA 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.


DRAFT

19. Amendment19.1 Continuous improvementThe 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 seek agreement with the relevant South Australian Minister on the wording of the amendment.

19.3 Amendment of legislationIf the EPBC Act or other relevant South Australian legislation or Accredited Process is 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 any request, including under freedom of information laws, 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.

20.1 Disclosure of InformationNotwithstanding any other provision of this Agreement, the Department or South Australia may disclose Information about this Agreement required to be reported by the Department and South Australia.


DRAFT

Schedule 1 – Declared class of actions1. Background1.1 Background

Section 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 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.

1.2 InterpretationIn this Schedule:

(a) "Cultana Expansion Area" is defined by the following GIS co-ordinates:

Latitude Longitude

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DRAFT

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DRAFT

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(b) "Cultana Training Area" is defined by the following GIS co-ordinates:

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DRAFT

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DRAFT

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DRAFT

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DRAFT

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DRAFT

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(c) each term has the same meaning as it has in the SA Act that is referred to in connection with the term;

(d) "Governor" has the same meaning as in the Acts Interpretation Act 1915 (SA);

(e) "Item" means an item of this Schedule 1;

(f) "Mining Act" means the Mining Act 1971 (SA); and

(g) "PGE Act" means the Petroleum and Geothermal Energy Act 2000 (SA).

2. Specified provisions of Part 3 of the EPBC ActFor the purposes of the declaration in clause 5.1 of this Agreement, this Item 2 specifies the relevant provision of Part 3 of the EPBC Act for which an approval under Part 9 of the EPBC Act is not required if the action concerned is in a class of actions specified in Item 4.

2.2 An action in a class specified in Items 4.1(a), (b), (c) and (d) does not require approval under Part 9 of the EPBC Act for the purpose of the following provisions of Part 3 of the EPBC Act:

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

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

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

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

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

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

(g) sections 23 and 24A (Commonwealth marine environment);

(h) sections 24D and 24E (actions involving coal seam gas development or large mining development with significant impact on water resources); and

(i) section 26 and 27A of the EPBC Act (Commonwealth land).

Note: Consistent with Item 4.5(a) of schedule 1, this Agreement does not apply to actions in the Commonwealth marine area or on Commonwealth land, unless expressed otherwise. This Agreement does apply to actions outside the Commonwealth marine area or outside Commonwealth land which are likely to, respectively, have a significant impact on the Commonwealth marine environment or Commonwealth land.

3. Authorisation processesFor the purposes of this Agreement, the following Accredited Processes, and the Law of South Australia in which they are set out, are identified:

(a) the process set out in the Law of South Australia for the authorisation of an action by the grant of:

(i) an exploration licence under Part 5 of the Mining Act;

(ii) a mining lease under Part 6 of the Mining Act, whether or not the assessment process includes an environmental assessment under Part 4, Division 2 of the Development Act by virtue of the operation of section 75 of the Development Act;

(iii) a retention lease under Part 6A of the Mining Act; or


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(iv) a miscellaneous purpose licence under Part 8 of the Mining Act, whether or not the assessment process includes an environmental assessment under Part 4, Division 2 of the Development Act by virtue of the operation of section 75 of the Development Act,

in each case together with the approval of a program (or revised program) under Part 10A of the Mining Act in relation to that action (except where the Matter of NES has been considered under the relevant lease or licence application);

(b) the process set out in the Law of South Australia for the authorisation of an action by the approval of a program (or revised program) under Part 10A of the Mining Act in relation to that action;note: the specified class of actions 4.1(b) and this authorisation process 3(b) only relate to actions to be undertaken on the Cultana Training Area.

(c) the process set out in the Law of South Australia for the authorisation of an action, that has been classified by the SA Minister as a medium impact activity under section 98(1)(b) of the PGE Act, by the approval of a statement (or revised statement) of environmental objectives under section 102(4) of the PGE Act; and

(d) the process set out in the Law of South Australia for the authorisation of an action, that has been classified by the SA Minister as a high impact activity under section 98(1)(c) of the PGE Act and for which an environmental impact assessment has been prepared under Part 8 of the Development Act, by the approval of a statement (or revised statement) of environmental objectives under section 103 of the PGE Act.

Note: The process set out in the law of South Australia for the authorisation of an action that has been classified by the SA Minister as a low impact activity under section 98(1)(a) of the PGE Act is not an accredited process under this Agreement. This is because a low impact activity does not undergo a process under the PGE Act that meets the accredited criteria for a MNES. A project that is classified as low impact is, by definition under the assessment criteria, unlikely to significantly impact on a matter of NES.

4. Class of actions4.1 Specified class of actions

For the purpose of clause 5.1 of this Agreement, subject to Item 4.2, Item 4.3, Item 4.4 and Item 4.5, the following classes of actions are specified:

(a) actions:

(i) that are authorised to be undertaken by an approval of a program by the SA Minister under the authorisation process described in Item 3(a); and

(ii) where the program was received by the SA Minister under section 70B of the Mining Act after the Accreditation Date and remains in force;

(b) actions:

(i) that are authorised to be undertaken by an approval of a program by the SA Minister under the authorisation process described in Item 3(b);

(ii) where the program was received by the SA Minister under section 70B of the Mining Act after the Accreditation Date and remains in force; and

(iii) that are authorised by the grant of a lease or licence under section 51(1) of the Lands Acquisition Act 1955 (Cth) to mine for minerals, which lease or licence remains in force;


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note: the authorisation process described in Item 3(b) and this specified class of action 4.1(b) relate only to actions to be undertaken on the Cultana Training Area.

(c) actions:

(i) that are authorised to be undertaken by an approval of a statement (or revised statement) of environmental objectives under section 102(4) of the PGE Act under the authorisation process described in Item 3(c);

(ii) where the statement (or revised statement) of environmental objectives was provided to the SA Minister for approval after the Accreditation Date; and

(iii) where the approved statement (or revised statement) of environmental objectives remains in force for the action under the PGE Act;

(d) actions:

(i) that are authorised to be undertaken by an approval of a statement (or revised statement) of environmental objectives by the SA Minister under the authorisation process described in Item 3(c);

(ii) where the statement (or revised statement) of environmental objectives was provided to the SA Minister for approval after the Accreditation Date and remains in force;

(iii) that are authorised by the grant of a lease or licence under section 51(1) of the Lands Acquisition Act 1955 (Cth) to mine for minerals, which lease or licence remains in force;

note: the process described in this specified class of action 4.1(d) relate only to actions to be undertaken on the Cultana Training Area.

(e) actions:

(i) that are authorised to be undertaken by an approval of a statement (or revised statement) of environmental objectives under section 103 of the PGE Act under the authorisation process described in Item 3(d);

(ii) where the statement (or revised statement) of environmental objectives was provided to the SA Minister for approval after the Accreditation Date; and

(iii) where the approved statement (or revised statement) of environmental objectives remains in force for the action under the PGE Act.

(f) actions:

(i) that are authorised to be undertaken by an approval of a statement (or revised statement) of environmental objectives by the SA Minister under the authorisation process described in Item 3(d);

(ii) where the statement (or revised statement) of environmental objectives was provided to the SA Minister for approval after the Accreditation Date and remains in force

(iii) that are authorised by the grant of a lease or licence under section 51(1) of the Lands Acquisition Act 1955 (Cth) to mine for metals or minerals, which lease or licence remains in force.

note: the process described in this specified class of action 4.1(f) relate only to actions to be undertaken on the Cultana Training Area.


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4.2 Actions undertaken on the Cultana Training AreaThe classes of action specified in Item 4.1(d) and Item 4.1(f) do apply in relation to petroleum extraction, but do not apply to activity relating to geothermal energy production, gas storage, or the construction or operation of pipelines.

4.3 Consultation on exploration licences and Part 10A programs(a) For the Authorisation process described in item 3(a) (in respect of a program that

is approved under Part 10A of the Mining Act following the grant of an exploration licence under Part 5 of the Mining Act or a revised program that is approved under Part 10A of the Mining Act) and 3(b) (in respect of a program or revised program that is approved under Part 10A of the Mining Act) of this schedule 1:

(i) draft assessment documentation about each assessment in relation to that program or revised program must have been made available to the public and released for public comment; and

(ii) the public must have been given at least 14 days to provide comments to the consent authority.

note: these consultation requirements apply only to those programs or revised programs under Part 10A of the Mining Act that are assessed and approved in accordance with this bilateral agreement.

4.4 Nuclear actionsItem 4.1 does not apply to an action consisting of or involving the construction or operation of a nuclear installation referred to in section 140A(a) to (d) of the EPBC Act.

4.5 Commonwealth areas(a) Except as provided for in Item 4.5(b), and consistent with section 49 of the EPBC

Act, Item 4.1 does not apply to an action within a Commonwealth area.

(b) It is expressly provided that despite Item 4.5(a), each class of actions specified in Item 4.1 extends and applies to:

(i) an action taken outside a Commonwealth area which is likely to have a significant impact on that area; and

(ii) an action that is a mining or resource proposal within either or both of the Cultana Training Area and Cultana Expansion Area,

and the declaration in clause 5.1 applies accordingly.

4.6 Further exclusionsItem 4.1 does not apply to an action that is:

(a) subject to a determination of the Commonwealth Minister made under clause 17.4(a) of this Agreement, or a determination of the SA Minister (or another relevant decision-maker of South Australia) made under clause 17.5(a) of this Agreement, that it is not within the class of actions to which the declaration in clause 5.1 of this Agreement applies; or

(b) an action to which the declaration in clause 5.1 of this Agreement does not apply because of the operation of clause 5.2 of this Agreement; or

(c) was referred under Part 7 of the EPBC Act before the Accreditation Date (transitional projects) unless the referral of the proposed action has been or is withdrawn under section 170C of the EPBC Act, or has lapsed or lapses under section 155 of the EPBC Act.


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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 agencies3.

(b) The rationale for open public sector information (as described in the footnote references) is that it has the potential to deliver significant efficiencies and achieve better environmental outcomes by enabling governments, industry and the community to discover, access, reuse, and contribute to information about the environment and heritage. It could also enable monitoring of the effectiveness of environmental regulation.

(c) Open information in the environmental domain brings a range of benefits, including:

(i) Enabling business to access existing information rather than duplicate it;

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


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(ii) Reducing transactional costs for all stakeholders by removing the need to negotiate licences to access information;

3. Information open access protocolsTo give effect to clause 9.2 of this Agreement, the parties will endeavour 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 it is made clear to third parties, including proponents supplying information for environmental assessments and under conditions of approval, of the intention to apply an Open Licence, preferably a Creative Commons Attribution licence, to their information so that 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 high quality, 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 bilateral 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 bilateral agreement, and any regulated activities initiated under it.

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

things:

(i) listed matters of national environmental significance (including location and condition of critical habitats for species)

(ii) other flora and fauna species including migratory species, ecological communities, wetlands, cultural and natural heritage places, marine environments

(iii) threatening processes and prevalence of threats

(iv) natural and cultural heritage places and sites

(v) water and air quality

(vi) nature and location of offsets

(b) Examples of Information about regulated activities include among other things:


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

(ii) public comments and responses

(iii) project approval condition returns such as environmental monitoring data and other compliance information

(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

(v) geographic areas subject to development planning decisions.

5. Information that does not have to be published or provided in a particular mannerClauses 9.2(a) and 9.2(b) will be taken not to have been breached, where:

(i) the publication by South Australia (or an SA public authority) of the information is prohibited under South Australian Laws; or

(ii) the publication by South Australia (or an SA public authority) of the information could, in the opinion of the relevant officer, be an infringement of copyright or give rise to liability in defamation, or could otherwise expose South Australia (or the authority) to a claim for damages or other compensation or payment of fees or remuneration; or

(iii) Any other documents exempt under the South Australian Freedom of Information Act 1991 (SA); or

(iv) the information is not published (or is published in a particular manner) because the information is:

(A) confidential in nature; or

(B) the personal information of an individual; or

(C) likely to be considered sensitive by an indigenous group (including a kinship group), including information relating to the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group; or

(v) environmentally sensitive information (including environmentally sensitive locations) that, if published or published in a particular manner, may increase the risk of damage to a specific Matter of NES.


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Schedule 3 – Guidance documents for species and ecological communities1. Background1.1 Streamlining and provision of advice

(a) The Commonwealth and South Australia undertake to streamline policy and guidance documents developed by each party for assessments and approvals.

(b) As per clause 7.4, 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 South Australia to assist with decision-making, South Australia may seek and take into account that expert advice as per clause 6.4.

1.2 Guidance documents for listed species and communities(a) The Commonwealth develops guidelines, advice, plans and other documents for

particular species and ecological communities, to guide assessments and approvals, as well as long term conservation and management efforts. South Australia 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 listed species and ecological communities, particularly those that cross State and Territory borders. Documents that support this include:

(i) statutory documents:

(A) approved conservation advice;

(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.

(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;

(D) Matters of NES significant impact guidelines; and


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(E) survey guidelines.

1.3 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 South Australia (and

other States and Territories) to develop and review the guidance documents identified in Item 1 of this Schedule.

(b) Without limiting Item 2(a), South Australia 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 South Australia;

(ii) responsibilities for drafting guidance documents will be discussed between the Commonwealth 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.


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Schedule 4 – Additional streamlining measures

1. 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 South Australian 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 Proposed Timing

South Australia to amend relevant Mining Guidelines, Mining Determinations, and Petroleum and Geothermal Regulatory Guidelines to clarify that impacts on MNES will be considered in environmental assessments.

At a time agreed by the Parties.

Work cooperatively to develop relevant South Australian offset policies so that these policies can apply in accordance with clause 7.3(a) of this Agreement.

Early 2015.

Consider expanding the scope of the declaration in Item 4 of Schedule 1 of this Agreement to cover the broadest range of South Australian assessment and approval processes that have the potential to issue approvals for actions that could have significant impacts on matters of NES:

- Major development provisions under the Development Act 1993.

At a time to be agreed by the Parties, as soon as practicable following relevant amendments to the Development Act 1993.

- Private Mines under Part 11B of the At a time to be agreed by the


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Mining Act 1971. Parties, as soon as practicable following any future amendments to Part 11B of the Mining Act 1971.

Consider expanding the scope of accreditation using s146 of the EPBC Act to cover the broadest range of South Australian assessment and approval processes that have the potential to issue approvals for actions that could have significant impacts on matters of NES:

- a strategic assessment of relevant policies, plans or programs applied to actions assessed under the Highways Act 1926.- investigate the potential for undertaking a strategic assessment targeting key MNES in South Australia which most commonly trigger assessments under the EPBC Act.

Within 2 years of the Commencement Date.

Production of guidance material in relation to commonly triggering EPBC issues.

Production within 2 years of Commencement Date.

Consider NOPSEMA conferral in state waters.


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



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Schedule 5 – Section 3 of the Intergovernmental Agreement on the Environment

Intergovernmental Agreement on the Environment1992

AN AGREEMENT made the 1st day of May one thousand nine hundred and ninety two

BETWEEN

THE COMMONWEALTH OF AUSTRALIA of the first part,

THE STATE OF NEW SOUTH WALES of the second part,

THE STATE OF VICTORIA of the third part,

THE STATE OF QUEENSLAND of the fourth part,

THE STATE OF WESTERN AUSTRALIA of the fifth part,

THE STATE OF SOUTH AUSTRALIA of the sixth part,

THE STATE OF TASMANIA of the seventh part,

THE AUSTRALIAN CAPITAL TERRITORY of the eighth part,

THE NORTHERN TERRITORY OF AUSTRALIA of the ninth part,

THE AUSTRALIAN LOCAL GOVERNMENT ASSOCIATION of the tenth part.

THE PARTIES AGREE AS FOLLOWS:

SECTION 3 - PRINCIPLES OF ENVIRONMENTAL POLICY

3.1 The parties agree that the development and implementation of environmental policy and programs by all levels of Government should be guided by the following considerations and principles.

3.2 The parties consider that the adoption of sound environmental practices and procedures, as a basis for ecologically sustainable development, will benefit both the Australian people and environment, and the international community and environment. This requires the effective integration of economic and environmental considerations in decision-making processes, in order to improve community well-being and to benefit future generations.

3.3 The parties consider that strong, growing and diversified economies (committed to the principles of ecologically sustainable development) can enhance the capacity for environmental protection. In order to achieve sustainable economic development, there is a need for a country's international competitiveness to be maintained and enhanced in an environmentally sound manner.

3.4 Accordingly, the parties agree that environmental considerations will be integrated into Government decision-making processes at all levels by, among other things:


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1. ensuring that environmental issues associated with a proposed project, program or policy will be taken into consideration in the decision making process;

2. ensuring that there is a proper examination of matters which significantly affect the environment; and

3. ensuring that measures adopted should be cost-effective and not be disproportionate to the significance of the environmental problems being addressed.

3.5 The parties further agree that, in order to promote the above approach, the principles set out below should inform policy making and program implementation.

3.5.1 precautionary principle -

Where 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. In the application of the precautionary principle, public and private decisions should be guided by:

1. careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and

2. an assessment of the risk-weighted consequences of various options.

3.5.2 intergenerational equity -

the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.

3.5.3 conservation of biological diversity and ecological integrity -

conservation of biological diversity and ecological integrity should be a fundamental consideration.

3.5.4 improved valuation, pricing and incentive mechanisms -

environmental factors should be included in the valuation of assets and services.

polluter pays i.e. those who generate pollution and waste should bear the cost of containment, avoidance, or abatement

the users of goods and services should pay prices based on the full life cycle costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any wastes

environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, which enable those best placed to maximise benefits and/or minimise costs to develop their own solutions and responses to environmental problems.


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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 the [State/Territory] by:

[State/Territory Minister]

[Title]

Date


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