Since the Federal election, major concerns have been raised about the possible weakening of environmental protections through delegation to State governments. In particular, there is a potential conflict of interest where the State has a financial or political stake in the project submitted for approval.
The Federal government has the power to regulate certain aspects of the environment, including listed threatened species, world heritage sites, and the Great Barrier Reef. The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) was enacted to allow the Federal Government to have the final say on projects affecting these nationally and internationally important environmental matters. The best-known example of how this power has been used is the Traveston Dam proposal, which the State government sought to approve, but the Federal government rejected due to the significant impact it would have on protected species.
On 18 October 2013, the Federal and Queensland Environment Ministers signed a Memorandum of Understanding to move towards a ‘one stop shop’ for environmental approvals. Effectively, this means the State government will have the final say on projects; even those that will affect nationally important aspects of the environment. Understandably, this move to delegate power has attracted controversy, given that it does not require the passing of legislation and approval by the Senate.
However, there is a legal basis for the Federal government to delegate powers by agreement, although there are limitations. Under legislation, the Federal government can delegate approval powers, but first must accredit the State government’s procedures for assessment and approval. This can only be done if the Minister is satisfied that:
- there will be adequate assessment of the impacts on the environment; and
- actions approved will not have unacceptable or unsustainable impacts on the environment (in particular, matters that are protected under the EPBC Act).
Despite the delegation of power, the EPBC Act is still supposed to be crucial to the assessment and decision-making process.
Importantly, because approvals are delegated by agreement rather than by legislation, the changes will not have to pass through Senate in the usual way. That said there is still an opportunity for the Senate to object: the Minister cannot accredit the State government arrangements unless these arrangements are laid before both Houses of Parliament, and both Houses then have 15 days to provide a motion to disallow the accreditation. Crucially, if either House passes a resolution to disallow the accreditation, then the Minister must not accredit the arrangements. This means that there is in fact an opportunity for the Senate to object to the delegation.
These provisions relating to the motion to disallow have never been tested, and are no doubt a concern to the government given the current composition of the Senate. At this stage, we will have to wait and see what happens when the agreement to delegate powers is signed, but it may be a very interesting test of these unused provisions of the EPBC Act.