Australia: Draft amendments to the Queensland Assessment Bilateral to accredit the IAR process have been released

Clayton Utz Insights
Last Updated: 5 November 2014
Article by Karen Trainor and Kathryn Pacey

Key Points:

The proposed amendments to the Assessment Bilateral will change the way an IAR assessment is carried out under the SDPWO Act for a project undergoing a bilateral assessment.

Draft amendments to the Bilateral Agreement between the Commonwealth and the State of Queensland (Assessment Bilateral) have been released for public consultation. Written comments on the draft amendments can be made until 5pm on 21 November 2014.

The primary purpose of the draft amendments is to accredit the new "impact assessment report" (IAR) process under the State Development and Public Works Organisation Act 1971 (SDPWO Act).

Accrediting the new impact assessment report process

In accrediting the IAR process, the proposed amendments require three things.

First, the Commonwealth Environment Minister must be given notice of the proposal to use an IAR assessment approach.

Secondly, when a proposed assessment is by IAR, the State must also give the Commonwealth Environment Minister an opportunity to ask that another assessment approach be used (Alternative Assessment Request).

The third requirement affects how the Coordinator-General makes a coordinated project declaration for either an EIS or IAR. The Coordinator-General must

  • have information sufficient to make the decision (this is a requirement for any administrative decision);
  • consider criteria set out in guidelines (if any) issued under the EPBC Act relevant to determining the assessment approach; and
  • if the Coordinator-General has declared that an IAR is required, ensure that the IAR includes an assessment of the relevant impacts and is assessed in accordance with any Alternative Assessment Request.

Changing the assessment process for an IAR

The proposed amendments to the Assessment Bilateral will change the way an IAR assessment is carried out under the SDPWO Act for a project undergoing a bilateral assessment.

For an IAR for which the Commonwealth Environment Minister has made an Alternative Assessment Request, the Coordinator-General must issue to the proponent written guidelines for the preparation of an IAR that are designed to ensure that the IAR:

  • addresses the matters listed in Schedule 1 of the SDPWO Regulation (which sets out the matters that an EIS for the assessment bilateral must address);
  • assesses all relevant impacts that the action has, will have or is likely to have;
  • provides enough information to allow the Commonwealth Environment Minister to make a decision under the EPBC Act;
  • addresses the matters for an EIS or public environment report set out in the EPBC Regulations;

Additionally, the draft IAR must address the written guidelines, and be publicly notified for at least 28 days under the SDPWO Act (under the SDPWO Act, an IAR is only required to be publicly notified if there is a subsequent notifiable approval).

For an IAR for which the Commonwealth Environment Minister has not made an Alternative Assessment Request:

  • the Coordinator-General must ensure that the draft IAR describes the proposed action, the likely relevant impacts of the action, any feasible alternatives to the proposed action that could avoid or reduce relevant impacts and possible mitigation measures;
  • is publicly notified for at least 28 days under the SDPWO Act.

Impacts of the proposed changes

The proposed changes to the Assessment Bilateral, if accepted, will accredit the IAR process under the SDPWO Act, meaning that this process can be used to satisfy an EPBC Act assessment. Importantly however, the proposed changes will mean that:

  • the IAR will only be an accredited process where the Commonwealth Environment Minister has been given notice that the Coordinator-General proposes to undertake an assessment by IAR, and the Commonwealth Environment Minister has been given an opportunity to request another assessment approach be used;
  • the Coordinator-General in determining whether an IAR is required must consider a range of criteria under the EPBC Act, including guidelines made under the EPBC Act relevant to determining the assessment approach (if any);
  • an IAR that is being used for the Assessment Bilateral will require public notification for at least 28 business days, even if a subsequent approval does not require public notification.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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