Law Reform · Nature & the Reef

ANEDO does not support the handover of environmental approval powers to the States

13 June, 2014

Australian Network of Environmental Defender’s Offices does not support the handover of environmental approval powers to the States. Read our full submission.

Australian Network of Environmental Defender’s Offices (ANEDOsupport the establishment of best practice environmental standards in all Australian jurisdictions, and the retention of environmental approval powers by the Australian Government for matters of national environmental significance.

Read our full submission on the Draft Approval Bilateral Agreement between the Queensland and Australian Governments.

Our future prosperity depends on a healthy environment. It is unacceptable for the Commonwealth to weaken environmental protection by delegating to Queensland approval decision-making on any matters of national environmental significance. The Traveston Dam example shows how the Commonwealth needed to protect listed threatened species and say no to a Queensland-approved dam. Even the World Heritage Committee recently noted the transfer of decision-making powers to the Queensland Government “appears premature” before governance requirements to implement a long term plan for sustainable development of the Great Barrier Reef is in place.

Based on our years of experience across Australia with both State and Commonwealth environmental laws, and expert analysis of the proposals under the ‘one stop shop’ policy, ANEDO does not support the handover of environmental approval powers to the States and we do not consider the Queensland Draft Approval Bilateral Agreement (Draft Agreement) should be entered into.

ANEDO submits that at a minimum, substantial change to the Draft Agreement is required to limit the matters of national environmental significance to be delegated, as well as changes to the accredited legislation and the Draft Agreement itself, summarised as follows:

  1. Actions in World Heritage Areas and actions in the Great Barrier Reef Marine Park should be excluded, along with actions anywhere in Queensland subject to the water trigger and nuclear actions. Inclusion of certain nuclear actions in the bilateral, such as mining uranium or transporting waste, is a retrograde step with serious national and international implications.
  2. State-owned corporations and agencies routinely have a direct interest in proposed developments here in Queensland. Their actions should be excluded from any approval bilateral. Queensland will prefer royalties or income over the national interest.
  3. Conflict of interest: The Queensland Coordinator-General is proposed to be a key approvals decision-maker for major projects. The Queensland Coordinator-General would have a conflict of interest between national environmental protection and their main current role of promoting development. A more appropriate Queensland delegate for any approvals decision-making is the State Environment Minister.
  4. Inadequate Queensland legislation: Queensland’s project assessment legislation proposed to be accredited does not meet the standards necessary for Commonwealth accreditation. For practical legal enforceability the various Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) decision-making criteria and duties, such as to comply with international treaties such as the World Heritage Convention, need to be required to be each separately and specifically written into the Queensland legislation.
  5. Further, provisions about taking a developer’s environmental record into account in decision-making and provisions outlawing supply of false and misleading information by a developer need to be strengthened in Queensland legislation to be the same as the EPBC Act.
  6. Accountability and Enforcement: The Draft Agreement and accredited legislation do not confer extended legal standing for community groups for judicial review or open standing for enforcement equal to the EPBC Act. Relevant Queensland legislation does not include those provisions, which means legitimate community groups may be unable to take action as a safeguard against official inaction.
  7. Public access to information: It is also important that Queensland is required to have provisions about public access to information in Queensland legislation, not just policy. This is a valuable safeguard for the public.
  8. Likelihood of poor state enforcement: What resources will be provided to Queensland to implement bilateral approval responsibilities? The Qld State Government is not resourced to adequately administer Commonwealth laws and its poor record of enforcement has been exposed in 2014 by the Queensland Audit Office.  The potential cost to the tax-payer where these laws are poorly enforced could quickly outweigh any perceived benefit of delegation of approvals.
  9. Call-in Powers: The Commonwealth needs power to exercise call-in powers to decide an application not merely before a decision is made by Queensland but within a period after Queensland makes a delegated decision.  This flexibility is important to ensure Commonwealth oversight.

Under the Commonwealth Government’s proposed policy, each state and territory will have different regulatory requirements, creating a patchwork regulatory system.  There is a strong likelihood that rather than deliver streamlined approval processes, the delegation of approval powers to Queensland with new legislation including new terminology will result in approval delays. Without proper Commonwealth assessment, individual and community stakeholders will feel disengaged. Based on the range of concerns identified in our submission, ANEDO submits that the draft approval bilateral agreement should be withdrawn. If it is not withdrawn, ANEDO submits that the recommendations highlighted throughout this submission should at least be implemented.