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DRAFT FOR CONSULTATION

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 Australian Capital Territory (ACT)


Table of contents

Details 3

Provisions 51. Definitions and interpretation 52. Nature of this Agreement 63. Agreement Period 74. Effect of this Agreement 75. Assessment 86. Decisions on approval 97. Transparency and access to Information 138. Co-operation 159. Heritage management plans 1610. Administrative Arrangements 1711. Reports 1812. Review 1913. Sharing Information – ongoing EPBC Act matters 2014. Audits 2015. Rectification 2116. Escalation 2117. Suspension or cancellation 2418. Amendment 2419. Freedom of information 2520. General provisions 25

Schedule 1 – Declared class of actions 26

Schedule 2 – Open access to Information 29

Schedule 3 – Guidance documents for Matters of National Environmental Significance 32

Schedule 4 – Additional streamlining measures 34

Execution page 35

Bilateral Agreement under sections 45 and 46, EPBC Act

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DRAFT

Bilateral Agreement under sections 45 and 46, EPBC Act Draft as at 03/06/2014 3


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 Chief Minister for and on behalf of the Australian Capital Territory (ACT).

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 the ACT 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 19 December 2013, the

Commonwealth and the ACT 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 ACT 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;

b. ensure matters of national environmental significance 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 the ACT.

Bilateral Agreement under sections 45 and 46, EPBC Act 4


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.


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Provisions

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

Accredited Process 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 10.1 of this Agreement.

Agreement this bilateral agreement made under section 45 of the EPBC Act between the Commonwealth and the ACT, as amended from time to time, including its Schedules.

Assessment Report a report on the proposal or activity for the purposes of the consideration of the application for approval to carry out the proposal or activity by the decision-maker.

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

Commonwealth Minister

the Minister administering the EPBC Act and, 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 a matter protected by a provision of Part 3 of the EPBC


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(national environmental significance)

Act specified in Item 2 of Schedule 1.

ACT Minister the ACT Minister administering the Planning and Development Act 2007, including a delegate of the Minister.

Schedule a schedule to this Agreement.

Senior Officers’ Committee

the committee established under clause 10.2.

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

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

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

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

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

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

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

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

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

(i) Schedule 1; then

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

(iii) the remaining Schedules in their order of appearance.

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

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

EPBC Act.

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


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(c) Transitional support from the Commonwealth in the form of embedded officers will be provided in accordance with the Administrative Arrangements.

3. 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.

4. Effect of this Agreement4.1 DeclarationSubject to clause 4.2, 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 Schedule 1 to this Agreement if the action is in the class of actions specified in Item 4 of Schedule 1 to this Agreement.

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

(b) Where an action forms part of a larger action that does not occur wholly within the ACT, the ACT 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 approved, was taken to have been approved, or was refused under Part 9 of the EPBC Act, or determined to be clearly unacceptable under Division 1A of Part 7; and Note: Section 146D of the EPBC Act provides that an approval under section 146B of the EPBC Act is taken to be an approval under Part 9 of the EPBC Act.

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

(e) The declaration in clause 4.1 does not apply to an action in the ACT that was referred under Part 7 of the EPBC Act to the Commonwealth Minister before the Commencement Date, unless the referral of the 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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(f) To avoid doubt, the declaration in clause 4.1 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 4.2(d).

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

(a) If approval is sought for an action under an Accredited Process, the ACT 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; or

(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, the ACT will 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 5.1(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 5.1(a)(ii) may be included in guidelines or standard templates for applications.

5.2 Undertaking to assess impacts on Matters of NES(a) The ACT 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:

(i) have or will have; or

(ii) are likely to have,

on each Matter of NES.

(b) For the purpose of clause 5.2(a), the impacts on a Matter of NES are adequately assessed if:

(i) they are assessed in accordance with applicable ACT Laws and to the extent permitted by those Laws (whether expressly or impliedly); and

(ii) they are assessed in accordance with clause 5.3.Note: ‘Impacts’ include direct and indirect impacts, as defined in section 527E of the EPBC Act.

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

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


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(b) the ACT will ensure that:

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

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

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

5.4 Seeking expert advice(a) The ACT may seek advice from the Commonwealth on Australia’s

international obligations as they relate to Matters of NES. The advice will be sought, as agreed by the Senior Officers’ Committee, with details to be set out in the Administrative Arrangements.

(b) The ACT may seek advice from expert advisory bodies established under the EPBC Act or from the Department, as agreed by the Senior Officers’ Committee, with details to be set out in the Administrative Arrangements.

5.5 Statutory undertakingWhere an action:

(a) is taken or proposed to be taken in the ACT; and

(b) is covered by the declaration in clause 4.1,

the ACT 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.

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

(a) To avoid unacceptable or unsustainable impacts on Matters of NES, the ACT will:

(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 residual significant impact cannot be offset consistent with clause 6.2 – the ACT will apply the escalation process set out in clause 16.1(a), as if there were a dispute between the parties.

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


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(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, the ACT will require offsets in accordance with clause 6.2 for those impacts.

6.2 Offsets(a) For the purposes of clause 6.1(b)(iii), the ACT will apply the ACT Offsets

Policy, including use of the ACT Environmental Offsets Calculator or the Offsets Assessment Guide under the EPBC Act Environmental Offsets Policy.Note: The ACT Offsets Policy provides for the application of the ACT Environmental Offsets Calculator, and in certain cases, application of the Offsets Assessment Guide under the EPBC Act Environmental Offsets Policy.

(b) For the purposes of clause 6.2(a), the ACT will apply an offset that delivers an outcome equivalent to, or better than, the outcome that would result from application of the EPBC Act Environmental Offsets Policy.

(c) If:

(i) the relevant decision-maker considers that a proposed offset (which may include proposed offsets for a region or class of development) is consistent with the EPBC Act Environmental Offsets Policy but not with the outcome indicated by the ACT Environmental Offsets Calculator, or the Offsets Assessment Guide under the EPBC Act Environmental Offsets Policy (whichever applies in accordance with the ACT Offsets Policy and associated guidelines) because of the unique nature of the impact or a proposed offset; and

(ii) the Commonwealth Minister agrees that the proposed offset would provide an acceptable environmental outcome consistent with the objects of the EPBC Act,

the relevant decision-maker may apply the proposed offset referred to in clause 6.2(c)(i).


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(d) The ACT will publish Information showing how the offset applied under clause 6.2(a) or 6.2(c) was derived.

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

(f) The ACT will provide Information on offsets, including the nature and location of the offset, consistent with arrangements for Information exchange detailed in Schedule 2.

(g) To ensure that offsets derived in accordance with this clause 6.2 are delivering long-term environmental outcomes for relevant Matters of NES in accordance with the objects of the EPBC Act, the evaluation of this Agreement referred to in clause 10.2 may include a review of the effectiveness of the ACT Offsets Policy, in meeting the objectives of this clause 6.2.

(h) The ACT will consult with the Commonwealth before changing the ACT Offsets Policy and associated methodologies.

(i) A reference in this clause 6.2 to:

(i) the EPBC Act Environmental Offsets Policy and the Offsets Assessment Guide under the EPBC Act Environmental Offsets Policy, includes a reference to that Policy or Guide as adopted and amended from time to time;

(ii) the ACT Offsets Policy is a reference to the policy titled the ACT Environmental Offsets Policy and published by the Environment and Sustainable Development Directorate for the ACT Government in August 2014, and includes a reference to that Policy as adopted and amended from time to time; and

(iii) the ACT Environmental Offsets Calculator, is a reference to the ACT Environmental Offsets Calculator and the Environmental Offset Assessment Methodology referred to in the ACT Offsets Policy, as adopted and amended from time to time.

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

6.3 Approvals not inconsistent with plans, etcTo ensure that 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 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;

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

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


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http://www.environment.act.gov.au/

http://www.environment.act.gov.au/


(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;

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

(i) Australia’s obligations under:

(A) the Biodiversity Convention;

(B) the Apia Convention; and

(C) Convention on International Trade in Endangered Species; or

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

(d) for a listed migratory species, Australia’s obligations under:

(i) the Bonn Convention;

(ii) China - Australia Migratory Bird Agreement;

(iii) Japan - Australia Migratory Bird Agreement;

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

(v) an international agreement approved under section 209(4) of the EPBC Act,

as in force from time to time.

6.4 Consideration of policies and guidelines(a) To 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, the ACT will ensure that relevant decision-makers:

(i) have regard to any relevant bioregional plans;

(ii) 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;

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

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

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


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(b) The obligation of the ACT under clause 6.4(a) relates only to such plans and other written material that are identified in the Administrative Arrangements for the purpose of that clause.

Note: Such polices may include, for example, policies relating to determining whether particular activities may have a significant impact on a Matter of NES. Refer to Schedule 3 for further information on how the parties will develop and use guidance material.

6.5 Approvals based on principles of environmental policyThe parties agree that when deciding whether to approve an action in accordance with an Accredited Process and, if so, under what conditions, the ACT will ensure that relevant decision-makers, subject to Law, have regard to the concept of sustainable development and related principles as set out in section 9 of the Planning and Development Act 2007 (ACT).

6.6 Approval conditionsIf:

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

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

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

6.7 Referral of draft approval to the Commonwealth(a) The ACT may provide to the Commonwealth Minister a draft decision notice

for an action to be approved in accordance with the Accredited Processes at Item 3 in Schedule 1, which is likely to have a significant adverse environmental impact on a Matter of NES.

(b) After receiving a copy of the draft decision notice, the Commonwealth Minister may provide comment within 10 working days in relation to the draft decision notice.

7. Transparency and access to Information7.1 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 4.1:

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

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

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

(b) In particular, the ACT will:

(i) ensure that the proponent takes all reasonable steps to obtain the views of directly affected Indigenous peoples in relation to any proposal under assessment that is likely to have a significant impact on any Matter of


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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;

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

Note: For example, for the purpose of this clause: - a decision-maker would pay particular regard to submissions from Indigenous peoples with a particular interest in a proposal, assessed in accordance with an Accredited Process; and- assessments or conditions on approval may require consultation with Indigenous peoples, e.g. in relation to adequacy of surveys relating to Matters of NES.

7.2 Public access to documentation (a) The ACT will ensure that Information is published on the internet in relation to

a proposed action affecting or likely to affect a Matter of NES for which approval is sought under an Accredited Process, including the following where relevant:

(i) environmental assessment requirements;

(ii) environmental impact assessment documentation; and

(iii) representations (public comments or a summary of public comments).

(b) The ACT will ensure that Information provided to decision-makers to assist decision-makers to exercise their functions or powers under an Accredited Process is published on the Internet (in so far as those functions or powers may relate to Matters of NES) before that Information is used by the decision-maker.Note: For example: Information providing rules, guidelines, practices or precedents relating to assessment and approval decisions.

(c) The ACT will ensure that all approval decisions that relate to Matters of NES, including the primary material on which those decisions are based, are published on the Internet as soon as possible after the approval decisions are made.

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

(i) confidential in nature;


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(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.

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

(f) 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.

7.3 Public access – particular needs groups(a) The ACT 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:

(i) comment on actions assessed and approved in accordance with an Accredited Process; and

(ii) comment on and otherwise access approval documentation.

(b) The parties note that Indigenous people affected by a proposed action may have particular communication needs, and will make arrangements to ensure that affected Indigenous people have reasonable opportunity to comment on actions assessed and approved in accordance with this Agreement.

7.4 Public commentsThe ACT will accept and consider comments in relation to an action to which this Agreement applies from persons located anywhere in Australia where the comments are properly made in accordance with the Accredited Process.

8. Co-operation8.1 Consideration of proposed actionsWhere a Commonwealth agency becomes aware of an action that may belong to a class of actions to which this Agreement applies, the Commonwealth agency will notify the ACT and redirect the proponent of the action to the ACT for a decision on whether it requires assessment for its likely impacts on Matters of NES.

8.2 Open access to Information(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:


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

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

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

(iv) Information is published at the highest resolution and accuracy available; and

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

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

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

Note: Schedule 2 provides further guidance on the commitments made by the parties to facilitate the open access to Information.

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

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

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

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

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

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

(iv) policies relating to Matters of NES prepared by the Commonwealth that would impact on the operation of this Agreement, which may include guidance specific to discrete populations or components of Matters of NES relevant to the ACT.

9. Heritage management plansThe parties agree to:

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

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

(i) management plans for National Heritage places under section 324X of the EPBC Act; or

(ii) suitable alternatives to those plans.


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

(a) for the implementation of this Agreement;

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

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

by the Commencement Date.

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

of a Senior Officers’ Committee to 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, except those in which a report is required under clause 12.1 or 12.2, 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 10.2(d) is not to be undertaken in a particular year or years.

(f) An evaluation under clause 10.2(d) may include, but is not limited to, an evaluation of:

(i) 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.

Note: The parties intend that the Senior Officers’ Committee 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.


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11. Reports11.1 Reports

(a) Each year, on a date specified in the Administrative Arrangements (or such other time notified to the ACT in writing by the Commonwealth), the ACT will provide reports to the Commonwealth for the purpose of the Department’s annual reporting obligations under the EPBC Act, including an analysis of how this Agreement has been implemented.

(b) Reports provided to the Commonwealth under clause 11.1(a) 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 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 ACT system for monitoring compliance with conditions of approval for actions to which this Agreement applies (for example, numbers of audits or compliance incidents relating to Matters of NES for actions approved in accordance with this Agreement);

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

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

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

(d) For the purpose of meeting the requirements of clause 11.1(a) of this Agreement, a separate report is not required to be prepared by the ACT if the required information specified in clause 11.1(b) is publicly available in a form that is appropriately accessible and adapted to allow the Commonwealth to efficiently meet all relevant reporting obligations.

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

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

(b) For the purposes of clause 11.2(a), ‘Information' may include proposed decisions (however described) for actions to which this Agreement applies.

(c) The Commonwealth may from time to time, request the ACT to provide copies of studies, reports and other Information (including non-published Information) in addition to the reports required under clause 11.1, where those studies, reports or other Information are in the possession of the ACT.

(d) The ACT will promptly respond to all reasonable requests by the Commonwealth under clauses 11.2(a) or (c).


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12. Review12.1 Five 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 jointly as agreed by the Senior Officers’ Committee, with each party meeting their own costs.

(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) Following consultation with the relevant ACT Minister, 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 the ACT, as soon as practicable after the review is completed.

12.2 Transitional reviews(a) An initial review will be undertaken 12 months after the commencement of the

Agreement.

(b) A review under this clause 12.2 will be undertaken by the Senior Officers’ Committee, unless the parties decide otherwise. The focus of such reviews will be whether the objects of this Agreement are being achieved and whether the system has been implemented and is working effectively. For the purpose of the review, the parties will also specify key performance indicators in the Administrative Arrangements.

(c) The parties may seek public comments for the purpose of a review under this clause 12.2.

(d) The Commonwealth will publish the results of the review under this clause 12.2 as soon as practicable after the review is completed.

12.3 Third party studies(a) A review under clause 12.1 or 12.2 may include studies, evaluations and

other activities intended to analyse the success of the Agreement in achieving its objectives.

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

(i) allow third parties reasonable access to the ACT 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.


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

(c) The parties agree to notify each other of actions in the ACT 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 the ACT before commencing enforcement action against a person for a contravention of Parts 3 to 9 of the EPBC Act for an action in the ACT.

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

14. Audits14.1 Unscheduled audit, review or evaluation

(a) Either party may initiate a suitable approach to undertaking an audit, review or evaluation (‘an activity’) under this clause if:

(i) the scope of the proposed activity is subject to consultation in the Senior Officers’ Committee, before it is initiated; and

(ii) in the opinion of the initiating party, there has been or is likely to be an adverse systemic outcome relating to this Agreement, whether or not the outcome relates to a contravention or likely contravention of this Agreement, and the reasons for that opinion are provided to the other party before the activity is initiated.

(b) An activity under this clause 14.1 should be conducted in the most efficient and effective manner possible to address the particular circumstances identified in clause 14.1(a)(e)(ii).

(c) Activities under this clause may include:

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

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

(d) Before a party arranges an activity under clause 14.1(c), the parties must notify the other party and consult on, where relevant:


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(i) the appointment of an independent auditor or reviewer(s); and

(ii) the criteria of the activity.

(e) The parties agree to co-operate fully in an activity arranged under this clause 14.1.

(f) The party responsible for arranging an activity may publish that report of that activity.

(g) Before publishing a report resulting from activities under clause 14.1, the party responsible for arranging the report must:

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

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

(h) Any financial cost incurred under this clause 14.1 will be borne by the party which arranges the activity.

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

14.3 ACT Auditor-GeneralThe parties recognise that the ACT Auditor-General may audit the operations of the ACT public sector in relation to this Agreement.

15. RectificationThe ACT 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.

16. Escalation16.1 Escalation 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 Department and the Director-General of the ACT Environment and Sustainable Development Directorate;


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(C) between the Commonwealth Minister and the ACT Minister;

(D) by a notice issued under clause 16.2;

(E) by a determination by the Commonwealth under clause 16.4 or by the relevant ACT Minister under clause 16.5; and

(F) by the process referred to in clause 17.

(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).

16.2 Notice of particular interest(a) If the Commonwealth considers that, based on substantial Information, 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 the ACT in relation to that action.

(b) Before issuing a notice under clause 16.2(a), the parties will seek to consult the relevant proponent, and seek to resolve the matter consistent with 16.1(a).

(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 the notice.

(d) The ACT agrees to respond within 10 business days to any notice issued under clause 16.2(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 16.2(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 as soon as practicable after the matter has been resolved.

16.3 Notice of proposed decisionWhere the ACT Minister or another relevant decision-maker of the ACT:

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

(b) the decision may substantially not meet the requirements for decision-making defined in clause 16.6,

the ACT 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.

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

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 16.6,


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the Commonwealth Minister may determine that the action is not within the class of actions to which clause 4.1 applies, regardless of whether a notice has been issued under clause 16.2(a) or 16.3.

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

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

(d) Notice of the determination under clause 16.4(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 16.4(a) in respect of any action.

16.5 Determination by the ACT Minister(a) Where the ACT Minister or another relevant decision-maker of the ACT:

(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 16.6,

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

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

(c) The parties will consult the relevant proponent, and seek to resolve the matter consistent with clause 16.1(a), before any determination is made in respect of an action.

(d) Notice of the determination under clause 16.5(a), including reasons for issuing the determination, will be published on the Department’s website, as soon as practicable after receiving the notice.

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

16.6 Requirements for decision-makingFor the purpose of clause 16, of this Agreement, a decision may substantially not meet requirements for decision-making if that decision would substantially not meet the requirements for decision-making in clauses 6.1– 6.5 inclusive (decisions on approval) of this Agreement.Note: In addition to the requirements for decision making in clauses 6.1 - 6.5, the general principles of administrative decision-making continue to apply, for example decisions affected by bias would not meet these requirements.


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

(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 clauses 16.4 or 16.5.

17. Suspension or cancellation17.1 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.

17.2 At the request of the relevant ACT Minister(a) Section 63 of the EPBC Act requires the Commonwealth Minister at the

request of the ACT Minister to cancel or suspend all or part of this Agreement if the request is made in accordance with this Agreement.

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

(ii) before making the request, the ACT 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.

18. Amendment18.1 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.

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

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

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


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18.3 Amendment of legislationIf the EPBC Act or Planning and Development Act 2007 (ACT) or any other 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.

19. 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. General provisions20.1 Relationship to assessment bilateral agreementThis Agreement operates concurrently with a bilateral agreement in force with the ACT in relation to environmental assessment.

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

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

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


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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:

'Conservator' means the Conservator of Flora and Fauna established by the Nature Conservation Act 1980 (ACT)

'development' has the same meaning as in section 7 of the PD Act and includes the use of land, or a building or structure on the land as defined in section 8 of the PD Act.

'development application' has the same meaning as in the dictionary to the PD Act.

'development approval' has the same meaning as in the dictionary to the PD Act.

'development proposal' has the same meaning as in the dictionary to the PD Act.

'EIS' means and Environmental Impact Statement prepared under Part 8.2 of the PD Act.

'PD Act' means the Planning and Development Act 2007 (ACT).

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

specifies the relevant provisions of Part 3 of the EPBC Act for which an approval under Part 9 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 Item 4.1 of this Schedule 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 15B and 15C of the EPBC Act (National Heritage places);

(b) sections 16 and 17B of the EPBC Act (Ramsar Wetlands);

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

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

(e) sections 21 and 22A of the EPBC Act (nuclear actions).


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3. Authorisation processesFor the purposes of this Agreement (including section 46(2A) of the EPBC Act), the following authorisation processes, and the Laws of the ACT in which they are set out, are identified.

The process set out in the laws of the ACT for the authorisation of an action that is development that may be carried out with a development approval under Chapter 7 of the PD Act being:

(a) the process for the grant of a development approval under Chapter 7 of the PD Act where the development proposal has been assessed under the impact track in Division 7.2.4 of Part 7.2 of Chapter 7 of the PD Act and where:

(i) the development application for a development proposal includes a completed EIS in accordance with Part 8.2 of the PD Act; or

(ii) the ACT Minister has issued an exemption from the requirement for the development application to include a completed EIS in accordance with section 211 of the PD Act; or

(b) the process for the amendment of a development approval under Chapter 7 of the PD Act where the proposed amendment has been assessed under the impact track in Division 7.2.4 of Part 7.2 of Chapter 7 of the PD Act and where:

(i) the application for amendment includes a completed EIS in accordance with Part 8.2 of the PD Act; or

(ii) the ACT Minister has issued an exemption from the requirement for the application for amendment to include a completed EIS in accordance with section 211 of the PD Act.

4. Class of actions4.1 Specified Development

For the purpose of clause 4.1 of this Agreement, and subject to Items 4.2 and 4.3, the following class of actions is specified:

(a) Actions that are development authorised to be carried out in accordance with a development approval granted or amended under the authorisation processes described in Item 3, after the date the authorisation process becomes an Accredited Process:

(i) where the relevant development approval is in force under the PD Act;

(ii) which are not specified in Item 5 of this Schedule; and

(iii) that are not subject to a determination of the Commonwealth Minister made under clause 16.4 of this Agreement, or a determination of the ACT Minister under clause 16.5 of this Agreement.

4.2 Nuclear actionsItem 4.1 does not apply to an action consisting of or involving the construction or operation of any of the following nuclear installations referred to in sections 140A(a) to (d) of the EPBC Act:

(a) a nuclear fabrication plant;

(b) a nuclear power plant;

(c) an enrichment plant; and


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(d) a reprocessing facility.

4.3 Commonwealth areasConsistent with section 49 of the EPBC Act, Item 4.1 does not apply to an action within a Commonwealth area.

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

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

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


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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 does 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 will 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;

(iii) all stakeholders can access information relevant to them;

(iv) allowing decisions to be made using the same information base;

(v) enabling innovation by using information differently to the purpose for which it was obtained; and

(vi) helping to ensure that all information used for decisions is fit for that purpose.

(d) The protocols outlined in this Agreement are intended to provide high-level guidance for the parties on key elements needed to achieve the policy intent of clause 8.2. These protocols are not intended to dictate specific approaches or timeframes for implementation and recognise that extensive guidance on achieving open information exists in the public domain and that parties will be implementing specific actions as part of existing initiatives. The parties recognise that capacity to implement the protocols is dependent on the resources available.

3. Information open access protocolsTo give effect to clause 8.2 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


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(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; and

(vi) nature and location of offsets.

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

(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 identified as public land in Schedule 3 of the Planning and Development Act 2007 (ACT), areas subject to a conservation agreement under the EPBC Act or environmental offset sites secured as a condition of project approvals; and

(v) geographic areas subject to development planning decisions.

5. Information that does not have to be published or provided in a particular mannerClauses 8.2(a) and 8.2(b) of this Agreement will be taken not to have been breached, where:

(a) the publication by the ACT (or a ACT public authority) of the Information is restricted or prohibited under ACT Laws or is subject to a Restrictive Licence; or

(b) the publication by ACT (or a ACT 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 the ACT (or the authority) to a claim for damages or other compensation or payment of fees or remuneration; or

(c) there would be an overriding public interest against disclosure of the Information under the ACT Laws; or

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


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(i) confidential in nature; or

(ii) the personal information of an individual; or

(iii) 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

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

Schedule 3 – Guidance documents for Matters of National Environmental Significance

1. Background1.1 Streamlining and provision of advice

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

(b) As per clause 6.4, 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 the ACT to assist with decision making, the ACT may seek and take into account that expert advice as per clause 5.4.

1.2 Guidance documents(a) The Commonwealth develops guidelines, advice, plans and other documents

for particular threatened species and ecological communities, to guide assessments and approvals, as well as long term conservation and management efforts. The ACT 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;


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(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; and

(ii) non-statutory documents, such as:

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

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

(C) ecological community guidelines and fact sheets;

(D) Matters of NES significant impact guidelines; and

(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 1.2 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 the ACT (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), the ACT 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 the ACT;

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

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


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Schedule 4 – Additional streamlining measures1. Background

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

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

2. Additional streamlining measuresACT processes to be considered for accreditationThe 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

Prepare guidance for industry including: The relationship between an assessment and approval bilateral

agreement. Notice of Particular Interest/Call-in/Opt-out provisions.

Consider broadening the scope of accreditation: to include additional ACT processes, for example strategic

environmental assessment under the Planning and Development Act 2007 (ACT); and

to increase the range of provisions of Part 3 of the EPBC Act for which the authorisation processes are accredited.

Continue to work together to align Commonwealth and ACT threatened ecological community definitional criteria and species lists, to the extent possible.

Continue to investigate strategic assessments of Eastern Broadacre and Riverview.

Continue to explore opportunities for improvements to the ACT planning framework to pursue greater alignment of compliance penalties and remedies.

Undertake work to determine if Conservation Agreements can be used to streamline relevant processes.


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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 Australian Capital Territory by:

Ms Katy Gallagher MLA

Chief Minister

Date


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