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2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT
(COST RECOVERY) BILL 2014
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for the Environment, the Hon Greg Hunt MP)
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT
(COST RECOVERY) BILL 2014
OUTLINE
The Environment Protection and Biodiversity Conservation Amendment (Cost Recovery) Bill
2014 (the Bill) amends the Environment Protection and Biodiversity Conservation Act 1999
(Cth) (the EPBC Act) to allow for cost recovery for regulatory activities under the EPBC Act.
The purpose of the Bill is to allow for cost recovery for environmental impact assessments,
including strategic assessments, under the EPBC Act, consistent with the Australian
Government Cost Recovery Guidelines. The relevant fees will be specified in the
Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) (the
Regulations), except for fees in relation to assessment by an inquiry or strategic
assessment, which will be made through a Ministerial determination. The Bill will also allow
the Regulations to specify administrative requirements for applications, processes for
payment, and for refunds, exemptions and waivers.
The Bill also allows for cost recovery for the assessment and approval of action
management plans submitted after the Minister has granted an approval under the
EPBC Act, and for the variation of those plans. The Bill achieves this by allowing a person to
elect to submit a management plan for approval after the decision is made approving the
action. The Regulations can then specify that a fee can be charged for the assessment and
approval of the plan when it is submitted.
Action management plans are plans for managing the impacts of the action on a matter
protected by a provision of Part 3 of the EPBC Act, such as a plan for conserving habitat of a
species. The preparation of and approval of action management plans by the Minister is a
common requirement of conditions of approval under the EPBC Act. Action management
plans allow the Minister to have ongoing oversight of an action, and more flexibility to specify
required environmental outcomes or management strategies as more data becomes
available or new technologies develop for environmental management. By setting out a
formal process for developing, submitting and varying action management plans, the
amendments allow for cost recovery for activities associated with approving these plans.
FINANCIAL IMPACT STATEMENT
The estimated revenue from EPBC Act cost recovery is $7,776,907 in 2014-15. The
revenue from cost recovery will be reconsidered in the 2015-16 Budget in light of the
introduction of the one stop shop reforms. A Cost Recovery Impact Statement (CRIS) will be
developed and published prior to the making of regulations implementing cost recovery.
REGULATORY IMPACT STATEMENT
The Office of Best Practice Regulation has advised (proposal ID 16598) that the
amendments do not require a regulatory impact statement.
2
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS - PART 3 HUMAN RIGHTS
(PARLIAMENTARY SCRUTINY) ACT 2011
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Environment Protection and Biodiversity Conservation Amendment (Cost Recovery)
Bill 2014
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the Bill
The purpose of the Bill is to allow for cost recovery for environmental impact assessments
under the Environment Protection and Biodiversity Conservation Act (Cth) (EPBC Act). The
Bill allows for Regulations to be made setting fees for activities under the EPBC Act, provide
for fee exemptions, waivers and refunds. The Bill also allows for cost recovery for the
assessment and approval of action management plans submitted after the Minister has
granted an approval under the EPBC Act.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms. It allows for the
imposition of a fee for service for activities under the EPBC Act.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
Minister for the Environment, the Hon Greg Hunt MP
3
TABLE OF CONTENTS
Schedule 1 Cost recovery 1
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Explanatory Memorandum - Cost recovery
SCHEDULE 1 COST RECOVERY
Item 1 - After subsection 91(1)
1.1 Item 1 provides that as part of the written notice of the decision on the assessment
approach provided under section 91 (Notice of decision on assessment approach), the
Minister must advise the person proposing to take the action that they may also elect to
submit an action management plan for approval after the decision is made approving
the taking of the action. The election can be made at any time before the approval is
granted. This provision ensures that the person proposing to take the action is aware
that they could elect to provide the Minister with an action management plan following
approval of their action, and enables the Regulations to specify a fee for the
assessment of that plan post-approval. See items 5-11 below for more detail on action
management plans.
Items 2-4
1.2 Items 2-4 amend the provisions of Part 8 relating to assessment of controlled actions
so that the assessment of an action cannot continue if relevant fees have not been
paid. This relates to the amendment made in item 19, which provides that time periods
in the EPBC Act do not run if fees remain unpaid.
1.3 These amendments are necessary because the structure for payment of fees specified
in the Regulations may include making fees payable in stages. For example, rather
than having a single fee payable at the beginning of an assessment, the fees may be
payable at different points in the statutory assessment process.
1.4 Various stages in the assessment process depend on the proponent taking particular
actions, such as providing documents to the Minister. Usually when the proponent
provides these documents, the assessment process automatically enters a new stage.
The amendments in items 2-4 ensure that the assessment remains `paused' if the
person proposing to take the action has not paid any fees due at that point. Fees may
be charged at these stages to cover administrative work done by the Department in
ensuring that documentation meets the requirements of the EPBC Act.
Items 2 and 3 - After subsection 95B(1) and after subsection 95B(3)
1.5 Item 2 inserts a new subsection into section 95B. Subsection 95B(1) currently requires
the designated proponent to give the Minister a document that sets out information in
relation to the relevant proposed action amended to take into account comments, and a
summary of any comments received during the public comment period. If no comments
are received, subsection 95B(3) requires the designated proponent to give the Minister
a written statement to that effect.
1.6 Currently, subsection 95B(2) and subsection 95B(4) require the proponent to publish
the relevant information about the action within 10 business days of giving the
documents or statement to the Minister.
1.7 The new subsection 95B(1A) and subsection 95B(3A) will mean that the proponent
cannot give the documents to the Minister if a fee which is due has not been paid. In
other words, for the purposes of the EPBC Act, the proponent will not be taken to have
`given' the documents to the Minister until any relevant fee is paid.
Explanatory Memorandum - Cost recovery
Item 4 - After subsections 99(3) and 104(3)
1.8 For the purposes of assessment by Public Environment Report (PER) or Environmental
Impact Statement (EIS), designated proponents must give a copy of the final PER or
EIS to the Minister and a copy of any comments received during the public comment
period.
1.9 Item 4 inserts a new subsection (3A) into sections 99 and 104. The new subsections
99(3A) and 104(3A) will mean that the proponent cannot give the documents to the
Minister if a fee which is due has not been paid. In other words, for the purposes of the
EPBC Act, the proponent will not be taken to have `given' the documents to the
Minister until any relevant fee is paid.
Items 5-11
1.10 Items 5-11 provide a process for a person to elect to submit an action management
plan after the Minister has approved the taking of an action. The election to submit a
plan will be able to be made at any time prior to approval being granted (see new
section 132B, item 5 of Schedule 1), and the requirement to submit a plan would be
imposed as a condition of approval. The approval holder will submit the action
management plan with the fee (if any) required by the Regulations. If the proponent
has already developed an action management plan, they will be able to submit all the
required information as part of their assessment documentation in relation to managing
any impacts of the proposed action before the approval is granted, and the election
process will not be necessary.
Item 5 - After section 132A
1.11 Item 5 inserts a new section 132B into the EPBC Act, which will set out the process a
person proposing to take the action must follow if they are to elect to submit an action
management plan for approval. A person proposing to take an action will be able to
make an election at any time before an approval is granted under section 133 (see
subsection 132B(1)). However, once the Minister has granted an approval under
section 133 the person will not be able to revoke the election (see subsection 132B(4)).
If the person proposing to take the action elects to submit an action management plan
it is likely that a condition will be attached to an approval requiring the preparation of an
action management plan.
1.12 Subsection 132B(3) will clarify that if the person who made the election notifies the
Minister that another person proposes to take the action, then up until a decision on
approval of an action under section 133 is made, that other person will be able to
revoke the election made by the first person.
1.13 An election will need to be made in writing, and be given to the Minister before the
Minister grants an approval under section 133 (see subsection 132B(2)).
Item 6 - Paragraph 134(3)(e)
1.14 Item 6 clarifies that a condition can be attached to an approval requiring the
preparation of an action management plan under paragraph 134(3)(e) only where a
person has made, or is taken to have made, an election under section 132B (inserted
by item 5 above). It is intended that regulations made for the purpose of
subsection 520(4A) (inserted by item 16 below) will require a fee to be paid at the time
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Explanatory Memorandum - Cost recovery
the action management plan is submitted for approval (rather than when a person
makes an election under subsection 132B). Therefore if, when granting the approval or
after the approval is given, the Minister determines that an action management plan is
not required, the fee will not be payable.
1.15 Where a person has made, or is taken to have made, an election to submit an action
management plan, the Minister will be able to attach a condition requiring submission
of an action management plan to an approval. The Minister may also attach a condition
requiring the implementation of the action management plan to the approval.
1.16 The Regulations will be able to provide that a fee applies where a person is taken to
have made an election under subsection 143(1A) (inserted by item 10 below) agreeing
to adding, varying and attaching a condition about an action management plan to an
approval. If another person takes the action following approval of the action but prior to
the action management plan being submitted then they will be responsible for paying
the fee on submission.
Item 7 - At the end of subsection 134(3)
1.17 Item 7 is required as a consequence of Item 10 below. The note will direct the reader's
attention to subsection 143(1A) (inserted by item 10 below) in relation to when an
election is taken to have been made where an approval holder agrees to a condition
requiring an action management plan being added and attached to the approval.
Item 8 - After subsection 134(3C)
1.18 Item 8 inserts a new subsection 134(3D). Paragraph 134(3)(e) will enable the Minister
to attach a condition to an approval requiring an action management plan to be
submitted to the Minister for approval. Where such a condition is attached, subsection
134(3D) will enable the Minister to request the holder of the approval to provide
additional information, where the Minister considers that there is not enough
information to make a decision whether or not to approve an action management plan
- for example where information that has been provided is inadequate to assess the
action management plan, or where there are changes in the action. The Regulations
will be able to provide for the imposition of additional fees where the Minister requests
further information under this subsection. In these cases, additional departmental staff
time is required to address these issues, resulting in additional costs.
Item 9 - After section 134
1.19 This item inserts a new section 134A into the EPBC Act, which will enable the Minister
to publish the action management plan for public comment before it is approved (see
subsection 134A(1)). Paragraph 134A(1)(b) will require the Minister to set a minimum
of 11 business for members of the public to provide comments. The Regulations will
also be able to provide for requirements in relation to the way the Minister publishes
the plan and invitations (see subsection 134A(2)). This amendment ensures that,
where appropriate - for example where there is significant public interest in matters
included in the action management plan - the Minister will be able to seek public
comment on the plan.
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Explanatory Memorandum - Cost recovery
Item 10 - After subsection 143(1)
1.20 This item inserts new subsections 143(1A) and 143(1B) into the EPBC Act. Paragraph
143(1)(c) provides that the Minister may revoke, vary or add to any conditions attached
to an approval given under section 133 where the holder of the approval agrees and
the Minister is satisfied of various criteria. If the holder of the approval has made an
election under section 132B (inserted by item 5 above), the Minister will be able to
attach conditions to an approval requiring the submission and implementation of an
action management plan.
1.21 Subsection 143(1A) will provide that if the holder of the approval agrees for their
approval to be varied to require an action management plan to be submitted, then they
are taken to make an election under section 132B. If the Minister varies a condition of
an approval under paragraph 143(1)(c) to vary or add a condition requiring the
submission of an action management plan for approval by the Minister, regulations
made for the purposes of subsection 520(4A) (inserted by item 15 below) will be able to
prescribe a fee payable by the holder of an approval for the assessment of the action
management plan.
1.22 In addition, subsection 143(1B) will enable the holder of an approval to request that the
Minister vary a condition attached to an approval. The approval holder will need to
make the request in writing. Currently the EPBC Act only contemplates variations to
conditions being made unilaterally by the Minister. In practice, variations may be
prompted by requests from or information provided by approval holders. This provision
will formalise this process, and enable the Regulations to provide for cost recovery for
the assessment of a variation application.
Item 11 - After section 143
1.23 This item inserts a new section 143A into the EPBC Act which provides for the variation
of an action management plan. Under subsection 143A(1), a holder of an approval will
at any time be able to apply to the Minister for a variation of an approved action
management plan. The approval holder will need to make the application for a variation
in writing, and also submit any fee payable and any information or documents required
by the Regulations (see subsection 143A(2)). Once the Minister receives an
application, the Minister will have the ability to request additional information be
provided before making a decision (see subsection 143A(4)), if the Minister believes on
reasonable grounds that the application does not include sufficient information. The
Minister will be required to notify the holder of the approval in writing of his or her
decision whether to approve the variation to the action management plan (see
subsection 143A(5)).
1.24 Currently conditions requiring management plans provide a process for variation of the
particular plan required by the condition. Any conditions of this type attached to current
approvals will continue to apply. This provision will provide a generally applicable
process for the variation of action management plans where an election has been
made under s 132B (see item 5 above). Any variations to the plan would need to be
consistent with the approval conditions.
Item 12 - Subsection 156F(3)
1.25 This item repeals subsection 156F(3) and substitutes it with a new subsection (3),
which will set out the requirements for a notice being provided to the Minister under
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Explanatory Memorandum - Cost recovery
subsection 156F(1) where there is a change of person proposing to take an action.
This section only applies before an approval is granted under section 133. Subsection
156F(3) will provide that a notice must include the information (if any) prescribed in the
Regulations and be accompanied by the fee (if any) prescribed by the Regulations.
1.26 Requiring the notice to be accompanied by the fee prescribed in the Regulations will
deter fee avoidance behaviour by persons who may otherwise be required to pay the
appropriate fees. For example, the first person proposing to take the action may be
exempt from paying the fees associated with assessing the proposal (see item 16
below which allows for the Regulations to specify waivers and exemptions). If that
person then transfers their proposal to another person who would not be exempt from
paying the fees, the amendments will ensure that the new person will be liable to pay
all the fees associated with the assessment of the proposal as though that person had
referred the proposal to the Minister in the first place. If this were not the case, a
person who would otherwise have to pay fees could avoid doing so where the original
person who made the referral was eligible for a waiver.
Item 13 - At the end of Part 11 of Chapter 4
1.27 This item inserts a new Division 7 (Miscellaneous) into Part 11 (Miscellaneous rules
about assessments and approvals) of the EPBC Act to enable the Minister to
determine the fees that may be charged for certain assessment processes.
1.28 Section 170CA will provide that the Minister may determine the amounts of fees to be
charged, including the ways in which a fee is to be worked out, in relation to the
following assessment approaches:
(a) assessment by inquiry under Division 7 of Part 8; or
(b) assessment by strategic assessment under Division 1 of Part 10.
1.29 It is anticipated that the fees for these types of assessments will be determined on a
case-by-case basis, rather than specified in the Regulations. The fees the Minister will
determine appropriate for these assessment approaches will be dependent on the
specifics of each individual project being assessed and related departmental resources
necessary to undertake the assessment. The Minister cannot determine the fees and
fix them in Regulations in advance, as for other assessment methods, due the wide
variations in the actual resources required to conduct these assessments. Strategic
assessments may also provide a general public benefit, and cost recovery therefore
may not be appropriate in some cases.
1.30 Before making a determination, subsection 170CA(2) will require the Minister to consult
with the person proposing to take the action, the designated proponent, or the person
responsible for the policy, plan or program for strategic assessments (as the case
requires), about the level of fee to be charged. This will provide the person proposing to
take the action with greater certainty of costs prior to commencing the assessment, so
that they can make amendments to their proposed action, or policy, plan or program, to
avoid or mitigate the significance of the action's impact on matters of national
environmental significance and potentially reduce the cost of their assessment. Fees
will be based on the level of departmental resourcing required to conduct the
assessment of the action or the strategic assessment of the plan, policy or program.
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Explanatory Memorandum - Cost recovery
1.31 Subsection 170CA(4) is intended assist readers and is merely a declaration of the law.
A determination made under subsection (1) is not a legislative instrument within the
meaning of section 5 of the Legislative Instruments Act 2003 (Cth).
Item 14 - Subparagraph 496(1)(b)(iii)
1.32 Item 14 amends subparagraph 496(1)(b)(iii) as a consequence of item 19 below, to
reflect the change in terminology from environmental management plan to action
management plan.
Item 15 - After Part 19
1.33 This item inserts a new Part 19A into the EPBC Act, which will allow for the
reconsideration of fees. The fees to which this section will apply are those fees that are
worked out by a person to whom a function or power is delegated under section 515
(Delegation) of the EPBC Act. As such, a fee determined by the Minister will not be
subject to reconsideration under this section.
1.34 Subsection 514Y(2) will enable a person to apply to the Secretary to reconsider the
way in which a method has been used to work out a fee prescribed by the Regulations
under subsection 520(4C). As such, reconsideration will not be available where there is
no discretion used in working out the fee. Nor will reconsideration be available to
dispute the method determined to calculate the fee.
1.35 For example, fees may include a fixed and a variable component. The variable
component of applicable fees may be calculated using a complexity matrix, varying
depending on the complexity of an action. In this situation, a person who is dissatisfied
with the way in which the complexity matrix was used to determine the fees will be able
to apply to the Secretary to reconsider the method of that calculation. Conversely, the
automatic imposition of standard or fixed fees on the happening of an event such as
the making of an application will not involve any application of a method to work out a
fee, as the liability to pay the fee arises solely from the Regulations. As such,
section 514Y will not apply in this scenario.
1.36 A person will need to make a reconsideration application in the form prescribed in the
Regulations and must set out the reasons for the application (see subsection 514Y(3)).
The person will need to make the reconsideration application within 30 business days
after the applicant is informed of the fee (see subsection 514Y(4)). The Department will
inform the applicant of his or her rights under this section when providing notice of the
fees payable. As such, the 30 day period within which a request will need to be made
will start from the day the applicant is informed of their obligation to pay a fee, not the
day in which the fees are paid or become payable. A person may apply only once for
reconsideration (subsection 514Y(5)).
1.37 Section 514YA will set out the process to be followed on receipt of an application for
reconsideration of a fee. The Secretary must reconsider the way the method was used
to work out the fee and decide to confirm the fee or to work out a new fee by using the
method again (see subsection 514YA(1)). The Secretary would work out a new fee
where the specified method was incorrectly applied to the particular action. The person
undertaking the reconsideration must be the Secretary or a delegate of the Secretary
who is an employee of the Department that was not involved in working out the
disputed fee and be in a position senior to that of the person who initially worked out
the fee (see subsection 514YA(2)). This provision has been included to ensure
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Explanatory Memorandum - Cost recovery
decision-making processes are transparent and to provide access to a fair and
objective procedure for the internal reconsideration of decisions in relation to
discretionary fees.
1.38 Once a decision has been made, the Secretary or delegate must give the applicant a
written notice which states the outcome of the reconsideration and provides reasons for
that outcome (see subsection 514YA(3)). The reconsideration must be undertaken
within 30 business days of receipt of the application.
1.39 The provisions in Part 19A will operate as an internal merits review mechanism for
those whose rights and interests are affected in relation to the aspects of the imposition
of fees which involve some exercise of discretion.
1.40 However, the amendments do not provide for external merits review of the Secretary's
reconsideration decision. As discussed below, the method specified in the Regulations
for calculating a fee will include clear criteria for assigning a level of complexity to the
project. These criteria will be defined, and will be objective rather than discretionary
criteria. For example, the complexity of a project would be higher the greater the
number of different listed species impacted by the action, or the more components an
action had. These are objective facts rather than matters left to the decision makers'
discretion. The internal review process allows for the correction of errors in the
application of these criteria.
Item 16 - After subsection 520(4)
1.41 This item inserts new subsections 520(4A), 520(4B), 520(4C) into section 520 of the
EPBC Act to enable cost recovery arrangements for selected regulatory activities under
the EPBC Act and the Regulations.
1.42 Subsection 520(4A) will insert a head of power into the EPBC Act enabling the
Regulations to prescribe fees that are payable for the services the Minister or Secretary
provides in performing functions, or exercising powers, under the EPBC Act or
Regulations.
1.43 Subsection 520(4B) will provide that a fee prescribed by the Regulations is payable to
the Commonwealth. As such, any fees specified by the Regulations will be
recoverable by the Commonwealth.
1.44 Paragraphs 520(4C)(a) to (c) will provide for specific matters which may be prescribed
in the Regulations. The fees arising out of cost recovery will vary depending on the size
and complexity of the project under consideration, as the departmental resources
required to conduct a particular assessment will vary depending on these factors. The
Regulations will be able to prescribe two or more fees for the same matter (paragraph
520(4C)(b)) and prescribe a method for working out a fee (paragraph 520(4C)(c)). In
relation to paragraph 520(4C)(c), it is intended that the Regulations will include a
`complexity matrix' for environmental impact assessments, and the fees for these
assessments will be determined on a case-by-case basis using that matrix.
1.45 Subparagraph 520(4C)(e)(i) will enable the Regulations made for the purposes of
subsection 520(4A) to specify the way in which, and times at which, a fee is to be paid.
1.46 In this regard, it is anticipated that the department will provide the responsible person
with an estimate of the maximum applicable assessment fees when the assessment
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Explanatory Memorandum - Cost recovery
decision or controlled action decision is made. Assessment fees will then be payable in
stages prior to the commencement of each relevant stage of the assessment process.
The stages of assessment will be specified in the Regulations.
1.47 Subparagraph 520(4C)(e)(ii) will enable the Regulations made for the purposes of
subsection 520(4A) to specify the fees that must be paid, and by whom, in the event of
a transfer under section 145B or a change of person proposing to take an action under
section 156F. Where an approval is obtained by an entity with an exemption (the
transferor), and is then transferred to another entity which is not eligible for an
exemption (the transferee), the transferee may be required to pay all fees that would
have been payable if the transferee had been the original applicant. It is anticipated
that the transferee will be required to pay the difference between the fee paid by the
transferor and the full fee, before the transfer can occur. This provision has been
included in order to minimise any fee avoidance behaviours. An example of fee
avoidance behaviour is a situation in which a small business claims an exemption for
fees associated with an environmental impact assessment, but following the granting of
approval for the relevant activity, transfers the approval to a larger entity with which it is
affiliated, which would not have been eligible for an exemption if it were the original
applicant.
1.48 Subparagraph 520(4C)(e)(iii) will enable the Regulations made for the purposes of
subsection 520(4A) to specify the consequences of failure to pay a fee.
1.49 Subparagraph 520(4C)(e)(iv) will enable Regulations made for the purposes of
subsection 520(4A) to set out the circumstances in which the Minister may waive a fee.
The Minister will have the discretion to waive fees if he or she is satisfied as to certain
matters, which will be specified in the Regulations.
1.50 Subparagraph 520(4C)(e)(v) will enable Regulations made for the purposes of
subsection 520(4A) to specify the circumstances in which a person is exempt from
paying a specified fee. It is intended that the Regulations may include a small business
exemption provision for environmental impact assessments. It is anticipated that
persons who meet a `small business' test would be completely exempted from fees,
regardless of the scale of the project or the costs the department will incur in
conducting the assessment. The policy intention is that the exemption application
would be submitted by the proponent at the same time as the referral is submitted. If a
proponent did not meet the exemption criteria at the time of submitting a referral, but
later became eligible during the assessment or approval process, they would notify the
department of a change in circumstance and submit an exemption application related
to any fees for the remainder of the assessment or approval.
1.51 Subparagraph 520(4C)(d)(vi) will enable Regulations made for the purposes of
subsection 520(4A) to specify the circumstances in which a fee may be refunded, in
whole or in part.
Item 17 - Subsection 520(5)
1.52 This item makes a consequential amendment to subsection 520(5) of the EPBC Act as
a result of item 16.
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Explanatory Memorandum - Cost recovery
Item 18 - After section 521
1.53 This item inserts a new section 521A into the EPBC Act, which will mean that
timeframes in the EPBC Act do not run if all or part of a fee remains unpaid. Section
521A applies if a person has not paid all or part of a fee for service. In this situation:
(a) the Minister or Secretary will not have to do a thing required or allowed by
the EPBC Act. For example, if a fee remains unpaid, the Minister would
not have to approve a draft EIS submitted to the Minister by the proponent
under section 103. The Secretary would not have to begin preparing a
recommendation report if otherwise required to do so by section 105.
(b) where the EPBC Act requires or allows the Minister or Secretary to do
something relating to the service within a particular period of time, where
the period has not begun, any time period specified in the EPBC Act will
not begin running until the fee is paid. For example, if a fee remains
unpaid, the time period of 20 days for making a controlled action decision
specified in subsection 75(5) would not begin running.
(c) a time period specified in the EPBC Act which has started running will
stop until the required fee is paid. This provision would be relevant where
a fee stage occurs part way through a time period.
(i) For example, if the assessment approach is assessment on referral
information under Division 3A of Part 8, the Secretary has 30 days
to prepare a recommendation report. If a person paid a fee at the
start of the period, and another fee was payable after the public
comment period required by section 93(3), at day 16, the 30 day
`clock' stops running until the further fee was paid. The clock would
restart the day after the fee was paid (see new subsection 521A(2)),
and this would restart the clock on day 16. The period would then
run until day 30.
1.54 Subsection 521A(2) will make it clear that the day that the fee is paid is not to be
counted in the relevant period. For example, if the fee was paid on Tuesday, the clock
would not commence or recommence (as relevant) until Wednesday.
Item 19 - Section 528
1.55 Item 19 inserts a definition of action management plan into section 528 of the EPBC
Act. An approval may be subject to the approval holder submitting and implementing
an action management plan. The action management plan is a plan for managing the
impacts of the action on a matter protected by a Part 3 provision. Part 3 provisions
concern matters of national environmental significance. The definition includes the
example of a plan for conserving habitat of a species. This type of plan is not new, as a
plan for managing impacts can currently be attached as a condition of an approval.
Item 20 - Application
1.56 The amendments made by items 2 to 5 and 12 to 19 of this Schedule apply in relation
to a referral of a proposal to take an action that is received by the Minister on or after
14 May 2014 in respect of which a service is provided on or after this item commences.
These amendments all relate to the charging of fees for services. Fees will only be
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Explanatory Memorandum - Cost recovery
applied in respect of services performed on or after the day this item commences in
relation to a referral received by the Minister on or after 14 May 2014. Note that the
provisions relating to strategic assessments and assessment by inquiry will commence
on 1 July 2014, or on Royal Assent, whichever date is later.
1.57 For example, if a project has been referred after 14 May 2014 and is in the assessment
phase following the introduction of cost recovery, only the fees and charges relating to
the assessment after the introduction date of cost recovery will be payable. If a project
is referred after the commencement of cost recovery, then all fees, including the
referral fee, would apply. If a project was referred prior to the 14 May 2014, no fees will
be payable at any stage.
1.58 The 14 May 2014 is the day on which the department confirmed publicly that cost
recovery would proceed for environmental assessments under the EPBC Act.
Extensive consultations were carried out with stakeholders in 2011-12 on cost
recovery, and the Department's website has flagged the future introduction of cost
recovery since May 2012.
1.59 This provision ensures that no incentive is created to refer prior to commencement of
cost recovery in order to avoid fees, but these amendments will not retrospectively
impose fees. The fees will only apply in relation to decisions/processes that occur after
the day this item commences and will therefore not involve retrospectivity because the
service for which the fee will be imposed will be provided after the commencement of
this item.
1.60 The amendment made by item 1 (including the new definition in item 19), which is the
requirement for the Minister to give notice that a person may elect to submit a
management plan, will apply to all assessment approach decisions the Minister makes
after the item commences.
1.61 The amendments made by items 6 to 11, 14 and 19 will apply in relation to an
approval, whether granted before, on or after the day this item commences. These
items concern conditions of an approval requiring an action management plan to be
submitted and implemented. This will ensure that these provisions can apply to an
approval already in existence at the time this item commences, or an action currently
being assessed under the EPBC Act. However, approval holders will only be required
to pay fees for services with respect to action management plans if the action was
referred on or after 14 May 2014.
1.62 This will allow conditions imposed on approvals from the time this item commences to
include action management plans, the variation of conditions attached to existing
approvals to include management plans and a generic process for amending action
management plans, regardless of when the action was referred and approved. This will
ensure that Department can implement the same processes for all approvals,
regardless of whether the approval holder must pay fees for those actions.
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