19 December 2013
Practice Group(s):
Energy, Infrastructure
and Resources
Reform Wave to Wash Away Blockages to Major
Australian Project Development Assessments
By Clive Cachia
Following on from our 'Open for Business – a Reform Wave to Hit the Australian Resources
Sector' Legal Insight in October 2013, the Productivity Commission has released its final
report on Major Project Development Assessment Processes (Report).
The Report was commissioned by the Commonwealth Government in December 2012 to
benchmark Australia's major project development assessment processes against
international best practice. The government at the time rightly acknowledged that the
development of major projects will be an important part of the ongoing economic
development of the nation and that all governments in Australia should strive towards
international best practice to attract necessary foreign capital.
The Report has noted that there is substantial scope to comprehensively overhaul Australia's
regulatory framework for development assessment and approval (DAA) and a number of
leading practices have been identified to be implemented by all Australian governments.
In particular, the Productivity Commission has identified the following areas within Australia's
DAA regime which require attention:

regulatory outcomes falling short of their objectives and conflicting policy objectives

unnecessary complexity and duplicative processes

lack of regulatory certainty and transparency in decision making

lengthy approval timeframes

inadequate consultation and enforcement.
While a complete list of the recommendations made in the Report can be found here on
page 31, specific tangible reforms proposed include the following:

Strategic assessments – rather than evaluating one project at a time, the cumulative
impacts that arise from multiple projects within a single geographic area should be
assessed. This can result in subsequent projects' DAAs being less resource intensive
and time consuming, since the issues have already been identified.

Major project coordination office (MPCO) – have each state and territory establish an
MPCO for large scale developments to:

o
advise proponents on their statutory requirements
o
coordinate the DAA process
o
electronically track and progress against agreed timelines.
One stop shop for environmental approvals – a plan to move towards a 'one project, one
assessment, one decision' framework for environmental approvals that includes:
Reform Wave to Wash Away Blockages to Major
Project Development Assessments
o devolving power to states and territories by increasing the number of state and territory
DAA procedures with accreditation by the Commonwealth
o strengthening state and territory approval and enforcement processes
o starting accreditation for less environmentally sensitive areas and if appropriate,
having state and territories accredit the Commonwealth for more environmentally
sensitive areas
o directing the Council of Australian Governments (COAG) to publish and report against
a timetable of these reforms.

Increased use of statutory timeframes – governments should use statutory timeframes to
increase timeliness, transparency and certainty to project proponents in various DAA
processes.

Limiting the use of stop the clock provisions – the ability of regulators to stop the clock on
statutory time periods should only be available where matters emerge that were not in
the terms of reference for review, or were not reasonably anticipated and where the
reasons for doing so are disclosed.

Separating politics from regulations – like Western Australia and Tasmania, all
jurisdictions should pursue the institutional separation of environmental
assessment/enforcement functions from policy functions. The Report noted that this will
promote public confidence, competitive neutrality and impartiality in DAA procedures.

Decreased use of merits review – enshrining the principle that Ministerial approval
should not be reviewable by review bodies other than on judicial review grounds (except
in cases where a primary DAA decision is not made by a Minister).

Better targeting of approval conditions – reducing unnecessary compliance costs and
improve outcomes by:
o refraining from imposing conditions where legislation already exists to achieve an
outcome
o undertaking public consultation on the assessment agency's draft recommendation
o publishing all conditions with an explanation as to how they mitigate a risk
o providing scope to remove, alter or add conditions where a strong case exists.

Improving third party opportunity for compliance actions – where not already done so, all
jurisdictions to legislate to enable third parties to bring enforcement cases on primary
approvals to courts or tribunals.
The Report notes that these reforms need to be comprehensive rather than piecemeal as a
regulatory system 'is only as good as its weakest link' and that a formal implementation
strategy is needed. COAG has already indicated its willingness to act on these
recommendations in its endorsement on 13 December 2013 for 'one stop shops' for
environmental approvals.
We will keep you updated of ongoing developments as this reform wave gathers pace.
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Reform Wave to Wash Away Blockages to Major
Project Development Assessments
Author:
Clive Cachia
clive.cachia@klgates.com
+61 2 9513 2515
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