ENVIRONMENT PROTECTION AND BIODIVERSITY
CONSERVATION ACT 1999
Part 10 Strategic Assessments
Section 146 Agreement
Strategic Assessment of the Environmental Management Authorisation Process for
Petroleum Activities in Northern Territory’s coastal waters to be administered by the
National Offshore Petroleum Safety and Environmental Management Authority
between
THE COMMONWEALTH MINISTER FOR THE ENVIRONMENT
and
THE COMMONWEALTH DEPARTMENT OF INDUSTRY AND SCIENCE
and
THE NATIONAL OFFSHORE PETROLEUM SAFETY AND ENVIRONMENTAL
MANAGEMENT AUTHORITY
CONTENTS
1
PARTIES
3
2
DEFINITIONS
3
3
PREAMBLE
4
4
BACKGROUND
5
5
TERMS OF REFERENCE FOR THE STRATEGIC ASSESSMENT REPORT
6
6
PREPARATION OF THE PROGRAM AND STRATEGIC ASSESSMENT
REPORT
7
7
ENDORSEMENT OF THE PROGRAM
7
8
APPROVAL OF ACTIONS UNDER THE PROGRAM
9
9
FEES
9
10
GOVERNANCE ARRANGEMENTS
10
11
OPERATION OF AGREEMENT
10
12
VARIATION, CONFLICT RESOLUTION AND TERMINATION
10
SIGNATURES
11
Schedule 1 – Fees Schedule
12
1.
FEES (clause 9)
12
2.
INVOICING DETAILS (clause 9)
12
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1
PARTIES
The Parties to this agreement are:
The Commonwealth Minister for the Environment
and
The Commonwealth Department of Industry and Science ABN 74 599 608 295
and
The National Offshore Petroleum Safety and Environmental Management Authority
ABN 22 385 178 289
2
DEFINITIONS
2.1 Unless stated otherwise in this Agreement, the definitions, meanings and terms in the
Environment Protection and Biodiversity Conservation Act 1999 apply to this
Agreement and its attachments.
2.2 In this Agreement:
Agreement means this strategic assessment agreement, entered into between the
parties on the date the last party executes this Agreement.
Authorisation process means the environmental management authorisation
process to be outlined in the Program which describes the assessment and
acceptance process for petroleum activities in NT coastal waters.
Business Day means a day that is not a Saturday, Sunday, public holiday or bank
holiday in the Australian Capital Territory.
Commonwealth waters means the offshore areas of each of the States and the
Northern Territory as defined in Section 8 of the Offshore Petroleum and
Greenhouse Gas Storage Act 2006 (Cth).
Department means the Australian Government department administering the
Environment Protection and Biodiversity Conservation Act 1999 (Cth).
EPBC Act means the Environment Protection and Biodiversity Conservation Act
1999 (Cth).
Fees means fees to be charged by the Department in accordance with the
determination made by the Minister under section 170CA of the EPBC Act for the
recovery of costs related to undertaking the strategic assessment as set out in the
Fee Schedule.
Fees Milestone means, in relation to the Fees, each Milestone detailed in Item 1 of
the Fees Schedule.
Fees Schedule means Schedule 1 to this Agreement.
Minister means the Minister responsible for administering the EPBC Act or the
Minister's authorised delegate.
NOPSEMA means the National Offshore Petroleum Safety and Environmental
Management Authority.
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NT means the Northern Territory.
NT coastal waters means all the sea waters off the coast of the NT that are
landward of Commonwealth waters.
OPGGS Act means the Offshore Petroleum and Greenhouse Gas Storage Act
2006 (Cth).
Parties means the Commonwealth Minister for the Environment, the
Commonwealth Department of Industry and Science, and the National Offshore
Petroleum Safety and Environmental Management Authority; each a Party.
Program describes a document (or documents) that outlines the Authorisation
Process for petroleum activities in NT coastal waters. These documents must also
demonstrate how the Authorisation Process will ensure that impacts on matters
protected under Part 3 of the EPBC Act are not unacceptable. This constitutes the
‘policy, plan or program’ pursuant to section 146 of the EPBC Act.
Strategic assessment means the strategic assessment to which this Agreement
relates, namely an assessment under Division 1 of Part 10 of the EPBC Act of the
adequacy of the Program to identify and manage impacts on matters protected
under Part 3 of the EPBC Act.
Strategic Assessment Report means the report prepared by NOPSEMA and the
Department of Industry and Science for the purposes of section 146(2) of the EPBC
Act assessing how the implementation of the Program will ensure the appropriate
level of consideration and management of impacts on matters protected under Part
3 of the EPBC Act. The Strategic Assessment Report will describe any
commitments or undertakings required in the Program to ensure acceptable
protection of matters protected under Part 3 of the EPBC Act, including through
legislative, regulatory, policy and/or operational changes.
Supplementary Report means the report prepared by NOPSEMA and the
Department of Industry and Science for the purposes of section 146(2) of the EPBC
Act, submitted to the Department following public exhibition of the draft Strategic
Assessment Report and Program, and which addresses and responds to public
comments including revisions to the Strategic Assessment Report and Program.
Terms of Reference means the terms of reference for the Program and the
Strategic Assessment Report for the purposes of section 146(1B) of the EPBC Act.
3
PREAMBLE
3.1 Petroleum activities that have, will have or are likely to have a significant impact on
matters protected under Part 3 of the EPBC Act require assessment and approval
under the EPBC Act.
3.2 In 2013-14 the Parties undertook a strategic assessment of the regulation of
petroleum and greenhouse gas activities in Commonwealth waters under Part 10 of
the EPBC Act, which maximised regulatory efficiency while maintaining high
environmental standards.
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3.3 At the inaugural meeting of the COAG Energy Council on 1 May 2014, Ministers
noted opportunities to further streamline regulatory arrangements for petroleum
activities, including the potential to reduce regulatory burden on the offshore
petroleum industry through the conferral of powers and functions on NOPSEMA for
occupational health and safety, integrity (including well integrity) and environmental
management in designated coastal waters.
3.4 The Department of Industry and Science and NOPSEMA have been working with the
NT Government towards the conferral of powers and functions on NOPSEMA.
3.5 As part of the streamlining process, the Parties agree to undertake a strategic
assessment under the EPBC Act of the Authorisation Process for petroleum activities
in NT coastal waters. The Authorisation Process would be in place once NT has
conferred powers and functions on NOPSEMA.
3.6 Recognising the benefits and potential impacts of petroleum activities, the
Department of Industry and Science and NOPSEMA will prepare a document (the
Program) describing how the Authorisation Process ensures the protection of matters
protected under Part 3 of the EPBC Act.
3.7 The Parties agree that economic, environmental and social benefit may be derived
from developing and implementing a Program that streamlines the relationship
between these regimes with a view of maximising regulatory efficiency, while
maintaining high environmental standards for matters protected under Part 3 of the
EPBC Act potentially affected by petroleum activities in NT coastal waters.
3.8 Should the Minister endorse the Program and NT decide to confer offshore petroleum
activities on NOPSEMA, the Minister may proceed to approve the taking of actions in
accordance with Part 10 of the EPBC Act.
3.9 The Parties agree to share information in accordance with the EPBC Act and the
OPGGS Act as applicable.
3.10 The Parties agree to work cooperatively, including with key stakeholders, to avoid
duplication and to progress the strategic assessment.
3.11 While the strategic assessment is underway it does not affect actions or activities
already approved under the EPBC Act or prevent proponents seeking assessment
and approval under Parts 7, 8 and 9 (referral, assessment and approval) of the EPBC
Act. The requirements of Northern Territory legislation will also continue to apply.
4
BACKGROUND
4.1 Subsection 146(1) of the EPBC Act allows the Minister to agree in writing with a
person responsible for the implementation of a policy, plan or program to assess the
impacts of actions taken under that policy, plan or program on matters protected
under Part 3 of the EPBC Act.
4.2 For the purposes of the Agreement, the Program is a document that will describe the
Authorisation Process. A Strategic Assessment Report will be prepared to assess
how the implementation of the Program will ensure the appropriate level of
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consideration and management of impacts on matters protected under Part 3 of the
EPBC Act.
4.3 A draft Strategic Assessment Report and draft Program will be made available for
public comment for a minimum of 28 calendar days. Following the public comment
period, a Supplementary Report (addressing public comments) and a revised
Program (if necessary) will be submitted to the Minister.
4.4 After considering these, the Minister may decide to endorse the Program if satisfied
that the reports adequately address the impacts and endorsement criteria in clause
7.3 to which this Agreement relates and that recommended modifications (if any) to
the Program made by the Minister, or modifications having the same effect, have
been made.
4.5 The Parties acknowledge that the endorsement of the Program itself does not
constitute any approval for the taking of actions under Part 10 of the EPBC Act.
4.6 If the Minister endorses the Program, the Minister may then approve the taking of an
action, or class of actions, in accordance with the Program and the EPBC Act. The
effect of an approval decision is that any actions or class of actions approved under
section 146B would not need further approval by the Minister under the EPBC Act if
taken in accordance with the endorsed Program.
4.7 If the Minister endorses the Program, the Parties acknowledge that, where
proponents propose to take an action in accordance with the Program that is not the
subject of an approval under section 146B, they are able to seek approval for that
action through the assessment and approval process established under Parts 7, 8
and 9 of the EPBC Act. Sections 87(3)(b) and 136(2)(e) of the EPBC Act provide that
the strategic assessment report for a policy, plan or program must be taken into
account in deciding the level of assessment and approval for actions that are referred
under the EPBC Act.
5
TERMS OF REFERENCE FOR THE STRATEGIC ASSESSMENT REPORT
5.1 The Parties agree to the preparation of draft Terms of Reference for a Strategic
Assessment Report on the impacts of actions under the Program on matters
protected under Part 3 of the EPBC Act pursuant to section 146(1B)(b) of the EPBC
Act.
5.2 The draft Terms of Reference will be published for public comment for a period of at
least 28 calendar days.
5.3 The Department of Industry and Science and NOPSEMA will release the draft Terms
of Reference for public comment by notice, as agreed with the Department.
5.4 The final form of the Terms of Reference will be agreed between the Parties by
exchange of letters, taking into account the comments (if any) received on the draft
Terms of Reference.
5.5 The Parties will publish the final Terms of Reference on their respective websites.
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6
PREPARATION OF THE PROGRAM AND STRATEGIC ASSESSMENT REPORT
6.1 The Department of Industry and Science and NOPSEMA are responsible for
preparing and publishing for public comment a draft Program and a draft Strategic
Assessment Report in accordance with this Agreement and the Terms of Reference.
6.2 The Department of Industry and Science and NOPSEMA will release the Program
and draft Strategic Assessment Report for public comment by notice, consistent with
arrangements for other major environmental impact assessment projects, including:
a) posting on the relevant agency websites;
b) publishing notices in newspaper(s) with national circulation; and
c) circulation to key stakeholder groups agreed between the Parties.
6.3 The notice inviting public comment must:
a) state the Program and draft Strategic Assessment Report are available for public
comment;
b) advise how copies may be obtained;
c) provide contact details for obtaining further information; and
d) state the period set by the Minister of at least 28 calendar days within which
public comments must be received in relation to the draft Strategic Assessment
Report (refer section 146(2)(b) of the EPBC Act).
6.4 Following the public comment period, the Department of Industry and Science and
NOPSEMA will:
a) prepare a Supplementary Report in accordance with this Agreement and the
Terms of Reference and revise the Program (if necessary), taking into account
any public comments; and
b) provide drafts of these reports to the Department for comment.
6.5 The Department of Industry and Science will provide the draft Program and draft
Strategic Assessment Report (refer clause 6.1) to the Department for comment prior
to them being released for public comment under clause 6.1.
6.6 The Department agrees to assist the Department of Industry and Science in ensuring
that the draft Strategic Assessment Report provided under clause 6.5 adequately
addresses the requirements for strategic assessments described in Part 10 of the
EPBC Act by providing comments on the draft Program provided under clause 6.5 in
a timely manner.
7
ENDORSEMENT OF THE PROGRAM
7.1 The Department of Industry and Science and NOPSEMA will submit to the Minister:
a) the draft Strategic Assessment Report (which was exhibited for public comment);
b) the Supplementary Report (explaining how relevant public responses have been
taken into account);
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c) the final Program (incorporating any revisions in light of public comments);
d) a summary of public comments received during the consultation relating to the
Strategic Assessment Report and Program; and
e) any other documents required to support the Department of Industry and Science
and NOPSEMA’s submission.
7.2 The Minister may endorse the Program if satisfied that the reports submitted under
clause 7.1 adequately address the impacts to which this Agreement relates, and that
any recommended modifications to the Program (clause 7.4), or modifications having
the same effect, have been addressed.
7.3 In determining whether to endorse the Program, the Minister will have regard to the
extent to which the Program meets the relevant objectives of the EPBC Act,
specifically:
a) to provide for the protection of the environment, especially those aspects of the
environment that are protected matters;
b) to promote ecologically sustainable development through the conservation and
ecologically sustainable use of natural resources;
c) to promote the conservation of biodiversity;
d) to provide for the protection and conservation of heritage;
e) to promote a co-operative approach to the protection and management of the
environment involving governments, the community, land-holders and indigenous
peoples; and
f) to assist in the co-operative implementation of Australia’s international
environmental responsibilities.
7.4 If the Minister is not satisfied that the reports adequately address the impacts of
actions on matters protected under Part 3 of the EPBC Act, or that the Program does
not provide for adequate protection of matters protected under Part 3 of the EPBC
Act, then:
a) the Minister can make recommendations to amend the Program;
b) the Department of Industry and Science and NOPSEMA may seek clarification
from the Minister on these recommendations;
c) the Department of Industry and Science and NOPSEMA will then submit to the
Minister for consideration the revised Program, and a summary of how the
Minister’s recommendations were given effect;
d) the Minister will consider the revised Program, and any supporting material
provided, and may accept it as the final Program; and
e) the Minister may request further modifications if still not satisfied that the
Program provides for adequate protection of matters protected under Part 3 of
the EPBC Act.
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7.5 The Minister will make a decision on endorsement or otherwise within 28 calendar
days of receipt of the final Program.
7.6 All Parties will make publicly available electronic copies of the endorsed Program, the
draft Strategic Assessment Report and the Supplementary Report.
8
APPROVAL OF ACTIONS UNDER THE PROGRAM
8.1 The EPBC Act provides that the Minister may approve, or approve with conditions,
the taking of an action or class of actions in accordance with an endorsed program
under Section 146B of the EPBC Act. In doing so, the Minister must act in
accordance with sections 146F to M of the EPBC Act. This includes considering
matters protected under Part 3 of the EPBC Act affected by the program and
economic and social matters.
8.2 The Minister will seek comment from other Australian Government Ministers with
administrative responsibilities relating to the proposed actions before approving the
taking of an action, or class of actions, pursuant to section 146C of the EPBC Act.
The comment period for each relevant Minister will be 10 business days.
8.3 All Parties will make publicly available electronic copies of any approval decision and
conditions through their respective websites.
8.4 Additional approvals for actions or classes of actions may occur progressively after
endorsement of the Program.
9
FEES
9.1 Section 170CA of the EPBC Act provides statutory authority for the Minister to charge
fees for assessing the relevant impacts of a controlled action by conducting a
strategic assessment.
9.2 The Minister has consulted with the Department of Industry and Science and
NOPSEMA and determined the Fees.
9.3 The Department of Industry and Science will pay the Fees to the Department in
accordance with the determination by the Minister and on the terms in this
Agreement.
9.4 The Department must provide invoices to the Department of Industry and Science for
the Fees in accordance with the requirements specified in Item 2 of the Fees
Schedule.
9.5 The Department of Industry and Science must pay to the Department the Fees set
out in an invoice given in accordance with clause 9.4 within 30 calendar days after
receiving the invoice. If this period ends on a day that is not a Business Day,
payment is due on the next Business Day.
9.6 Any Fees paid by the Department of Industry and Science to the Department are not
refundable.
9.7 The Department has formed the view that, pursuant to Division 81 of the A New Tax
System (Goods and Services Tax) Act 1999 (GST Act) and the A New Tax System
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(Goods and Services Tax) Regulations 1999 (GST Regulations), the Fees payable
under this Agreement do not constitute consideration for GST purposes.
Accordingly, it has determined that no GST is payable under this Agreement.
9.8 Notwithstanding clause 9.7, if the Commissioner of Taxation or the Department,
acting reasonably, determines that the Department is liable to pay GST on a supply
made under or in connection with this Agreement, the Department of Industry and
Science must pay to the Department, in addition to the Fees, an amount equal to the
GST payable on the supply upon receipt of a tax invoice from the Department.
10 GOVERNANCE ARRANGEMENTS
10.1 A schedule of dates will be developed by officials from the Department of Industry
and Science and NOPSEMA, and agreed by the Department.
10.2 Officials from the Department, Department of Industry and Science and NOPSEMA
will meet as agreed, to exchange information and monitor progress.
11 OPERATION OF AGREEMENT
11.1 The Parties acknowledge and agree that though this Agreement is not binding as a
matter of law, they will adhere to its terms and at all times conduct themselves as
though they were bound.
12 VARIATION, CONFLICT RESOLUTION AND TERMINATION
12.1 This Agreement may only be varied by written agreement (including electronic
communications) between the Parties.
12.2 If this Agreement is varied in accordance with clause 12.1, the Parties agree that the
Minister may, after consulting with the Department of Industry and Science and
NOPSEMA, make a new determination under section 170CA of the EPBC Act in
relation to the Fees to be charged for the Department's involvement in the strategic
assessment.
12.3 Where there is a dispute between the Parties to this Agreement on a particular
matter, the Parties will consult in a spirit of mutual cooperation in relation to that
matter and will use their best endeavours to negotiate a mutually acceptable
resolution.
12.4 This Agreement may be terminated by any Party by written notice to the other
Parties.
12.5 Unless the Agreement is terminated in accordance with clause 12.4 or the Program is
endorsed, the Parties will conduct a review of this Agreement no later than three
years following the date of signing to ensure the continuing relevance of this
Agreement.
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SIGNATURES
Mr Malcolm Thompson
Deputy Secretary of the Commonwealth Department of the Environment
(as delegate for the Commonwealth Minister for the Environment)
Dated
Mr John Ryan
Deputy Secretary of the Commonwealth Department of Industry and Science
Dated
Mr Stuart Smith
Chief Executive Officer of NOPSEMA
Dated
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Schedule 1 – Fees Schedule
1.
FEES (clause 9)
Fees Milestone
Fees payable
The Parties enter into this Agreement
$92,623.00
Receipt by the Department of a written request from the
Department of Industry and Science for the Minister to
consider approving the taking of an action or class of
actions in accordance with the endorsed Program under
section 146B of the EPBC Act
$5,812.00
Total Fees:
2.
$98,435.00
INVOICING DETAILS (clause 9)
(a)
The Department will issue invoices to the Department of Industry and Science
at the achievement of each Fees Milestone described in Item 1 above.
(b)
Invoices must adequately identify this Agreement and contain the following
information:
(c)
(i)
Reference: PRI-00003351
(ii)
the Fees Milestone covered by the invoice; and
(iii)
the amounts of any Fees included in the invoice.
Invoices must to be sent to:
offshoreenvironment@industry.gov.au
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