Legal Practice Briefing No. 22

Number 22

10 November 1995

AMENDMENTS TO ADMINISTRATIVE
PROCEDURES APPROVED UNDER THE EPIP ACT

Introduction

On 5 May 1995, amendments to the Administrative Procedures
approved under the Environment Protection (Impact of Proposals)
Act 1974 ('the EPIP Act') came into force. These amendments
represent the Commonwealth's response to the decision of
the Federal Court in Tasmanian Conservation Trust Inc v
The Minister for Resources and Anor (1995) 127 ALR 580
('Gunns case'). In the light of these amendments, the Minister
has discontinued his appeal against the decision in Gunns
case.

This briefing provides a short summary of the decision
in Gunns case. The decision was discussed in more detail
in Legal Practice Briefing No. 16 which was published
on 23 February 1995. However, it is critically important
to note that as a result of the amendments to the Administrative
Procedures many of the issues discussed in Legal Practice
Briefing No. 16 are no longer relevant to the operation
of the EPIP Act. Accordingly, Legal Practice Briefing No.
16 must be read subject to this briefing.

This briefing provides a detailed analysis of the amendments
to the Administrative Procedures and summarises the operation
of the EPIP Act in light of these amendments.

It is not possible to identify in this briefing all of
the relevant issues or to set out procedures that will
ensure compliance with the EPIP Act in all cases. As there
are serious consequences for the Commonwealth and private
parties if Commonwealth actions and decisions are vulnerable
to challenge, officers should seek further legal advice
in relation to any specific issues that arise.

The object of the EPIP Act is to ensure, to the greatest
extent practicable, that matters affecting the environment
to a significant extent are fully examined and are taken
into account in relation to Commonwealth actions and decisions:
subsection 5(1). It is the Administrative Procedures approved
under the EPIP Act which detail the environmental assessment
process applying to Commonwealth actions and decisions.

Gunns Case

In Gunns case, the Federal Court set aside a decision
of the Minister for Resources to grant a licence to export
woodchips because the Minister failed to comply with the
requirements of the Administrative Procedures approved
under the EPIP Act.

At the time the Minister for Resources granted the licence,
paragraph 1.2.1 of the Administrative Procedures required
that, as soon as possible after 'any initiative' had been
taken in relation to a 'proposed action', the Minister
responsible for the action, or a person on behalf of that
Minister, was to inform the Department of the Environment,
Sport and Territories ('DEST') (in practice, the Environment
Protection Agency ('the EPA') in DEST) of the proposed
action and designate a proponent. A 'proposed action' was,
essentially, an action that was likely to affect the environment
to a significant extent.

Accordingly, prior to the amendments, the Administrative
Procedures required Commonwealth decision-makers to address
two issues before making a decision or taking action:

    • whether the relevant action would be likely to have
      a significant effect on the environment; and
    • whether an 'initiative' would be taken in relation
      to the proposed action.

    In Gunns case, the Minister for Resources decided not
    to refer the proposed grant of the woodchip licence to
    the EPA and not to designate a proponent. Sackville J held
    that the Minister made an error of law in determining that
    there was no occasion to designate a proponent. The error
    arose because, the Court held, the Minister applied the
    wrong test. He did not consider whether the proposed
    action affected or would affect the environment to a significant
    extent. Rather, he addressed the question whether the
    environmental impact of the proposed action was substantially
    different from that of proposals previously assessed. Accordingly,
    the Minister for Resources failed to comply with the EPIP
    Act because he failed to consider whether the woodchip
    operations were likely to affect the environment to a significant
    extent.

    It was submitted on behalf of the Minister that it was
    not necessary to consider whether there was likely to be
    a significant effect on the environment because no 'initiative'
    had been taken. It was argued that the grant of the woodchip
    licence in 1994 was not an 'initiative' because it was
    simply repetitive of earlier actions contemplated in an
    environmental impact assessment conducted in 1985. However,
    Sackville J rejected this argument. Sackville J concluded
    that the consideration by the Minister of the application
    for an export licence in 1994 constituted an initiative.

    Implications of Gunns Case

    Gunns case confirmed that, before taking action or making
    a decision, Commonwealth decision-makers were required
    to specifically consider whether a contemplated action
    was likely to have a significant effect on the environment.
    A decision might be set aside if there was a failure to
    specifically address this issue or, if the action was environmentally
    significant, there was a failure to refer the matter to
    the EPA and observe the relevant assessment procedures.
    Although this aspect of the decision graphically highlights
    the potential significance of the EPIP Act, it is consistent
    with the previous understanding of the Act and is relatively
    uncontroversial.

    However, Gunns case had major implications for ongoing
    Commonwealth decisions and actions in relation to projects
    for which a proponent had been previously designated under
    the EPIP Act for example, Commonwealth export approvals
    in relation to a mine operating within the scope of an
    earlier assessment. Gunns case demonstrated that, even
    if a project had previously been assessed under the EPIP
    Act, it was still necessary to designate a proponent in
    respect of each Commonwealth action proposed to be taken
    in relation to that project unless the Commonwealth
    action did not constitute an 'initiative'.

    The concept of an 'initiative' thus became critically
    important. However, Sackville J gave only limited guidance
    on what constituted an 'initiative', although he suggested
    the concept would be construed widely. On this basis, there
    was significant uncertainty as to whether, in relation
    to a project that had been previously assessed under the
    EPIP Act, it was necessary to continue to designate a proponent
    each time the Commonwealth took action. For example, Gunns
    case suggested it was likely that, at least in some cases,
    a proponent would need to be designated before the Commonwealth
    granted an export approval in relation to a mining operation,
    even when the mine was generally operating within the scope
    of a previous assessment. This aspect of the decision created
    significant uncertainty about the operation of the EPIP
    Act and, to an extent, represented a departure from the
    previous understanding of the Act's operation.

    The decision in Gunns case also identified another area
    of uncertainty. The Administrative Procedures required
    Commonwealth decision-makers to examine the environmental
    significance of a 'proposed action'. However, on the basis
    of the reasoning in Gunns case, it was unclear whether
    the 'proposed action' was the Commonwealth action (for
    example, the grant of an export approval) or the relevant
    private operations (for example, the mining operations).

    As a result of the uncertainty identified in the decision
    in Gunns case, it was decided to amend the Administrative
    Procedures. These amendments came into effect on 5May 1995.
    A motion to disallow the amendments was defeated in the
    Senate on 27 June 1995. As indicated above, in the light
    of the amendments, the Minister has discontinued his appeal
    against the decision in Gunns case.

    The Operation of the EPIP Act - the
    Amended Administrative Prodedures

    The two most significant features of the amendments to
    the Administrative Procedures are:

      • the deletion of the concept of an 'initiative' and
        its effective replacement by an exception for Commonwealth
        actions which are covered by an existing and adequate
        assessment: and
      • the insertion of a definition of an 'environmentally
        significant action'.

      The following paragraphs summarise the application of
      the EPIP Act to Commonwealth actions and decisions in light
      of the amendments to the Administrative Procedures. It
      is noted that there may be some Commonwealth legislation
      that does not allow environmental factors to be considered
      in relation to particular decisions. The EPIP Act will
      not apply to such decisions. Further advice should be sought
      if this issue arises.

      Step 1: Is there a Commonwealth action?

      The Administrative Procedures apply to every action that
      is a 'Commonwealth action'. A 'Commonwealth action' is
      essentially defined to include an action of a kind referred
      to in any of paragraphs 5(1)(a) to (e) of the EPIP Act
      that is proposed to be taken by, or on behalf of, the Commonwealth
      or an authority of Australia, either alone or in association
      with any other government, authority, body or person. The
      actions referred to in paragraphs 5(1)(a)(e) are as follows:

      (a) the formulation of proposals;

      (b) the carrying out of works and other projects;

      (c) the negotiation, operation and enforcement of agreements
      and arrangements (including agreements and arrangements
      with, and with authorities of, the States);

      (d) the making of, or the participation in the making
      of, decisions and recommendations; and

      (e) the incurring of expenditure.

      The definition of 'Commonwealth action' will include
      action of a kind identified above which arises in relation
      to direct financial assistance granted, or proposed to
      be granted, to the States: subsection 5(2) of the EPIP
      Act.

      It is clear that a wide range of actions will attract
      the operation of the Administrative Procedures including
      the granting of export approvals, the funding of projects,
      the conduct of defence activities and decisions on the
      operation of airports.

      Step 2: Is the proposed Commonwealth action an 'environmentally
      significant action' or is it, for other reasons, desirable
      to designate a proponent in order to achieve the object
      of the EPIP Act?

      Before the Commonwealth action is taken, the Minister
      responsible for the action ('the action Minister'), or
      a person acting on the Minister's behalf, is required to
      consider whether the action that is proposed to be taken
      is an action for which a proponent should be designated.
      A similar obligation is imposed upon Commonwealth authorities.
      (In this briefing, a reference to the action Minister includes
      a reference to a person acting on behalf of the action
      Minister or, where appropriate, the Commonwealth authority
      responsible for the action.)

      The Administrative Procedures require a proponent to
      be designated in relation to a Commonwealth action if the
      action Minister is satisfied that:

        • the action is an environmentally significant action;
          or
        • for other reasons, it is desirable to designate a proponent
          in order to achieve the object of the EPIP Act.

        In effect, before a Commonwealth action is taken, the
        action Minister is required to consider whether the action
        is an 'environmentally significant action' or whether it
        is, for other reasons, desirable to designate a proponent
        in order to achieve the object of the EPIP Act.

        Is the action an environmentally significant
        action?

        An 'environmentally significant action' is defined as
        follows:

        ' "environmentally significant action" means a Commonwealth
        action that will, or is likely to:

        (a) affect the environment to a significant extent,
        or to result in such an effect; or

        (b) have the effect of permitting or causing an action
        by another person that:

        (i) would otherwise be unlikely to occur; and

        (ii) will, or is likely to, affect the environment
        to a significant extent, or to result in such an effect;
        or

        (c) have the effect of promoting or facilitating an
        action by another person that will, or is likely to,
        affect the environment to a significant extent, or to
        result in such an effect.'

        In very general terms, the action Minister must consider
        whether a Commonwealth action or any action permitted,
        caused, promoted or facilitated by that Commonwealth action
        is likely to have a significant effect on the environment.

        For example, it is clear that a Commonwealth decision
        to grant a licence will be an environmentally significant
        action if the activities to be carried out under that licence
        are likely to have a significant effect on the environment.
        Accordingly, in deciding whether the grant of an approval
        to export coal is an environmentally significant action
        it is necessary to consider the environmental effects of
        the coal mining operations. Although the amendments make
        this position clear, the Administrative Procedures have
        always operated in this way the High Court essentially
        recognised this position in 1976 in Murphyores Incorporated
        Pty Ltd v The Commonwealth (1976) 136 CLR 1.

        By way of further example, a decision to provide funds
        to a project which is likely to have a significant effect
        on the environment will be an environmentally significant
        action, assuming the project would not otherwise proceed
        or the Commonwealth decision may be characterised as 'promoting'
        or 'facilitating' that project.

        The decision as to whether a proposed Commonwealth action
        is an 'environmentally significant action' will, like all
        administrative decisions, be subject to judicial review.
        Accordingly, it must be made after considering all relevant
        factors and no irrelevant factors and must not be manifestly
        unreasonable.

        The following paragraphs are intended to provide some
        guidance on the criteria to be applied in deciding whether
        a Commonwealth action is likely to be an 'environmentally
        significant action':

          • 'Significant' in the context of the EPIP Act is used
            in the sense of 'an important or notable effect on the
            environment': Gunns case at 603 citing Drummoyne
            Municipal Council v Roads and Traffic Authority of New
            South Wales (1989) 67 LGRA 155.
          • 'Likely', in the context of New South Wales environmental
            impact assessment legislation, has been defined as meaning
            a 'real chance' or 'real possibility' and not 'more probably
            than not': see Rundle v Tweed Shire Council (1989)
            68 LGRA 308. The term 'likely' when used in the Administrative
            Procedures should be given a similar meaning.
          • It is necessary to 'look to the whole undertaking of
            which the relevant activity forms a part to understand
            the cumulative and continuing effect of the activity
            on the environment': Gunns case at 603, citing Kivi
            v Forestry Commission of New South Wales (1982) 47
            LGRA 38. Clearly, the action Minister will be required
            to consider indirect effects when deciding if a proposed
            action is an 'environmentally significant action'.
          • Both site-specific and cumulative and continuing effects
            can be relevant for example, the effect of associated
            infrastructure requirements must be considered when deciding
            if the proposed establishment of a defence base or an
            airport is an environmentally significant action: Gunns
            case at 603 citing Jarasius v Forestry Commission
            of New South Wales [No.1] (1988) 71 LGRA 79.
          • Section 5A of the EPIP Act effectively provides that
            a Commonwealth action will be an environmentally significant
            action if the Commonwealth action or any action caused,
            permitted, promoted or facilitated by that action could
            threaten with extinction, or significantly impede the
            recovery of, a native species that is listed as endangered,
            vulnerable or presumed extinct, or an ecological community
            that is listed as endangered, under the Endangered
            Species Protection Act 1992. Information about species
            and ecological communities that are listed under this
            Act can be obtained from the Australian Nature Conservation
            Agency.

          If a project has previously been subject to designation,
          this suggests the project was considered previously to
          be likely to have a significant effect on the environment.
          If a decision is now taken not to designate a proponent
          in respect of the same or a similar project, it would be
          prudent to address the issue of why the project is now
          considered not likely to have a significant effect on the
          environment. (The Administrative Procedures provide for
          an exception in limited circumstances if a proponent has
          previously been designated: see Step 4 below.)

          Any decision on what environmental impacts may be attributable
          to the making of a decision and the extent of these impacts
          will require careful evaluation of environmental issues
          and evidence. In making this decision a Commonwealth decision-maker
          is not required to consult the EPA however, non-consultation
          may carry the risk of overlooking relevant factors and
          so give grounds for legal challenge.

          It is possible that a Commonwealth decision-maker will
          believe that he or she has not been able to obtain sufficient
          evidence to consider adequately whether a Commonwealth
          action is an environmentally significant action, even after
          consulting with relevant parties. If such circumstances
          arise, further legal advice should be sought.

          Is it, for other reasons, desirable
          to designate a proponent in order to achieve the object of
          the EPIP Act?

          The action Minister is also required to consider whether
          it is, for other reasons, desirable to designate a proponent
          in order to achieve the object of the EPIP Act. The intention
          of this provision is to provide the action Minister with
          a broad discretion to designate a proponent and refer the
          matter to the EPA even if he or she is not satisfied that
          the Commonwealth action is an environmentally significant
          action.

          In practice, the obligation to consider this issue will
          not arise if a proponent is designated on the basis that
          the action Minister is satisfied that the Commonwealth
          action is an environmentally significant action.

          Step 3: Referral to the EPA and designation of a proponent.

          If satisfied that a Commonwealth action is an 'environmentally
          significant action' or that, for other reasons, it is desirable
          to designate a proponent in order to achieve the object
          of the EPIP Act, the Commonwealth action must be referred
          to the EPA and a proponent must be designated.

          Once a proponent is designated, the Commonwealth action
          becomes a 'proposed action' for the purposes of the Administrative
          Procedures.

          Step 4: The exception a proponent previously designated.

          In some circumstances, a proponent need not be designated
          even if the Commonwealth action is an environmentally significant
          action.

          The exception, contained in paragraph 1.2.2 of the Administrative
          Procedures, is potentially applicable to a Commonwealth
          action ('the later Commonwealth action') in circumstances
          where a related Commonwealth action ('the earlier Commonwealth
          action') has already been referred to the EPA and a proponent
          designated. As such, the exception will be most relevant
          to ongoing projects or activities in respect of which regular
          Commonwealth actions are taken for example, a mine in respect
          of which regular export approvals are granted by a Commonwealth
          Minister. This exception was specifically included in the
          Administrative Procedures to overcome the uncertainty associated
          with the 'initiative' concept.

          The mere fact that a proponent has been designated previously
          will not automatically attract the exception. It is necessary
          to consider whether, as a result of the previous designation,
          the environmental effects of the later Commonwealth action
          have adequately been assessed. More specifically, the exception
          will apply only if the action Minister considers:

            • that the environmental effect of the later Commonwealth
              action has been fully taken into account in giving effect
              to the procedures in relation to the earlier Commonwealth
              action (paragraph 1.2.2(a)); or
            • that the environmental effect of the later Commonwealth
              action:
                1. is an extension of the environmental effect of
                  the earlier Commonwealth action; and
                2. is not of a nature significantly different from
                  that of the effect of the earlier Commonwealth
                  action; and
                3. does not significantly add to the effect of the
                  earlier Commonwealth action (paragraph 1.2.2(b)).

              The application of the exception in paragraph 1.2.2 will
              involve careful consideration of environmental issues and
              evidence. The following paragraphs are intended to provide
              only general guidance.

              It is important to note that paragraph 1.2.2 will obviate
              the need to designate a proponent only if the action
              Minister considers that the environmental effects attributable
              to the later Commonwealth action have been fully taken
              into account (paragraph 1.2.2(a)) or are such that the
              criteria in paragraph 1.2.2(b) are satisfied. That is,
              designation is not required only if the action Minister
              is able to conclude in good faith and on the basis of relevant
              factors that one of the tests in paragraph 1.2.2 is satisfied.
              If the action Minister is not able to so conclude (for
              example, because he or she has insufficient information),
              a proponent must be designated.

              Paragraph 1.2.2(a): The first limb of the exception
              will be satisfied if the environmental effect attributable
              to the later Commonwealth action has been fully identified
              and considered in giving effect to the Administrative Procedures
              in relation to an earlier Commonwealth action. This test
              may be satisfied, for example, if the Minister:

                • identifies the environmental effects of the later Commonwealth
                  action;
                • examines the scope of the environmental impact assessment
                  performed in relation to the earlier Commonwealth action.
                  (This may be an environmental impact assessment prepared
                  under State legislation if that assessment was considered
                  by the EPA in deciding that no assessment of the earlier
                  Commonwealth action was required under the EPIP Act);
                  and
                • is satisfied that the environmental effects of the
                  later Commonwealth action were fully identified
                  and examined in the earlier environmental impact assessment.

                For example, if an environmental impact statement ('EIS')
                was prepared under the EPIP Act in 1988 in relation to
                a coal mine and the environmental effects associated with
                that mine in 1995 were fully identified and considered
                in the 1988 EIS, it will not be necessary to designate
                a proponent before granting an export approval from that
                mine in 1995.

                Paragraph 1.2.2(b): The second limb of the exception
                requires the action Minister to compare the environmental
                effect of the later Commonwealth action with the environmental
                effect of the earlier Commonwealth action. Under this limb,
                it is not necessary to designate a proponent when the later
                Commonwealth action will result in an extension of the
                environmental effect beyond that of the earlier Commonwealth
                action provided that the extension of the effect on the
                environment is:

                  • not of a nature significantly different from the effect
                    of the earlier Commonwealth action; and
                  • does not significantly add to the effect of the earlier
                    Commonwealth action.

                  The difference between the first limb and the second
                  limb of the exception in paragraph 1.2.2 is illustrated
                  in the following example. Assume that it is proposed the
                  coal mine assessed in 1988 will triple in size in 1995
                  and new port facilities will be constructed to accommodate
                  this increase. If these developments were fully assessed
                  in the 1988 EIS then the first limb of paragraph 1.2.2
                  would apply and further designation would not be required.
                  However, if these developments were not fully assessed
                  in the 1988 EIS it is necessary to consider, before granting
                  an export approval in 1995, whether the environmental effect
                  of the expanded mine will be of a nature significantly
                  different, or will significantly add to, the environmental
                  effect of the 1988 mine. If so, a proponent will need to
                  be designated before a 1995 export approval is granted.

                  It is important to note that, notwithstanding that the
                  exception in paragraph 1.2.2 would otherwise apply, a Commonwealth
                  action may be referred to the EPA and a proponent designated
                  if the action Minister considers that it is desirable to
                  designate a proponent in order to achieve the object of
                  the EPIP Act: see Step 2 above.

                  Step 5: Determining the level of assessment

                  Once a matter is referred to the EPA and a proponent
                  is designated, it is the responsibility of the EPA and
                  the Minister for the Environment, Sport and Territories
                  ('the Environment Minister') to determine the level of
                  assessment that is required. The Environment Minister may,
                  but is not obliged to, require that:

                    • a public environment report ('PER') be prepared; or
                    • an EIS be prepared (an EIS is more detailed than a
                      PER).

                    It is important to note that the designation of a proponent
                    does not necessarily lead to a requirement for a PER or
                    an EIS. In determining the level of assessment, the EPA
                    and the Environment Minister must take into account a range
                    of environmental factors and any other relevant environmental
                    assessment, including any previous Commonwealth or State
                    assessment. In practice, it is common for the EPA to determine
                    that no PER or EIS is required if an adequate State assessment
                    has already been conducted.

                    The Environment Minister may not require a PER or an
                    EIS if satisfied that to do so would be contrary to the
                    public interest.

                    Step 6: Preparing the environmental impact assessment

                    The Administrative Procedures set out the relevant processes
                    that must be followed if the preparation of a PER or EIS
                    is directed: for example, the relevant public consultation
                    procedures. Although not expressly stated in the Administrative
                    Procedures, it is clear that the proponent of the proposed
                    action must prepare the EIS or the PER. The proponent may
                    be a non-Commonwealth entity for example, a company applying
                    for foreign investment approval.

                    Step 7: Carrying out a proposed action while the assessment
                    is conducted

                    The clear intention of the EPIP Act is that a proposed
                    action should not be carried out until the assessment process
                    under the Administrative Procedures has been complied with.
                    If a proponent is designated in relation to a proposed
                    decision and the decision is then taken before the Administrative
                    Procedures are complied with, it is possible a court would
                    set aside that decision if the decision were challenged:
                    for example, on the basis of a failure to take into account
                    relevant factors.

                    However, the amendments to the Administrative Procedures
                    expressly provide a mechanism enabling the Environment
                    Minister to permit certain proposed actions to be undertaken
                    before the assessment process is complete: see paragraphs
                    1A.1.11A.1.5. A proponent must be designated before permission
                    is sought.

                    Permission to proceed with a proposed action is available
                    only in relation to the 'ongoing operations of a project',
                    such as a mine that has been operational for some years.
                    Permission will not be available in relation to new projects
                    in respect of which there are no 'ongoing operations'.

                    It must be noted that permission is not automatically
                    available. The Environment Minister may grant permission
                    only if it is considered in the public interest to do so.
                    In assessing the public interest, the Environment Minister
                    must take into account any relevant advice provided by
                    the action Minister. In addition, the permission may be
                    granted subject to a condition that the proposed action
                    must not be continued after a specified time if the relevant
                    assessment process is not completed by a specified time.

                    For example, assume a proponent is designated in relation
                    to the grant of an export approval from a mine that has
                    been operational for a number of years. Prima facie, the
                    export approval cannot be granted until the Administrative
                    Procedures are complied with. However, if the Environment
                    Minister considers it is in the public interest to do so,
                    he or she may permit an export approval to be granted from
                    the mine while any required assessment is being undertaken
                    under the Administrative Procedures.

                    Step 8: Environment Minister makes recommendations

                    At various stages in the assessment process (whether
                    or not an EIS or PER is required), the Environment Minister
                    may make comments, recommendations or suggestions concerning
                    the proposed action to the action Minister. For example,
                    the Environment Minister may recommend that certain conditions
                    should be imposed in relation to a proposed action in order
                    to protect the environment.

                    Step 9: Consider the assessment and the recommendations
                    of the Environment Minister

                    All ministers, departments and Commonwealth authorities
                    are obliged to ensure that the outcomes of any environmental
                    assessment including any PER or EIS and the comments, recommendations
                    or suggestions made by the Environment Minister or his
                    or her Department are taken into account when deciding
                    whether to proceed with a Commonwealth action and, if so,
                    what conditions should be imposed.

                    However, the Environment Minister is not given the power
                    to veto a proposed Commonwealth action. In particular,
                    the relevant decision-maker is not bound to give effect
                    to the outcome of a PER or EIS or to the comments, recommendations
                    or suggestions of the Environment Minister. The decision-maker
                    is merely required to consider these factors before proceeding
                    with the proposed action. In this respect, it is relevant
                    to note the comments of a US Supreme Court judge who stated,
                    in relation to the US National Environment Policy Act (on
                    which the EPIP Act was based), 'NEPA merely prohibits uninformed
                    rather than unwise agency actions': Robertson v Methour
                    Valley Citizens Council (1989) 109 S.Ct. 1835 at 1846.

                    However, it must be understood that the consequences
                    of non-compliance with the EPIP Act and the Administrative
                    Procedures are potentially significant. A failure to observe
                    the required processes whether it be a failure to designate
                    a proponent or a failure to ultimately take into account
                    the outcomes of the assessment process may result in a
                    court setting aside a Commonwealth decision. This is, of
                    course, precisely what occurred in Gunns case.

                    Note: Two flowcharts have not been included in this
                    HTML version. The flowcharts are:

                    Table A: Deciding whether to designate a Proponent
                    under the EPIP Act

                    Table B: Summary of EPIP Act process after designation

                    Please contact the AGS Corporate Communications if
                    you would like to be sent printed copies of the flowcharts.
                    Telephone (02) 6253 7052.

                    Miscellaneous Issues

                    The Administrative Procedures make provision for various
                    other matters including:

                      • in limited circumstances, the granting of an exemption
                        to a Commonwealth action, or a class of Commonwealth
                        actions, from all or any of the requirements of the Administrative
                        Procedures;
                      • the conduct of inquiries into the environmental aspects
                        of Commonwealth actions for example, the Shoalwater Bay
                        Commission of Inquiry: see also section 11 of the EPIP
                        Act; and
                      • the carrying out of a review by the EPA of the environmental
                        aspects of a Commonwealth action, whether or not that
                        Commonwealth action has been completed.

                      To ensure compliance with the EPIP Act, Commonwealth
                      officers may wish to consult the EPA in relation to environmental
                      issues that arise in relation to proposed actions and decisions.
                      The Attorney-General's Legal Practice should be consulted
                      in relation to any legal issues arising from the application
                      of the legislation.

                      Review of the EPIP Act

                      The EPA is currently undertaking a comprehensive review
                      of the EPIP Act. Many of the substantive reform issues
                      identified in the review will be the subject of further
                      consultation in 1996: for example, issues relating to the
                      role of the Commonwealth and the jurisdiction of the EPIP
                      Act and issues relating to the process for initiating assessment
                      under the Administrative Procedures.

                      However, the Commonwealth is currently considering proposals
                      which would deliver procedural improvements to the Commonwealth's
                      environmental impact assessment process. These proposals,
                      if implemented, would involve amendments to the Administrative
                      Procedures in early 1996. The proposals are aimed at improving
                      the effectiveness and efficiency of the assessment process
                      once proposals are referred to the EPA.

                      Please note that the obligations described in this Briefing
                      are unlikely to be materially altered if the proposals
                      currently being considered are implemented. However, some
                      additional obligations may be introduced.

                      ISSN 1448-4803 (Print)
                      ISSN 2204-6283 (Online)

                      The material in this briefing is provided
                      for general information only and should not be relied
                      upon for the purpose of a particular matter. Please contact
                      the Legal Practice before any action or decision is taken
                      on the basis of any of the material in this briefing.

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