The Victorian Major Transports Projects Facilitation Act was introduced into Parliament on 12 August 2009 and rapidly passed through Parliament. The legislation will commence operation on 1 November 2009. The Premier will shortly release guidelines for the assessment of projects for declaration under the Act.

The Act establishes a new assessment process for major transport projects that overrides almost all current assessment and approval processes for these kinds of projects. It is the ‘cornerstone’ of the Government’s Victorian Transport Plan which seeks to deliver a range of major projects.

This Act represents a major shift in the way transport projects are assessed and approved and yet there has been no formal public consultation on this Act. An Act of this nature would normally have significant public consultation during its development and be released as an exposure draft for public comment. Although the parallel Transport Integration Bill has undergone extensive consultation, the Major Transport Projects Facilitation Act has not.

It is not clear whether the Government intends at some stage extend the operation of the Act to other projects, however the Act is drafted in a way in which the removal of the word ‘transport’ throughout the Act would make it open to be used for any major project approval.

The Act allows the Premier to decide which transport projects will come under this process. The Premier must appoint a Minister to be the project Minister and the project Minister must appoint a public body to be the proponent of the project. The Planning Minister has all approval powers under this Act. He or she decides whether a project must go through an impact management plan (IMP) process or a comprehensive impact statement (CIS) process. The CIS process is more onerous with a requirement for a panel review of the assessment and more public consultation.

In most cases, an IMP or CIS will replace all other approvals needed for the project including planning approvals, Flora and Fauna Guarantee Act approvals etc. The Government has stated that the Planning Minister will not require an EES for any project assessed under this Act.

See Attachment 1 for a summary of major provisions in the Act and Attachment 2 for a flow chart overview of the new streamlined assessment process for major projects.

There are many aspects of the Act which are of concern for public participation, environmental protection and good governance. Some of these are set out below:

• The Planning Minister effectively becomes the decision maker under all relevant legislation (see list below – although not all approvals under these Acts are excluded) (s 77 & 84);
  • Coastal Management Act 1995
  • Conservation, Forests and Lands Act 1987
  • Environment Protection Act 1970
  • Flora and Fauna Guarantee Act 1988
  • Forests Act 1958
  • Heritage Act 1995
  • National Parks Act 1975
  • Planning and Environment Act 1987
  • Road Management Act 2004
  • Water Act 1989
  • Wildlife Act 1975

• Any criteria that are mandatory considerations under the above Acts become non-mandatory when the Minister for Planning is making those decisions under this Act (s 77).
• The requirements of what must actually be assessed are largely left to be designated in guidelines, and there is nothing in the Act that states what the guidelines must include.
• The Minister for Planning only has to ‘have regard to’ the assessment & views of the EPA when making effective decisions under the Environment Protection Act.
• There are indications that the Government will seek to have this process included under the bilateral for the EPBC Act to exempt these projects from approval (not just assessment) under the EPBC Act (see s31).
• Rights to participate in the decision making process are compromised by short time frames for public comment, the ability of the Minister to exclude cross examination in an assessment committee hearing etc.
• There is no requirement for public consultation for major transport projects being assessed on the lower level of assessment (impact management plans).
• The Act specifically excludes all judicial review and merits review for all decisions in Parts 1-4 except the Minister’s s77 approval decision. No other decision can be challenged, appealed against, reviewed, quashed or called in question in any court or tribunal.
• There is no judicial review or merits review of the parts of the Minister’s s77 approval decision that are actually decisions under the other laws listed above.
• Judicial review of s77 approval decisions must be commenced within 21 days. There is no ability to review the Minister’s failure to make a decision under s77.
• While limited judicial review is available for the s77 approval decision, there is no appeal to VCAT from this decision.

• Summary of the Major Transports Projects Facilitation Act

For more information you may like to read the presentation by EDO Law Reform and Policy Director Nicola Rivers and EDO Solicitor Leilani Kuhn on 29 September 2009; EDO seminar (pdf)