State Policies and Projects (Fees) Regulations 2023

Several defined terms and calculation methodologies drive the operation of these regulations. Project of State significance is a project declared as such by the Minister under section 18 of the State Policies and Projects Act 1993. The person proposing the project has the same meaning as in Part 3 of the Act; this is typically a developer, government agency, or private entity seeking approval for a large infrastructure or resource project. The regulations divide the assessment process into six discrete project stages listed in regulation 5(1): preparation of assessment guidelines; preparation and exhibition of the draft integrated assessment report; modification of that report and exhibition; preparation of the final recommendations report to the Minister; preparation of a report recommending additional conditions; and preparation of an amendment order. Each stage triggers a separate fee obligation.

The cumulative working period (regulation 3(2)) is the foundation of all variable fee components. It aggregates total hours worked by all persons in a class (chairpersons, delegates, staff, or consultants) on a given project stage, then divides by a standard daily divisor: 7.35 for staff (reflecting the Tasmanian State Service Award standard day) and 8 for all other classes. The result is expressed in days, rounded up to two decimal places. This creates a perverse incentive: the longer the Commission takes to complete a stage, the higher the fee. A proponent cannot control the pace of the Commission’s internal processes, but is nevertheless liable for the time spent.

Fee units are not defined within these regulations; they are a standard Tasmanian legislative device where the dollar value is set by another Act (typically the Fees and Fines Act or a treasury determination). As at the date of notification (29 November 2023), the value of a fee unit would have been a specified dollar amount, but it is subject to periodic indexation. The regulations apply the fee-unit concept to the base fee, the chairperson, delegate, staff and consultant rates, and the fixed 17,000 fee-unit initial fee.

Staff levels are tied to the Tasmanian State Service Award (regulation 9(3)) Band 5 through Band 8 and above. Level 1 staff (Band 5) attract 290 fee units per cumulative working day, rising to level 4 (Band 8+) at 510 fee units per day. Consultant levels (level 1 to 5) are determined by the arrangements made by the Commission under section 18(3) of the Tasmanian Planning Commission Act 1997. The consultant rates escalate steeply: level 1 at 560 fee units per day, level 5 at 2,810 fee units per day. The Commission thus has significant control over which level to assign a consultant, directly affecting the fee. Chairperson and delegate are separately defined in regulation 3; they are not included in the staff or consultant categories. A chairperson is the person assigned by the Commission to chair the integrated assessment; a delegate is any person to whom a function of the Commission has been delegated under the Tasmanian Planning Commission Act 1997. Their fees are 790 and 510 fee units per cumulative working day respectively.

The portion factor (regulation 6(2)) allocates the base amount across stages. The draft integrated assessment report stage has the highest factor (0.5), reflecting its central role; the assessment guidelines stage, the modification stage, the additional conditions report stage, and the amendment order stage each have a factor of 0.2; the final recommendations report stage has 0.3. These factors appear to be a proxy for the relative weight or complexity of each stage, but are not explained by cost studies or empirical data within the regulations.

The primary target of these regulations is the person proposing a project of State significance. This may be a single entity or multiple entities jointly proposing a project. Regulation 11 makes each joint proponent liable in equal shares unless they agree otherwise, but also allows the State or Commission to recover the full fee from any one proponent jointly and severally. This imposes significant financial risk on joint venture partners, especially if one partner becomes insolvent or declines to pay. The regulations shift this risk primarily onto private sector proponents, but government proponents (such as state-owned corporations or authorities) are also captured because the definition of “person” includes bodies corporate and unincorporated associations.

The Tasmanian Planning Commission is directly affected as the body responsible for conducting the integrated assessment and calculating the fees. Its internal resource allocation now has direct revenue implications: each hour its staff, chairpersons, delegates, and consultants spend on a project directly increases the fee payable by the proponent. This creates a moral hazard - the Commission faces no financial penalty for inefficiency, because any excess hours are passed through to the proponent. The Commission also has discretion to classify consultants into levels (regulation 10(2)), meaning it can significantly influence the final fee without independent oversight. The Commission’s ability to remit fees that exceed actual costs (regulation 13) provides a partial check, but it is discretionary and occurs only after payment.

Consultants engaged by the Commission are affected because their classification and billing rates are tied to the fee structure. The regulations do not prescribe how the Commission sets the level of a consultant; they simply refer to the “arrangements made by the Commission” under section 18(3) of the Tasmanian Planning Commission Act 1997. This gives the Commission broad latitude to assign higher levels, increasing the fee. Consultants themselves are not liable to pay the fee, but the cost is ultimately passed to the proponent.

The Minister is affected only in the initial eligibility stage: the Minister decides whether to waive the 17,000 fee-unit fee if acting on the Minister’s own initiative (regulation 4(2)). This provision gives the Minister a tool to avoid charging for projects the government itself wants to advance, but it does not apply to the stage fees, which are payable regardless.

Ratepayers, consumers, and shareholders bear the ultimate economic incidence. Large infrastructure projects recover regulatory costs through user charges, taxes, or higher prices. The fees may also deter marginal projects or increase the threshold at which a project becomes viable, affecting regional development and economic activity. The regulations do not require a cost-benefit analysis or a competitiveness assessment of the fee regime.

The central duty is the obligation to pay fees at specified times. Under regulation 4(3), the initial 17,000 fee-unit fee is due within 30 days after the order declaring the project is notified in the Gazette. Under regulation 12, each stage fee is due within 30 days after a defined trigger event: publication of assessment guidelines, completion of public exhibition of the draft report, completion of modification of the draft report, publication of notice of the final recommendations report, publication of notice of an additional conditions report, or publication of notice of an amendment order. The proponent must therefore monitor the Commission’s publication and exhibition milestones to avoid late payment.

The proponent has the right to seek remission of fees under regulation 13, but only after payment and only if the fee paid exceeds the “actual costs incurred by the Commission for that project stage”. The regulation gives the Commission discretion, not an entitlement. The term “actual costs” is not defined; it is unclear whether it includes all internal overheads or only direct salary costs. The proponent does not have a statutory right to an itemised account or to contest the Commission’s classification of staff or consultant levels before payment. The regulations do not prescribe a dispute resolution mechanism; any challenge would likely require judicial review or civil proceedings.

Joint proponents have a right of contribution and recovery among themselves under regulation 11(3). If one joint proponent pays more than its equal share (or more than its agreed share), it can recover the excess from the other proponents. This is a standard contribution right but may be costly to enforce if co-proponents are reluctant to pay.

The Minister has a duty to waive the initial fee when acting on the Minister’s own initiative (regulation 4(2)). This is not a full discretion; the word “is to” suggests a mandatory obligation upon satisfaction of the condition. The Minister also has the pre-existing power under section 18 of the Act to decide whether a project is a project of State significance, but the regulations do not create further duties for the Minister beyond the initial fee.

The Commission has the duty to calculate fees in accordance with regulation 6. The Commission also has the power to determine consultant levels and to assign chairpersons and delegates. While not stated explicitly, the Commission likely has an implied duty to act reasonably in classifying staff and consultants and in allocating hours; however, the regulations do not provide a standard for reasonableness. The cumulative working period depends on the Commission’s own time recording, which the proponent cannot inspect.

The regulations themselves do not prescribe criminal penalties for non-payment of fees. They do not refer to late payment interest, surcharges, or suspension of assessment activities for unpaid fees. The fee becomes a debt due to the State (for the initial fee) or to the Commission (for stage fees). Recovery would likely occur through civil proceedings in a Tasmanian court, with the government bearing the cost of litigation if the proponent defaults. The Act (State Policies and Projects Act 1993) may contain offence provisions for other matters, but the regulations do not cross-reference them.

The absence of explicit late-payment penalties means that a proponent who delays payment faces only the risk of legal action to recover the debt, plus potential interest under the Civil Liability Act or court rules. However, the Commission could potentially use non-payment as grounds to suspend work on the assessment, though the regulations are silent on this. The practical effect is that the Commission could refuse to proceed to the next stage until fees are paid, but such a refusal would need to be consistent with the Act’s timeframes and duties. The regulations do not create a statutory lien or security over the project.

The remission mechanism under regulation 13 does not impose penalties; it only allows return of excess fees. There is no penalty for overcharging by the Commission, nor a mechanism for the proponent to challenge the fee calculation before payment. The proponent must pay and then seek remission, bearing the time value of money.

Given that fee units are indexed annually (by other legislation), the real value of the fees increases automatically. A proponent who delays payment by a year may face a higher fee if the fee-unit value changes, but the regulations do not specify which day’s fee-unit value applies. The most natural reading is that the fee is calculated at the time it becomes due, so a later payment might require the then-current fee-unit value. This uncertainty may incentivise prompt payment to lock in lower costs.

The regulations sit under the State Policies and Projects Act 1993. They prescribe fees for services that the Act requires the Commission to perform. The Act itself does not appear in the source text, but the regulations cross-reference sections 18, 20, 22, 25, 26, 26A, and 26B of the Act. The fees do not replace any other approvals or licensing fees; they are supplementary costs specific to the integrated assessment process.

The Tasmanian Planning Commission Act 1997 is directly referenced: the definition of “delegate” relies on section 8 of that Act, and the classification of consultants depends on arrangements made under section 18(3) of that Act. This means any amendment to the Commission’s delegation powers or consultant engagement rules could affect how fees are calculated.

The Industrial Relations Act 1984 and the Tasmanian State Service Award determine staff levels for the purposes of regulation 9. The staff component rates are pegged to award bands (Band 5, Band 6, Band 7, Band 8 and above). If the award is varied or substituted, the levels may change without amendment to these regulations, because the regulations incorporate the award as in force from time to time. This creates uncertainty for proponents who try to predict staff costs.

The regulations do not explicitly interact with the Taxation Administration Act or GST legislation. Fees paid by proponents may be deductible as business expenses or may be capitalised into project costs. Proponents should consider whether the fees are subject to GST; the regulations do not state that fees are GST-exclusive or inclusive. Typically, statutory fees imposed by the Crown are not subject to GST if they are for a regulatory function, but a specific ruling would be needed.

There is no mention of the Australian Consumer Law, but if the Commission made misleading representations about likely fee levels, a proponent might have remedies under that law. However, the regulations give no right to fee estimates.

The State Policies and Projects Act 1993 may contain its own fee provisions; these regulations would prevail as subordinate legislation if inconsistent with older provisions, unless the Act expressly limits fee types. The regulations do not repeal any existing fee orders; it is assumed they replace any earlier fee schedule, but the source does not provide that history.

The version available as at 12 April 2026 is the original regulations as notified in the Gazette on 29 November 2023. The source text shows no amendments, deletions, or substitutions. The regulations were made under the enabling power in the State Policies and Projects Act 1993, and came into effect on the day of notification. No commencement delay is specified; regulation 2 states they take effect on the day of Gazette notification.

The version displayed is a consolidated version prepared by the Tasmanian Parliamentary Counsel’s Office. The absence of amendment references suggests that between November 2023 and April 2026, no statutory rules have amended these regulations. It is possible that the fee-unit value has been updated through the annual indexation of fee units in the parent Act (not shown here), but that amendment occurs in the enabling Act, not in these regulations. The portion factors and hourly rates have not been changed.

Given the economic environment, the real value of the fees has likely increased because fee units are typically indexed to the consumer price index or a similar benchmark. A proponent in 2026 pays a higher dollar amount than a proponent in 2023 for the same nominal number of fee units. This automatic escalation benefits the State’s budget without requiring legislative debate.

No transitional provisions are included in the source. Projects that were already undergoing assessment at the date of notification presumably became subject to these regulations for stages not yet completed, but the source is silent. The regulations do not provide for retrospective application; the initial fee under regulation 4(1) applies to projects considered after commencement. Projects already declared before November 2023 were likely governed by previous fee arrangements, but the source text does not address this.

The source text contains no reference to any court proceedings, appeals, or administrative reviews concerning these regulations. This is unsurprising given their relatively recent commencement (November 2023) and the specialised nature of the projects they affect. However, the potential for litigation exists on several grounds.

A proponent could challenge the calculation of a fee on the basis that the Commission misclassified staff or consultants, or incorrectly calculated cumulative working periods. The regulations do not require the Commission to provide a breakdown of hours or levels, but a proponent might seek reasons under the Tasmanian Right to Information Act or the common law duty to give reasons. If the Commission refused to remit fees despite clear evidence that actual costs were lower, a proponent could seek judicial review of the discretion under regulation 13. The discretion must be exercised reasonably, not arbitrarily. A challenge could allege that the Commission’s consultant classification arrangements are not transparent or are applied in a discriminatory manner.

The initial fee under regulation 4 could be challenged if the Minister failed to properly consider a waiver when acting on the Minister’s own initiative, though the regulation makes waiver mandatory, not discretionary.

There is no indication of class actions or representative proceedings. The small pool of potential litigants (only projects of State significance, which are rare) limits the volume of cases. No Tasmanian Supreme Court decisions citing these regulations have been reported in the source. The regulations are too recent for significant appellate interpretation.

Legal practitioners advising proponents should be aware that the regulations themselves may be subject to constitutional challenge if a proponent argues they impose a tax rather than a fee for service. Australian constitutional law requires that a compulsory exaction for services must be reasonably related to the cost of the service, not an arbitrary revenue-raising measure. The regulations use a formula rather than actual cost-recovery, which might be open to challenge if the fees consistently exceed costs. However, no such challenge is recorded.

Several features of these regulations can catch proponents off guard. First, the cumulative working period calculation uses different daily divisors for staff (7.35 hours) and for other persons (8 hours). This means an hour worked by a staff member counts as 0.136 days (1/7.35), while an hour worked by a consultant counts as 0.125 days. The same hour therefore contributes differently to the fee depending on the classification of the worker, not just the rate. The 7.35 figure appears tied to the Tasmanian State Service Award standard day, but it is not intuitive and may lead to miscalculations by proponents attempting to estimate fees.

Second, the portion factors sum to 1.7, meaning the base amount (60,000 fee units per factor) potentially accrues 1.7 times across all stages. However, not all stages will necessarily occur. For example, if no modification is required, the stage under regulation 5(1)(c) does not occur, and no fee is payable for it. The regulations do not require the Commission to pro-rate fees if a stage is partially completed but not needed. But the schedule of stages is fixed; the proponent cannot skip stages.

Third, consultant classification is entirely within the Commission’s control. Regulation 10(2) states classification is “in accordance with the arrangements, made by the Commission under section 18(3) of the Tasmanian Planning Commission Act 1997, under which the consultant has been engaged”. The proponent has no input and no right to review the level. A consultant who delivers relatively junior work could be classified at a higher level, increasing the fee. The rates for level 5 consultants are five times those for level 1. This creates a substantial cost risk for proponents when the Commission engages high-priced specialists.

Fourth, remission under regulation 13 is purely discretionary and uses the vague term “actual costs incurred by the Commission”. The Commission likely includes overheads, accommodation, and indirect costs, not just direct salary. The proponent cannot access the Commission’s costing model. If the Commission chooses not to remit, the proponent’s only recourse is judicial review on unreasonableness grounds, which is expensive and uncertain.

Fifth, the initial fee waiver only applies when the Minister acts on the Minister’s own initiative. If the Minister declares a project on application by a proponent, the 17,000 fee-unit fee is mandatory. This creates an asymmetry: the government can choose to exempt its own favoured projects, but private proponents always pay.

Sixth, joint and several liability under regulation 11(2) means the Commission can sue any one joint proponent for the entire fee, regardless of any internal agreements. This is a standard provision but may surprise a party that contributes a small share. The agreement among proponents can only vary the liability between themselves, not as against the Commission.

Seventh, no caps or estimates. The regulations do not require the Commission to provide a fee estimate before each stage starts, nor do they cap total fees. A proponent thus faces open-ended liability for the Commission’s chosen pace and resource allocation.

A person proposing a project of State significance should adopt a structured approach to managing fee obligations under these regulations. The initial step is to pay the 17,000 fee-unit eligibility fee (regulation 4(1)) within 30 days of the Gazette notification of the order under section 18(2) of the Act. If the Minister declares the project on the Minister’s own initiative, the proponent should confirm that the fee has been waived; the regulations make waiver mandatory in that case (regulation 4(2)).

For each subsequent project stage, the proponent must ensure payment within 30 days after the specific trigger event listed in regulation 12. To avoid late payment, the proponent should establish a monitoring system that tracks the Commission’s publication and exhibition milestones. The Commission will presumably issue invoices or notices when a trigger event occurs, but the regulations do not require an invoice; the obligation is triggered by the event itself. The proponent should contact the Commission early to understand its notification practices.

Because the fee is calculated based on cumulative working periods recorded by the Commission, the proponent has limited ability to control the amount. However, the proponent can request, on a non-statutory basis, that the Commission provide periodic time reports or cost estimates. The Commission may agree to such requests as a matter of good administration. The proponent should also review the classification of consultants (regulation 10) and seek information about the arrangements under which each consultant is engaged. If the Commission refuses to provide details, the proponent may consider making a right-to-information request, though this may cause delays.

When the fee for a stage is paid, the proponent should consider requesting remission under regulation 13 if the fee appears to exceed the Commission’s actual costs. The proponent should ask the Commission to explain its actual costs and to remit the difference. While remission is discretionary, a properly supported request that shows a clear overpayment may succeed. The proponent should keep records of all communications and any cost breakdowns the Commission provides.

If there are multiple proponents, they should enter into a written agreement specifying each party’s share of fees and the mechanism for reimbursement if one party pays more than its share. Default rules impose equal shares and joint and several liability (regulation 11). The agreement should also address reimbursement of legal costs incurred if the Commission recovers from one proponent and that proponent seeks contribution from others.

Proponents should monitor changes to the Tasmanian State Service Award and the fee-unit value, as these affect the dollar amount of rates and the initial fee. Indexation occurs outside these regulations and does not require amendment. Professional advice from a Tasmanian regulatory lawyer or accountant is advisable, as the regulations interact with the underlying Act and other planning legislation. Finally, proponents should budget for the possibility that fees may be higher than anticipated; no cap exists, and the cumulative working period is determined by the Commission. A contingency provision in the project budget for regulatory fees is prudent.