Actions Determined as Requiring Approval, Actions Determined as Not Requiring Approval and Assessment Approach

Overview

The Environment Protection and Biodiversity Conservation Act 1999 was enacted by the Parliament of Australia to address the need for a comprehensive framework governing the protection of the environment, particularly in relation to biodiversity conservation and the impacts of developments. This legislation provides the legal basis for the Commonwealth government to intervene in matters that could significantly affect the environment, including heritage places, threatened species, and ecological communities. The Act aims to ensure that environmental considerations are integrated into decision-making processes concerning developments that could have a substantial impact on the environment. In the event of missed notifications or delays in processing referrals for approval under the Act, the Department of the Environment and Energy has instituted measures to rectify these issues, ensuring transparency and public access to information on the status of environmental assessments.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to actions that may significantly impact matters of national environmental significance, including World Heritage properties, listed threatened species and ecological communities, listed migratory species, listed marine species, the Great Barrier Reef Marine Park, declared Ramsar wetlands, the Commonwealth marine estate, the waters of the Australian Exclusive Economic Zone and the territorial sea of Australia, the nuclear actions prohibited by the Commonwealth, and the Commonwealth’s international environmental obligations. The Act applies to individuals, corporations, and other entities undertaking actions that may affect these matters. It operates on a national level, applying across Australia, including its territories. The Act may extend or restrict its application through subordinate instruments, which can include regulations and determinations made by the Governor-General. Some exclusions and exemptions exist, such as activities listed in the regulations, certain activities under state jurisdiction, and minor actions that are unlikely to have a significant environmental impact. The Act also includes provisions for accredited assessment processes, which can streamline the assessment of certain actions under state environmental laws.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) outlines various provisions that govern the approval and assessment of certain actions, as seen in the listed referrals. Section 75 of the EPBC Act identifies specific actions that require approval, such as the North West Shelf Project Extension by Woodside Energy Ltd. (EPBC Act s.75), while others, like the sand and clay extraction project by BGC (Australia) Pty Ltd, do not require approval (EPBC Act s.75). The assessment process for actions that require approval is detailed in section 87 of the Act, which mandates an accredited assessment process, as seen in the Woodside Energy Ltd. case (EPBC Act s.87). The Act imposes certain obligations on entities involved in actions that require approval. These obligations include ensuring that the assessment process is conducted in accordance with the accredited process, providing all necessary information and documentation to the Department of the Environment and Energy, and complying with any conditions that may be imposed as part of the approval process. For example, Woodside Energy Ltd. must follow the accredited assessment process under the Environmental Protection Act 1986 (WA) (EPBC Act s.87) and provide all relevant information to the Department to facilitate the assessment of the North West Shelf Project Extension. Breach of the obligations or conditions set out in the EPBC Act may result in civil or criminal penalties. For instance, failure to comply with the requirements of the Act or the conditions of an approval may result in fines or other penalties as prescribed by law. In cases of serious or repeated breaches, criminal penalties may apply, including imprisonment. The maximum penalties for breaches of the EPBC Act can vary depending on the nature and severity of the breach, and are determined by the relevant courts. It is important for entities involved in actions subject to the EPBC Act to be aware of their obligations and to ensure compliance with the Act to avoid any potential penalties or consequences.