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

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted by the Commonwealth Parliament to address the need for comprehensive protection of the nation's environment, particularly focusing on matters of national environmental significance. This includes the protection of listed threatened species and communities, listed migratory species, wetlands of international importance, and Commonwealth marine areas, among other environmental concerns. The EPBC Act serves as a critical regulatory framework that governs actions that may impact the environment, ensuring that these actions are assessed and approved where necessary to prevent significant harm. The Act reflects the policy objective of integrating environmental considerations into decision-making processes to promote sustainable development and conservation.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 applies to actions that may have significant impacts on matters of national environmental significance. These matters include listed threatened species and communities, listed migratory species, listed marine species, listed terrestrial species, wetlands of international importance, and Commonwealth marine areas. The Act applies to a broad range of entities, including individuals, corporations, and government authorities, when they undertake actions that require approval under the Act. The Act has national jurisdiction, applying throughout Australia, and includes provisions for the approval or assessment of actions that may impact on matters of national environmental significance. Certain actions are exempt from the requirements of the Act, including actions taken under certain other Commonwealth or state laws, and actions that are listed on the regulations as not requiring approval. The Act may also extend or restrict its application through subordinate instruments, such as regulations and guidelines.

Key Provisions

The main operative sections of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) that pertain to the provided references include sections 75, 18, 18A, 20, 20A, 16, 17B, 23, 24A, and 87. Section 75 requires that certain actions be approved by the Minister if they are likely to have a significant impact on matters of national environmental significance. These matters include listed threatened species and communities (sections 18 & 18A), listed migratory species (sections 20 & 20A), wetlands of international importance (sections 16 & 17B), and Commonwealth marine areas (sections 23 & 24A). Section 87 details the assessment approach, which involves preliminary documentation to determine if an action requires approval. The EPBC Act imposes obligations on the parties or entities it governs to ensure that actions likely to have a significant impact on protected environmental matters are assessed and, if necessary, approved by the Minister. These obligations include providing detailed preliminary documentation to facilitate the assessment process. For example, EMKC AU Industrial 2 Pty Ltd must provide documentation regarding the potential impact of their commercial development on listed threatened species and communities in Victoria. Similarly, Water NSW must detail the potential impact of their water management and use projects on listed threatened species, communities, and wetlands of international importance in New South Wales. Breaches of the EPBC Act can result in both civil and criminal consequences. For civil breaches, the maximum penalty for individuals is AUD 66,600 and for corporations is AUD 333,300. Criminal offences under the EPBC Act carry a maximum penalty of AUD 1.1 million for individuals and AUD 5.5 million for corporations. These penalties reflect the seriousness with which the Act treats the protection of Australia's biodiversity and environmental heritage. The Act is designed to ensure that entities undertaking actions that may impact protected environmental matters comply with their obligations to mitigate potential adverse effects. The Department of Agriculture, Water and the Environment has implemented systems and ongoing quality assurance procedures to minimise the risk of missing public notifications within the required timeframe. Despite these measures, there have been instances where notifications were missed. When such instances are identified, the Department will notify the public, albeit after the notification timeframe has lapsed. This ensures transparency and maintains the integrity of the referral process. The Department regrets any inconvenience caused by missed notifications but assures that these do not affect the subsequent processing of referrals or the decisions made.