Actions Determined as Requiring Approval, Actions Determined as Not Requiring Approval and Variation of Conditions of Approval

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to provide for the protection of the environment, particularly with respect to matters of national environmental significance. This legislation was introduced to address the need for a cohesive framework to protect Australia’s biodiversity, natural heritage, and environmental assets from activities that might significantly impact them. The enacting body was the Commonwealth Parliament, with the policy objective of ensuring that the protection of the environment is integrated into decision-making processes across all sectors. The Act aims to balance economic activities with the imperative to conserve and sustainably manage Australia's natural resources. The Department of Agriculture, Water and the Environment plays a critical role in administering the Act, including the oversight of notifications, approvals, and monitoring compliance to ensure environmental protection is upheld.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to a wide range of entities and activities across Australia, with a focus on the protection of the environment and conservation of biodiversity. The Act encompasses various industries, including mining, transport, water management, and residential development, and applies to actions that are deemed to be "controlled actions" under the Act. The Act's jurisdiction extends to both Commonwealth and state lands, and its provisions are applicable nationally. There are specific exclusions and exemptions outlined in the Act, and in some cases, the application of the Act may be extended or restricted through subordinate instruments. The Act also includes provisions for the variation of conditions of approval for certain projects. The Department of Agriculture, Water and the Environment is responsible for processing referrals for approval under the Act and has implemented systems and quality assurance procedures to minimise the risk of missed notifications. In certain instances, the Department of Agriculture, Water and the Environment may miss public notifications on the Internet and in the Gazette relating to the processing of referrals for approval under Chapter 4 of the EPBC Act, or may not meet the required timeframes for notification. However, where a missed notification is identified, the Department will endeavour to notify the public of the missed notification, even if the timeframe for notification has lapsed. This ensures that the history of notifications for each referral is available to the public. The Department regrets any inconvenience that may be caused by a missed notification and assures that late notifications do not affect subsequent processing of referrals or assessments, nor do they impact the decisions made.

Key Provisions

The main operative sections of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) pertinent to the legislation in question are sections 75 and 143. Section 75 deals with the requirement for approval for certain actions that may significantly affect matters of national environmental significance. Conversely, section 143 provides for the variation of conditions of approval for actions already approved under the Act. In the context of the Beerburrum to Nambour Rail Upgrade Project (s. 2020/8803), section 75 stipulates that the action requires approval due to its potential impact on listed threatened species and communities. Similarly, the Kamay Ferry Wharves Project (s. 2020/8825) must obtain approval because it may affect listed threatened species and communities, as well as national heritage places. The obligations imposed by the Act on the parties involved include providing detailed information about the proposed action and its potential environmental impacts, engaging in consultation with relevant stakeholders, and submitting an Environmental Effects Statement (EES) for actions requiring approval. For example, the Department of Transport and Main Roads must undertake these steps for the Beerburrum to Nambour Rail Upgrade Project. The Act also mandates that the Minister consider public comments on the referral and make a decision on whether to approve the action and, if so, under what conditions. The obligations for variation of approval conditions (s. 143) include providing a detailed justification for the proposed changes and allowing for public consultation before the Minister makes a decision. The EPBC Act provides for both civil and criminal penalties for breaches of the Act and its regulations. Civil penalties for contravening the Act can include substantial fines, with the maximum penalty varying depending on the nature of the offence. For example, knowingly providing false or misleading information in an EES can result in a penalty of up to AUD 1.1 million for a corporation and AUD 220,000 for an individual, or three times the benefit gained from the offence (s. 515). Criminal penalties can also be imposed for serious offences, with maximum penalties including fines of up to AUD 2.75 million for corporations and AUD 550,000 for individuals, and/or imprisonment for up to five years (s. 526). Additionally, the Act allows for the recovery of costs associated with the investigation and prosecution of offences, as well as compensation for any environmental harm caused by the breach.