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

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to provide for the protection of the environment, particularly matters of national environmental significance, by regulating activities that may have a significant impact. The Act was introduced to address the need for a comprehensive framework to manage environmental protection and biodiversity conservation across Australia, aiming to ensure sustainable development and ecological balance. The EPBC Act is administered by the Australian Parliament, with the overarching policy objective being to safeguard the environment while supporting economic growth and development. The Act plays a crucial role in protecting Australia's biodiversity, ecosystems, and heritage sites, ensuring that proposed activities are assessed and managed to mitigate potential environmental harm.

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 listed threatened species and communities, listed migratory species, and Commonwealth marine areas. This legislation encompasses a broad range of entities, such as corporations, individuals, and government bodies, and applies to various industries, including mining, residential and commercial development, and water management. The Act's jurisdictional reach extends across Australia, including the Commonwealth, states, and territories, ensuring a cohesive national approach to environmental protection. While the Act applies broadly, certain actions are determined not to require approval under specific sections of the Act, such as minor works or actions already regulated under state or territory laws. The EPBC Act also allows for the extension or restriction of its application through subordinate instruments, such as accredited assessment processes, which may provide streamlined pathways for certain types of actions deemed to have minimal environmental impact.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) governs actions that may impact on matters of environmental significance. Section 75 of the Act identifies actions that require approval, while section 133 specifies the decision on approval, which can include approvals with conditions. For example, the Solomon Iron Ore Project expansion by Fortescue Metals Group Limited was approved with conditions on 12 June 2018 (EPBC Act s.133). Section 75 also includes provisions for actions that do not require approval, such as the Redevelopment of Purvis Street school site in Hamilton Hill, Western Australia, which was determined not to require approval on 18 August 2018 (EPBC Act s.75). The Act imposes various obligations on parties and entities, including the submission of assessments and management plans to mitigate environmental impacts. For instance, Mardie Minerals Pty Ltd was required to submit an assessment under the accredited assessment process of the Environment Protection Act 1986 (WA) for the Mardie Project in Western Australia, which was dated 12 September 2018 (EPBC Act s.87). The EPBC Act also delineates offences, penalties, and consequences for non-compliance. Section 516 of the Act outlines civil penalties for contravening certain provisions, which can include fines up to $666,000 for individuals and $3.33 million for corporations. Section 528A specifies criminal penalties for actions involving wilful or reckless conduct that result in death or serious injury, with maximum penalties of up to 10 years imprisonment for individuals and up to $5.5 million for corporations. For example, a company found to have caused significant harm to listed threatened species during a mining project could face substantial fines or imprisonment, depending on the severity of the breach and the intent behind the actions. Additionally, the Act mandates public notification and consultation processes to ensure transparency and community involvement. Section 487 requires the Minister to give public notice of the referral of an action to the Environment Protection and Biodiversity Conservation Act List and to provide an opportunity for public comment. Failure to adhere to these notification requirements can result in legal consequences, including the potential for the approval decision to be quashed by a court if it is found that the public was not adequately notified or consulted. The Department of the Environment and Energy has implemented systems to minimize missed notifications, although any missed notifications are still required to be communicated to the public, even if outside the specified timeframe.