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 was enacted by the Australian Parliament to address the need for comprehensive protection of the environment, particularly in relation to matters of national environmental significance. This legislation aims to provide a framework for the conservation of biodiversity and the protection of the environment from significant impacts of proposed actions, including those that may affect listed threatened species and ecological communities. The Act outlines processes for assessing and approving actions that may have environmental impacts, and it establishes mechanisms for public notification and participation in decision-making processes. The Department of Agriculture, Water and the Environment is responsible for administering the Act and ensuring compliance with its provisions, including the timely notification of the public regarding referrals for approval under the Act.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to actions that may have a significant impact on matters of national environmental significance, such as listed threatened species, communities, and heritage places. The Act applies to both individuals and entities, including companies and government bodies, and covers a wide range of industries and activities, including mining, energy generation, and residential development. The geographic reach of the Act is national, with the Commonwealth having jurisdiction over matters of environmental significance that cross state and territory boundaries. The Act includes provisions for exclusions, exemptions, and thresholds, and may be extended or restricted through subordinate instruments such as regulations or guidelines. The Department of Agriculture, Water and the Environment is responsible for administering the Act and ensuring that actions that may have a significant environmental impact are assessed and approved or rejected in accordance with its provisions. The department has implemented systems and quality assurance procedures to minimise the risk of missed notifications and to ensure that the public is kept informed of the processing of referrals for approval under the Act.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) governs actions that may impact listed threatened species and communities. Under sections 75 and 133 of the Act, certain actions are determined to require approval (sections 75(1) and 75(2)), while others do not (section 75(3)). For example, APA VTS Australia's proposed energy generation and supply project in Victoria is an action determined to require approval (s.75(1)), while Boral Resources' mining project in New South Wales is determined not to require approval (s.75(3)). The Act also outlines the assessment approach for actions that require approval (section 87), such as Lendlease Communities' residential development project in New South Wales, which is currently undergoing preliminary documentation review (s.87(1)). The Act provides for the approval of actions with conditions (section 133), as demonstrated by the approval of Covalent Lithium's mining project in Western Australia (s.133(1)). The EPBC Act imposes obligations on parties and entities that must seek approval for actions that may impact listed threatened species and communities. These parties must submit an application for approval (section 75(4)), provide relevant information and documentation (section 87(1)), and comply with any conditions imposed by the Minister (section 133(2)). Additionally, parties must ensure that their actions do not harm listed threatened species or communities and must mitigate any adverse impacts to the greatest extent possible (section 18(1)). Failure to comply with the Act's requirements may result in civil or criminal penalties. Breaches of the EPBC Act may result in civil or criminal consequences. For example, a person who takes, injures, or kills a listed threatened species or destroys or damages a listed threatened community may be guilty of an offence and face a maximum penalty of 12 months' imprisonment or a fine of up to $105,000 (section 213(1)). Similarly, a person who fails to comply with an approval condition may be guilty of an offence and face a maximum penalty of 12 months' imprisonment or a fine of up to $63,000 (section 139(2)). The Act also provides for the imposition of administrative penalties for breaches of certain provisions, such as failure to provide relevant information or documentation (section 545(1)). The maximum penalty for an administrative penalty offence is $5,250 (section 545(4)). The Department of Agriculture, Water and the Environment has implemented quality assurance procedures to minimise the risk of missed notifications, but where a missed notification is identified, it will be notified to the public even if the timeframe for notification has lapsed.