Actions Determined as Requiring Approval, Actions Determined as Not Requiring Approval, Assessment Approach and Outcome of Request for Reconsideration of S75(1) Decision

Overview

The Environment Protection and Biodiversity Conservation Act 1999 was enacted by the Australian Parliament to address the need for a comprehensive framework that protects and manages the nation's environment, including its biodiversity and heritage. This legislation establishes a national system for the protection of the environment, including the conservation of biodiversity, and provides for the assessment and approval of actions that may significantly impact matters of national environmental significance. The Act aims to ensure that significant environmental impacts are identified and managed through a rigorous approval process, thereby contributing to the sustainable use and conservation of Australia's natural resources. The Department of Agriculture, Water and the Environment is responsible for the administration of this Act, with a policy objective of balancing economic development and environmental protection.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to a broad spectrum of entities and activities that may impact on matters of national environmental significance. This includes World Heritage properties, National Heritage places, listed threatened species and ecological communities, and listed migratory species. The act applies to projects undertaken by private companies, public authorities, and individuals, and covers a wide range of industries including mining, agriculture, forestry, renewable energy, and telecommunications, among others. The geographic reach of the Act is national, with the Commonwealth having jurisdiction over matters that impact on national environmental significance. However, the Act can also extend its application through subordinate instruments, such as bilateral or multilateral agreements, to cover activities that occur outside of Australia’s jurisdiction if they impact on matters of national environmental significance. Certain actions may be exempt from the requirement for approval under the EPBC Act, such as those that are undertaken in a particular manner, as specified in the legislation or in subordinate instruments. The Act does not apply to state-controlled matters unless they impact on matters of national environmental significance. The Department of Agriculture, Water and the Environment regularly publishes notifications of referrals for approval under the EPBC Act, although there may be occasional missed notifications or delays in processing.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (the "EPBC Act") outlines several key provisions regarding the protection of the environment, particularly concerning actions that may impact areas of national or international significance. Section 75 of the Act specifies the actions that require approval, such as the proposed Doughboy Wind Farm in New South Wales (EPBC Act s.75) and the Sand Extraction Project Maroota in New South Wales (EPBC Act s.12, s.15A, s.15B, s.15C, s.18, s.18A). These sections highlight that certain activities, if they are likely to have a significant impact on World Heritage properties, National Heritage places, listed threatened species and communities, or listed migratory species, must undergo an approval process to mitigate potential adverse effects. The Act imposes obligations on parties and entities to ensure that any proposed actions that fall under its purview comply with the necessary assessment and approval requirements. For instance, the Doughboy Wind Farm project must adhere to stringent environmental impact assessments and adhere to any conditions set forth by the Department of Agriculture, Water and the Environment to protect the listed threatened species and communities. Similarly, the Sand Extraction Project Maroota must ensure that its operations do not adversely affect World Heritage properties or National Heritage places. Failure to comply with the requirements of the EPBC Act can result in severe consequences. The Act provides for both civil and criminal penalties for breaches. For example, under section 528 of the Act, a person who contravenes any of the provisions may be liable to a penalty of up to $210,000 for an individual offence and up to $1.05 million for a corporate offence. Additionally, section 528A imposes stricter penalties for offences that involve serious environmental harm, where the maximum penalty for an individual is up to $630,000 or imprisonment for up to five years, or both, and for a corporation, up to $3.15 million or both. These stringent penalties underscore the importance of adhering to the Act's provisions to protect Australia's environmental heritage.