Actions Determined as Requiring Approval, Assessment Approach and Decision on Approval

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (C2018G00659) was enacted by the Parliament of Australia to address the need for comprehensive environmental protection and biodiversity conservation at a national level. The Act was established to provide a coordinated approach to the protection of the environment, particularly in relation to activities that may have a significant impact on matters of national environmental significance. The policy objective of the Act is to balance economic development and environmental protection by requiring assessments of proposed actions that may impact on the environment and biodiversity, with a focus on preventing significant detrimental impacts. The Act provides for the regulation of activities that may affect listed threatened species, ecological communities, and heritage places, as well as the consideration of proposals that may result in adverse impacts on water resources, the marine environment, the ozone layer, and the atmosphere. The Department of the Environment and Energy is responsible for administering the Act, including the assessment and approval of proposed actions that may impact the environment. The Act also provides for the establishment of referral mechanisms, where actions that may have significant environmental impacts are referred to the Department for assessment and decision-making. In cases where notifications of referrals are missed or not made within the required timeframes, the Department has implemented systems and quality assurance procedures to address this issue and ensure transparency in the referral process. Despite any delays in notification, the Department assures that these do not affect the assessment and decision-making process for the referred actions.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 is a Commonwealth Act that applies to a wide range of entities and activities across Australia. It encompasses projects and actions that may have significant environmental impacts, particularly those affecting matters of national environmental significance such as listed threatened species, ecological communities, World Heritage properties, and wetlands of international importance, among others. The Act applies to both private and public entities, including companies, individuals, and government bodies, whenever their actions may trigger the need for assessment and potential approval under the Act. The geographic reach of the Act is national, as it applies to projects and actions throughout Australia, not limited to a particular state or territory. There are certain exclusions and exemptions under the Act, including activities that are regulated under other Commonwealth, state, or territory environmental laws, and minor actions that are unlikely to have a significant impact on matters of national environmental significance. The application of the Act can be extended or restricted through subordinate instruments, which provide further detail on the types of actions that require approval, assessment processes, and conditions that may apply to approved actions.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) includes various provisions that govern the approval process for actions that may affect listed threatened species and communities. Under sections 75 and 133 of the EPBC Act, certain actions require ministerial approval, and the Act provides for different assessment approaches depending on the nature of the proposed action. For example, section 75 specifies the actions determined as requiring approval, while section 133 outlines the decision on approval, including any conditions that may be imposed. Section 18 and 18A of the EPBC Act concern listed threatened species and communities, which are key considerations in the approval process for actions that may impact them. The EPBC Act imposes several obligations on parties or entities that are subject to its provisions. For instance, proponents of actions that require approval must provide the Department of the Environment and Energy with relevant information and documentation, such as preliminary documentation, as outlined in section 87 of the Act. Additionally, proponents must comply with any conditions imposed on the approval of their actions, as stipulated in section 133. Failure to comply with these obligations may result in legal consequences, including potential penalties. Breaching the provisions of the EPBC Act can result in both civil and criminal penalties. For instance, under section 534 of the Act, a person who commits an offence against the Act may be liable to a fine of up to $66,000 for a individual offence and $330,000 for a corporate offence. Furthermore, under section 535, a person who engages in conduct that constitutes a breach of the Act may be subject to an administrative penalty order, which can include fines of up to $1.1 million for individuals and $5.5 million for corporations. The Act also provides for the possibility of imprisonment for certain offences, with maximum penalties ranging from 2 to 7 years, depending on the nature and severity of the offence. It is important for parties and entities governed by the EPBC Act to be aware of these potential consequences and to ensure compliance with the Act's provisions.