EXPLANATORY STATEMENT
Issued by the Authority of the Minister for the Environment and Water Resources
Environment and Heritage Legislation Amendment Act (No.1) 2006
Determination
The Environment and Heritage Legislation Amendment Act (No. 1) 2006 (the EHLA Act) amends the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to make the EPBC Act more efficient, effective and flexible; to allow for the use of more strategic approaches; improve processes and environmental outcomes; and to provide greater certainty in decision-making.
Item 4 of Division 1 of Part 2 of Schedule 2 to the EHLA Act provides that the Minister may determine in writing, that some or all of specified amendments of the EPBC Act to which subitem 3(3) applies are to apply in relation to an action to which Item 4 applies, subject to such modifications of Part 7 and Division 3 of Part 8, as are specified in the determination. Subitem 3(3) applies to all of the amendments of Part 7, Part 8, Division 1 of Part 9 and s.170A made by the EHLA Act with the exception of the following items: 172, 173, 178, 179, 188, 189, 194, 201, 202, 255, 256, 257, 258, 260, 261, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277 and 285. Item 4 applies to actions referred to the Minister under Division 1 of Part 7 of the EPBC Act before the amendments commenced, but only if the Minister had not, before that time, decided under s.87 of the EPBC Act on the approach to be used for the assessment of the relevant impacts of the relevant action.
The purpose of the Determination is to allow the Minister to apply amendments made to the EPBC Act by the EHLA Act to actions which, under the transitional provisions in Schedule 2 to the EHLA Act, would otherwise be subject to the referral, assessment and approval processes which were in place before the EHLA Act amendments came into force on 19 February 2007. The Determination modifies Division 3 of Part 8 in order to ensure that the Minister is not automatically in breach of statutory timeframes which, without such modification, would result from differences between the pre- and post-amendment processes.
Persons proposing to take actions which are the subject of the determination, and designated proponents for these actions (where relevant) were notified of the Minister’s proposal to make the Determination and given the opportunity to comment on the proposal. Appropriate Ministers, in States and Territories where actions which are the subject of the determination are proposed to be taken, were also notified of the Minister’s proposal to make the Determination.
The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Overview
The Environment and Heritage Legislation Amendment Act (No. 1) 2006 was enacted to enhance the efficiency, effectiveness, and flexibility of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), allowing for more strategic approaches, improved processes, and better environmental outcomes, as well as providing greater certainty in decision-making. This legislation was passed by the Australian Parliament with the intent to streamline and modernise environmental protection and biodiversity conservation frameworks. The Act's amendments were intended to apply to actions referred to the Minister under the EPBC Act prior to the amendments' commencement, but only if no decision had been made on the approach to be used for assessing the relevant impacts of the action. The determination allows the Minister to apply these amendments to actions that would otherwise be subject to the pre-amendment processes. This legislative instrument ensures that the Minister is not automatically in breach of statutory timeframes due to the differences between the pre- and post-amendment processes.
Scope and Application
The Environment and Heritage Legislation Amendment Act (No. 1) 2006, through its determination, amends the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to enhance its efficiency, effectiveness, and flexibility, and to facilitate more strategic approaches to environmental protection and biodiversity conservation. This determination applies to actions referred to the Minister under Division 1 of Part 7 of the EPBC Act before the amendments of the EHLA Act commenced, provided that the Minister had not already decided on the approach to be used for the assessment of the relevant impacts of the action at that time. The scope of the amendments extends to all specified changes to Part 7, Part 8, Division 1 of Part 9, and section 170A of the EPBC Act, with certain exceptions as outlined in the determination. The amendments aim to ensure that the Minister is not in automatic breach of statutory timeframes that could arise due to the differences between pre- and post-amendment processes. Persons proposing to undertake actions affected by the determination, along with designated proponents where relevant, were notified of the Minister's proposal and afforded the opportunity to comment. Additionally, appropriate ministers in states and territories where the actions are proposed to be taken were also notified and given the chance to provide feedback. The Determination itself is a legislative instrument under the Legislative Instruments Act 2003.
Key Provisions
The main operative sections of this Determination (F2007L01097) revolve around the ability of the Minister for the Environment and Water Resources to apply certain amendments of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to actions that were referred to the Minister before the amendments took effect on 19 February 2007, provided that the Minister had not yet decided on the assessment approach under section 87 of the EPBC Act. Specifically, Item 4 of Division 1 of Part 2 of Schedule 2 of the Environment and Heritage Legislation Amendment Act (No. 1) 2006 (EHLA Act) allows the Minister to make this decision in writing, subject to specific modifications to Part 7 and Division 3 of Part 8 of the EPBC Act as outlined in the Determination. These amendments generally aim to make the EPBC Act more efficient, effective, and flexible, as well as to improve processes and environmental outcomes.
The Determination imposes obligations on parties proposing to undertake actions that are subject to this amendment. These parties, along with designated proponents where relevant, were required to be notified of the Minister's proposal to make the Determination and were given the opportunity to comment on the proposal. Additionally, appropriate Ministers in states and territories where actions are proposed were also notified of the Minister’s proposal. This ensures that all relevant stakeholders are informed and can provide input on the application of these amendments to their actions.
The Determination also outlines the potential consequences for non-compliance with the provisions it sets out. While the Determination itself does not specify detailed offences, penalties, or consequences, the amendments to the EPBC Act that it applies could impose such requirements. Given the overarching goal of the EHLA Act to make the EPBC Act more efficient and effective, any failure to comply with these amended provisions could result in civil or criminal penalties as defined under the EPBC Act. For example, unauthorised actions that significantly harm protected matters could lead to fines or imprisonment. The exact penalties depend on the nature and severity of the breach, as specified in the amended sections of the EPBC Act.