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 by the Australian Parliament to enhance the efficiency, effectiveness, and flexibility of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). This Act aimed to address inefficiencies and gaps in the existing environmental protection framework by allowing for more strategic approaches and improving processes and environmental outcomes. The policy objective was to provide greater certainty in decision-making and to streamline the referral, assessment, and approval processes for environmental impacts. The amendments introduced by the EHLA Act were intended to be applied to certain actions referred to the Minister before the amendments came into force on 19 February 2007, subject to transitional provisions that ensured the Minister would not be in breach of statutory timeframes. The Environment and Heritage Legislation Amendment (EPBC Act Amendments) Determination 2007, issued under the authority of the Minister for the Environment and Water Resources, facilitated the application of these amendments by modifying relevant sections of the EPBC Act and ensuring procedural consistency.
Scope and Application
The Environment and Heritage Legislation Amendment Act (No. 1) 2006 introduces changes to the Environment Protection and Biodiversity Conservation Act 1999, aimed at enhancing the efficiency, effectiveness, and flexibility of the EPBC Act, and to improve processes and environmental outcomes. The Act 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 decided on the assessment approach before the amendments took effect on 19 February 2007. The amendments apply to all actions except those specified in the exclusion list, which includes sections such as 172, 173, and others up to 285. The Minister may determine in writing that these amendments apply to such actions, subject to specified modifications to Part 7 and Division 3 of Part 8, to ensure that statutory timeframes are not automatically breached due to differences between the pre- and post-amendment processes. This determination ensures that the new legislative framework is applied to relevant actions, providing greater certainty in decision-making.
Key Provisions
The key operative sections of the Determination under the Environment and Heritage Legislation Amendment Act (No. 1) 2006 (EHLA Act) are found in Item 4 of Division 1 of Part 2 of Schedule 2. This item allows the Minister for the Environment and Water Resources to decide, in writing, whether certain amendments made by the EHLA Act to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) should apply to specific actions. The determination is applicable to actions referred to the Minister under Division 1 of Part 7 of the EPBC Act before the amendments took effect on 19 February 2007, provided that no decision under section 87 of the EPBC Act had been made on the assessment approach for these actions prior to the amendments. This provision ensures that the Minister can apply the new legislative framework to ongoing actions that would otherwise be governed by the old assessment processes.
The obligations and requirements imposed by the Determination primarily concern the Minister’s discretion in applying the amended EPBC Act provisions to specific actions. The Minister must ensure that the application of these provisions does not result in automatic breaches of statutory timeframes that could arise due to differences between the old and new processes. To this end, the Determination also modifies Division 3 of Part 8 of the EPBC Act. Additionally, the Determination mandates that persons proposing to take actions subject to the decision, along with designated proponents where applicable, are notified of the Minister’s intention to make the Determination and are given the opportunity to provide comments. Furthermore, appropriate Ministers in states and territories where the actions are proposed to take place are also notified of the Minister’s proposal.
In terms of consequences for non-compliance, the Determination itself does not outline specific offences or penalties. However, any breaches of the EPBC Act, as amended by the EHLA Act and applied through this Determination, could result in civil or criminal penalties as specified in the EPBC Act. These penalties may include substantial fines for corporations and imprisonment for individuals, depending on the nature and severity of the breach. The EPBC Act provides for maximum penalties, such as fines of up to $666,000 for corporations and up to $133,200 for individuals, as well as potential imprisonment terms for serious offences. The specific penalties would be determined by the courts based on the circumstances of each case.