EPBC Act Part 7-9 decisions published, 05/09/2022 to 11/09/2022

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted by the Australian Parliament to address the need for a comprehensive framework to protect and manage the nation's environment, particularly focusing on matters of national environmental significance. This Act establishes a national system for the protection of the environment, aiming to conserve biodiversity and manage and protect places of national environmental significance. The EPBC Act plays a crucial role in ensuring that development and other activities are balanced with the need to protect the environment, by providing a legal framework for making decisions on projects that may impact on the environment, including through the requirement for approvals and assessments. The Department of Climate Change, Energy, the Environment and Water is responsible for the administration of the EPBC Act, including the publication of decisions regarding referrals for approval under Chapter 4 of the Act. Although the department has implemented systems and quality assurance procedures to minimise the risk of missed notifications, it acknowledges that occasional errors may occur. The department's policy is to notify the public of any missed notifications, even if the timeframe for such notification has lapsed, to ensure transparency and completeness of the public record. Despite the occasional missed notifications, these have not affected the processing of referrals, assessments, or the decisions made under the EPBC 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, including World Heritage properties, Ramsar wetlands, listed threatened species and communities, and listed migratory species. This Act governs activities across Australia and its territorial waters, as well as offshore areas defined under the EPBC Act. The Act applies to a wide range of entities and individuals, including Australian and foreign companies, government bodies, and individuals involved in activities that could affect the listed environmental matters. The Act can extend its application through subordinate instruments, which may specify additional details or criteria for certain types of actions. Notably, some exclusions and exemptions apply, particularly to actions that have already been assessed and approved under the Act or other relevant legislation. The Act's reach is broad, covering various industries and activities, such as tourism development, energy generation, and agricultural projects, as evidenced by the examples provided in the gazette.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is a key piece of legislation that governs the protection of the environment in Australia, including the management of threatened species, communities, and other matters of national environmental significance. The main operative sections of the Act (s.75) detail actions that require approval and those that do not. For example, Saracen Properties Pty Ltd's proposal for a tourism development in Gnarabup, Western Australia, required approval (s.75) and was subject to a review of its potential impacts on listed threatened species and communities (sections 18 & 18A) and listed migratory species (sections 20 & 20A). Conversely, the Australian Rail Track Corporation Limited's project to extend the rail corridor from Stockinbingal to Parkes in New South Wales was determined not to require approval (s.75). The assessment approach for these actions (s.87) varies, with some proposals undergoing a Preliminary Documentation assessment and others a Public Environment Report. The EPBC Act imposes several obligations and requirements on the parties or entities it governs. These include the need to provide detailed information about proposed actions and their potential environmental impacts, particularly in relation to listed threatened species and communities, migratory species, World Heritage, and National Heritage sites, as well as Commonwealth marine areas. For instance, Midwest Offshore Wind Pty Ltd's proposal for an offshore wind farm near Kalbarri, Western Australia, needed to address potential impacts on World Heritage and National Heritage areas (sections 12, 15A, 15B & 15C), listed threatened species and communities (sections 18 & 18A), and listed migratory species (sections 20 & 20A). Similarly, Garret Barry Planning Services Pty Ltd's proposed subdivision in Bermagui, New South Wales, required consideration of potential impacts on listed threatened species and communities (sections 18 & 18A). Breaching the obligations and requirements of the EPBC Act can result in various offences, penalties, or civil/criminal consequences. The Act provides for both civil and criminal penalties for non-compliance, with maximum fines and imprisonment terms depending on the severity of the breach. For example, individuals or corporations found guilty of causing harm to listed threatened species or communities may face substantial fines, with the maximum penalty for corporations being AUD 210,000 for each day of the offence (s.474). Additionally, individuals responsible for the breach may face imprisonment for up to two years (s.475). The EPBC Act also allows for the imposition of injunctions, orders for remediation, and other remedies to address environmental harm and ensure compliance with the Act.