EPBC Act Part 7-9 decisions published, 14/11/2022 to 20/11/2022

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) was enacted by the Parliament of Australia to address the protection of the environment and the conservation of biodiversity. This legislation provides a framework for the assessment and approval of actions that may have a significant impact on matters of national environmental significance, including matters listed in the EPBC Act such as World Heritage properties, listed threatened species and ecological communities, and listed migratory species. The Act aims to ensure that the environmental impacts of development and other activities are considered and managed effectively. The Department of Climate Change, Energy, the Environment and Water is responsible for administering the EPBC Act, and the policy objective of the Act is to protect and conserve Australia’s environment, particularly its biodiversity, while allowing for sustainable development. The Act plays a critical role in ensuring that environmental considerations are integrated into decision-making processes related to development projects and other activities that may impact the environment.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to a wide range of entities and activities, particularly those that may have a significant impact on matters of national environmental significance. This includes both Commonwealth and non-Commonwealth activities, entities, and projects that are subject to assessment and approval under the EPBC Act. The Act provides a framework for the protection of the environment, including matters of national environmental significance such as listed threatened species and communities, listed migratory species, World Heritage properties, and Ramsar-listed wetlands. The EPBC Act applies across Australia, with the Commonwealth having jurisdiction over certain activities and entities, while states and territories retain jurisdiction over other matters. The Act also extends its application through subordinate instruments, such as regulations and guidelines, which provide further detail on the implementation and enforcement of the Act. However, certain activities and entities are excluded from the scope of the EPBC Act, including those that are regulated under other Commonwealth, state or territory legislation. Additionally, the Act provides for exemptions and thresholds, which may exempt certain activities or entities from the requirements of the Act. The EPBC Act also provides for the approval or disapproval of certain actions that may have a significant impact on matters of national environmental significance. This includes actions that require approval under section 75 of the Act, as well as actions that have been determined not to require approval. The Act also provides for assessment approaches and approval decisions, which are made based on the potential impact of the action on matters of national environmental significance. Additionally, the Act allows for the extension of time for the processing of referrals and assessments, as necessary. The Department of Climate Change, Energy, the Environment and Water is responsible for administering the EPBC Act and ensuring that its provisions are enforced. The Department has implemented systems and ongoing quality assurance procedures to minimise any risk of missed notifications within the required timeframes. However, the Department acknowledges that missed notifications may occasionally occur and will take steps to notify the public of any missed notifications, even if they occur after the required timeframe has lapsed.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (the Act) is the primary federal law in Australia for the protection of the environment. In the recent Gazette (C2022G01221), several decisions concerning various projects under this Act were published, detailing actions requiring approval or those that do not, as well as assessments and approvals with conditions. Section 75 of the Act outlines the actions that require approval, where the decision-maker determines that the proposed action is likely to have a significant impact on matters of national environmental significance (MNES). These MNES include listed threatened species and communities (sections 18 & 18A) and listed migratory species (sections 20 & 20A). For instance, several energy projects, such as the Queensland Pacific Metals (QPM) Energy Project (Reference 2022/09329) and the Stony Creek Wind Farm (Reference 2022/09333), were subject to this requirement due to potential impacts on listed threatened species and communities. Other projects, such as the Loganlea Station Relocation and Park 'n' Ride Expansion (Reference 2022/09348) and the F.C Pye Laboratory Demolition (Reference 2022/09322), were determined as not requiring approval under section 75, indicating that they were unlikely to have a significant impact on MNES. Section 87 of the Act specifies the assessment approach for projects that require approval, which often involves a thorough review of the potential environmental impacts, including preliminary documentation and further detailed assessments. Entities and parties involved in projects that require approval under the Act are obligated to comply with various requirements, such as submitting detailed environmental impact assessments and adhering to any conditions imposed by the decision-maker to mitigate adverse environmental effects. Additionally, they must ensure that their activities do not harm MNES and follow any additional guidelines or recommendations provided by the Department of Climate Change, Energy, the Environment and Water. Failure to comply with the provisions of the Act can result in civil and criminal consequences. For example, if an entity knowingly or recklessly conducts an action that contravenes the Act, they may face substantial penalties. The maximum penalties for corporations can be up to AUD 21 million or three times the benefit obtained from the offence, whichever is the greater, as stipulated under section 528 of the Act. Individuals responsible for corporate offences may also face penalties, including fines and imprisonment. These stringent measures underscore the importance of adhering to the Act's requirements to protect Australia's environment and biodiversity.