EPBC Act Part 7-9 decisions published, 15/01/2024 to 21/01/2024

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 conserve the environment, particularly in relation to actions that may have a significant impact on matters of national environmental significance. The EPBC Act establishes a national system for the protection of the environment, including endangered species, ecosystems, and cultural heritage sites, and aims to ensure that environmental considerations are integrated into decision-making processes. The Act provides for the assessment and approval of actions that may impact the environment, and sets out the roles and responsibilities of different levels of government and stakeholders in environmental protection and management. The policy objective of the EPBC Act is to promote the conservation of biodiversity, the sustainable use of natural resources, and the protection of the environment from harmful human activities. The EPBC Act is administered by the Department of Climate Change, Energy, the Environment and Water, which is responsible for ensuring that the Act is implemented effectively and that environmental considerations are integrated into decision-making processes. The Department has implemented systems and ongoing quality assurance procedures to minimise the risk of missed notifications or delays in processing referrals for approval under the Act. While the Department regrets any inconvenience caused by missed notifications, it is important to note that such delays do not affect the subsequent processing of referrals or assessments, or the decisions made under the Act. The Act provides for a range of mechanisms to address environmental concerns, including the ability to assess and approve actions that may have a significant impact on the environment, and to impose conditions on approvals to mitigate any adverse environmental impacts.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to a broad range of entities and activities across Australia, including Commonwealth and non-Commonwealth land, waters within the territorial sea, and Australian external territories. The Act pertains to matters of national environmental significance, such as listed threatened species and communities, and requires approval for certain actions that may impact these significant environmental aspects. The Act applies to individuals, corporations, and government bodies that intend to undertake actions that may affect matters of national environmental significance. The EPBC Act extends its reach to a variety of industries, including residential development, energy generation, water management, and transport. The Act’s provisions are enforced through subordinate instruments, which may extend or restrict the application of the primary legislation to ensure comprehensive environmental protection. While the Act applies broadly, there are certain exclusions and exemptions, such as actions already regulated by state or territory laws that sufficiently protect the matters of national environmental significance. The Act's provisions are designed to integrate with and complement existing environmental frameworks, ensuring that critical environmental concerns are adequately managed and preserved.

Key Provisions

The main operative sections of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) in the recent Gazette notification include sections 75, 78C, 130, 143, and 87. Section 75 (s.75) pertains to actions requiring approval, such as the residential development in Mariginiup, Western Australia. Under this section, the Department of Climate Change, Energy, the Environment and Water must assess whether a proposed action is likely to have a significant impact on a matter of national environmental significance, such as listed threatened species and communities (s.18 & 18A). Section 78C (s.78C) relates to the reconsideration of a decision made under section 75(1), as seen with the Townsville City Project in Victoria. Section 130 (s.130) allows for an extension of time for the completion of certain activities, such as the case of the Australian Rail Track Corporation Limited's project in New South Wales. Section 143 (s.143) concerns the variation of conditions of approval, illustrated by the developments in the Surat Basin and the Burnett River in Queensland. Lastly, section 87 (s.87) sets out the assessment approach for actions requiring approval, as noted in the preliminary documentation for the Mariginiup residential development. The Act imposes several obligations and requirements on the parties or entities it governs. These include providing preliminary documentation for actions requiring approval, such as the Mariginiup residential development (s.87). Parties must also submit their projects for assessment by the Department to determine if the action will have a significant environmental impact (s.75). Additionally, any entity seeking a variation of conditions of approval, such as QGC PTY LTD and Burnett Water Pty Ltd, must follow the prescribed processes outlined in section 143 (s.143). The Act also requires the Department to implement systems and quality assurance procedures to minimise the risk of missed notifications and ensure transparency in the referral process (s.130(4)). Failure to comply with the requirements of the EPBC Act can result in various civil and criminal consequences. For instance, if a party misses a notification deadline, the Department will endeavour to notify the public of the missed notification, even if the timeframe has lapsed, to maintain transparency and accountability (s.130(4)). However, while late notifications do not affect subsequent processing or decisions, they may cause inconvenience to the public. The Act does not specify penalties for missed notifications, but it is clear that compliance with notification requirements is essential to avoid any potential repercussions. Furthermore, any actions that significantly harm matters of national environmental significance without proper approval can result in legal action, fines, or other penalties as determined by the relevant authorities.