EPBC Act Part 7-9 decisions published, 22/08/2022 to 28/08/2022

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted by the Parliament of Australia to address the need for a comprehensive legislative framework to protect the nation's environment, particularly in relation to matters of national environmental significance. This legislation provides for the assessment and approval of activities that may have a significant impact on the environment, including the protection of listed threatened species, endangered ecological communities, water resources, and sites of national heritage. The Act aims to ensure that development and resource use are balanced with environmental protection, thereby promoting sustainable practices. The policy objective is to maintain and enhance Australia's biodiversity and natural environment while facilitating economic growth and development. The EPBC Act empowers the Department of Climate Change, Energy, the Environment and Water to assess and approve or reject projects that may affect the environment, ensuring that public notifications are made as required. The Department has established quality assurance procedures to minimise the risk of missed notifications, although occasional lapses may occur. Any missed notifications are addressed by the Department to ensure transparency and public access to referral information, even if they are published beyond the prescribed timeframes. This commitment to transparency underscores the importance of environmental stewardship in the face of development pressures.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to a broad range of activities that may impact on matters of national environmental significance, including World Heritage properties, national heritage places, listed threatened species and ecological communities, listed migratory species, Commonwealth marine areas, the Great Barrier Reef Marine Park, the Commonwealth Marine Area, and the Commonwealth’s environmental water holdings. The EPBC Act applies to persons and entities, including companies, local governments, and Commonwealth entities, and covers a wide array of industries such as mining, energy, water resources, agriculture, and aquaculture. It governs the conduct and transactions that may affect the matters of national environmental significance across the Commonwealth of Australia, including its territorial waters, the air space above the land and waters, and the exclusive economic zone. Certain actions are exempt from the EPBC Act, such as activities listed in the regulations as controlled actions that do not require approval if they are undertaken in a specified manner. The Act’s reach can be extended or restricted through subordinate instruments, which provide additional detail on controlled actions and the manner in which they must be undertaken to qualify for exemption.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) contains various provisions that govern the approval and assessment of actions that may impact areas of national environmental significance. For instance, sections 15B and 15C of the EPBC Act pertain to National Heritage, while sections 18 and 18A cover listed threatened species and communities, and sections 20 and 20A address listed migratory species. The obligations imposed by the Act require that entities proposing actions that may affect these areas seek approval from the relevant authorities. For example, Marine Produce Australia Limited must obtain approval for their Ocean Barramundi Expansion Project in Western Australia, which impacts coastal waters and threatened species. Similarly, Alcoa of Australia Limited must seek approval for mining activities in Western Australia, which could affect wetlands of international importance, threatened species, and migratory species. The Act also mandates that entities such as WATER CORPORATION, which are involved in land clearing for infrastructure projects, must comply with the requirements concerning listed threatened species and communities. The EPBC Act imposes various obligations on entities to ensure that their actions do not adversely affect areas of national environmental significance. These obligations include providing detailed information about the proposed action, undertaking environmental assessments, and adhering to specific conditions if approval is granted. For instance, Marine Produce Australia Limited must submit a Public Environment Report as part of their approval process for the Ocean Barramundi Expansion Project. Similarly, Alcoa of Australia Limited must follow the Accredited Assessment Process under the Environmental Protection Act 1986 (WA) for their mining activities. Entities are also required to monitor and report on the environmental impact of their actions to ensure compliance with the Act. The Act further mandates that entities consult with relevant stakeholders, including Indigenous communities and other affected parties, to gather comprehensive information and address potential environmental concerns. The EPBC Act includes provisions for offences, penalties, and civil or criminal consequences for non-compliance with its requirements. For instance, under section 75 of the Act, certain actions are designated as controlled actions and require approval. Failure to obtain the necessary approval can result in significant penalties, including fines and imprisonment. The maximum penalties for breaches can vary depending on the severity of the offence and the impact on the environment. For example, knowingly or recklessly undertaking a controlled action without approval can result in fines of up to $666,666 and imprisonment for up to five years. Additionally, the Act allows for the imposition of civil penalties for breaches, which can be substantial and are intended to deter non-compliance. Entities found in breach of the Act may also face legal actions, including injunctions and damages, to remedy the environmental harm caused by their actions.