EPBC Act Part 7-9 decisions published, 28/03/2022 to 3/04/2022

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to address the need for a comprehensive framework for the protection of the environment, particularly focusing on matters of national environmental significance. The Act was designed to provide a unified approach to environmental protection and biodiversity conservation across Australia, thereby addressing the problem of fragmented environmental legislation and the need for better coordination of environmental management at both federal and state levels. The EPBC Act is administered by the Australian Parliament and its overarching policy objective is to protect and manage the environment, particularly by preventing significant impacts on matters of national environmental significance. This includes actions that could affect World Heritage properties, listed threatened species and ecological communities, listed migratory species, Commonwealth marine areas, and wetlands of international importance, among others. Recent updates to the EPBC Act involve the publication of decisions regarding various projects that require approval under the Act. For instance, mining projects such as the Eramurra Industrial Salt Project by Leichhardt Industrials Pty Ltd and the Isaac Downs coal mine project by STANMORE IP SOUTH PTY LTD have been subject to assessments and decisions. Similarly, infrastructure developments such as the Great Eastern Highway Upgrade Project by MAIN ROADS and the Leeuwin Offshore Wind Farm by Leeuwin Offshore Wind Pty Ltd are also under scrutiny. The Department of Agriculture, Water and the Environment ensures that all relevant notifications are made public, even if they are issued late, to maintain transparency and public trust in the environmental approval process.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to a broad range of entities, including corporations, individuals, and government bodies, engaged in activities that may impact matters of national environmental significance. The Act primarily governs actions that require approval, such as those that may affect listed threatened species, communities, and migratory species, or impact wetlands of international importance, Commonwealth marine areas, or the World Heritage properties. The geographic reach of the Act is national, with jurisdiction over actions across Australia, including both onshore and offshore areas within Commonwealth waters. There are certain exclusions and exemptions stipulated within the Act, such as activities that are already regulated under other Commonwealth or state legislation, or those that have been assessed and approved under a state or territory environmental protection act. The Act also allows for the extension or restriction of its application through subordinate instruments, enabling the federal government to adapt the regulatory framework to address emerging environmental concerns or to refine the implementation of the Act.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) includes several key sections that outline the requirements and obligations for proposed actions that may have significant environmental impacts. Sections 75 and 87 of the EPBC Act establish the procedures for determining whether an action requires approval under the Act, and if so, what type of assessment process should be used. For instance, Section 75(1) requires that the Minister must determine whether a proposed action is a ‘controlled action’ that needs approval, and Section 87(1) sets out the assessment process that should be used. When the Minister decides that an action requires approval, they must determine whether the action will have a significant impact on a matter of environmental concern, such as listed threatened species and communities (sections 18 & 18A), listed migratory species (sections 20 & 20A), wetlands of international importance (sections 16 & 17B), or Commonwealth marine areas (sections 23 & 24A). The EPBC Act imposes obligations on proponents of actions that may have significant environmental impacts. Proponents must provide relevant information and documentation to the Department of Agriculture, Water and the Environment, and cooperate with the assessment process. For example, proponents must submit a Referral under Section 7.3 of the EPBC Act, which includes a description of the proposed action and its potential environmental impacts, and any relevant environmental management plans or mitigation measures. Proponents must also comply with any conditions of approval that are imposed by the Minister under Section 143 of the EPBC Act. These conditions may include requirements to monitor and report on the environmental impacts of the action, or to implement specific mitigation measures to avoid or minimise those impacts. Failure to comply with the EPBC Act or its regulations may result in civil or criminal penalties. Under Section 532 of the EPBC Act, a person who contravenes a provision of the Act or its regulations is liable to a fine of up to $666,666 for a corporation, or $133,333 for an individual, or both. In addition, under Section 533 of the EPBC Act, a person who intentionally, recklessly or negligently causes or authorises the causing of a breach of the Act or its regulations is liable to a fine of up to $2,222,222 for a corporation, or $444,444 for an individual, or both. In some cases, breaches of the EPBC Act may also result in criminal charges, such as imprisonment or both a fine and imprisonment. The specific penalties for a particular breach will depend on the circumstances of the case, including the severity and extent of the breach, and whether it was intentional or negligent. It is important to note that the EPBC Act is a complex piece of legislation, and the obligations and penalties outlined above are not exhaustive. Lawyers and their clients should seek professional advice to ensure that they fully understand their obligations under the EPBC Act, and to ensure that they are taking all necessary steps to comply with the Act and avoid potential penalties. It is also important to stay up to date with any changes or updates to the EPBC Act or its regulations, as these may affect the obligations and penalties applicable to a particular action or project.