Intention to develop a draft bilateral agreement with Northern Territory under section 45 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) is the principal legislation through which the Australian Government seeks to protect and manage the environment, particularly in relation to actions that may impact areas of national environmental significance. In 2020, Sussan Ley, the Minister for the Environment, announced the intention to develop a draft bilateral agreement with the Northern Territory under section 45 of the EPBC Act. This initiative aimed to revoke and replace the existing bilateral agreement of 11 December 2014, potentially updating the classes of actions that are subject to environmental assessments and incorporating other miscellaneous updates. The underlying policy objective is to streamline environmental assessment processes and enhance cooperation between the Commonwealth and the Northern Territory, ensuring that actions which do not significantly impact the environment can be exempt from certain assessments, as outlined in subsection 47(1) of the EPBC Act.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) provides the legislative framework within which the Minister for the Environment has the authority to develop a draft bilateral agreement with the Northern Territory. This legislative intention, articulated by Minister Sussan Ley, concerns the revision and replacement of the existing bilateral agreement dated 11 December 2014. The draft bilateral agreement aims to update the classes of actions outlined in Schedule 1 of the current agreement and incorporate other miscellaneous updates. The geographic scope of this legislation is national, involving the Commonwealth of Australia and the Northern Territory. The Act applies to the classes of actions specified under the bilateral agreement, which may be subject to assessments under Part 8 of the EPBC Act, although a bilateral agreement can declare exemptions for certain actions. The EPBC Act’s subsidiary instruments may further extend or restrict the application of the bilateral agreement, ensuring alignment with national environmental standards and objectives.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) provides a framework for the protection of the environment and biodiversity, including the development of bilateral agreements between the Commonwealth and the states or territories. Under section 45(3) of the EPBC Act, the Minister for the Environment has given notice of their intention to develop a draft bilateral agreement with the Northern Territory. This draft agreement aims to replace the existing bilateral agreement of 11 December 2014 and may include updates to the classes of actions that are declared in Schedule 1 of the current agreement. These updates could involve changes to the types of actions that need not be assessed under Part 8 of the EPBC Act. The obligations imposed by the Act on the parties involved include the duty of the Minister to develop a draft bilateral agreement that aligns with the objectives of the EPBC Act. The Minister must ensure that the draft agreement reflects the current environmental and biodiversity protection needs and that it provides for effective collaboration between the Commonwealth and the Northern Territory. Furthermore, the Minister must undertake a process that allows for public consultation and input to ensure that the draft agreement is comprehensive and addresses the concerns of all stakeholders. Breach of the provisions of the EPBC Act or the bilateral agreement may result in civil or criminal consequences. Under the EPBC Act, offences can include carrying out a 'controlled action' without the necessary approval or failing to comply with a direction issued by the Minister. The penalties for these offences can vary widely depending on the nature and severity of the breach. For example, individuals found guilty of offences under the EPBC Act may face fines of up to $1.1 million, while corporations may face fines of up to $5.5 million. Additionally, in cases of serious environmental harm, the courts may impose additional penalties, including imprisonment for individuals. It is crucial for all parties to adhere to the requirements of the Act and the bilateral agreement to avoid these consequences.