Intention to develop a draft bilateral agreement with South Australia

Overview

The Commonwealth of Australia, under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), has announced the intention to develop a draft bilateral agreement with the State of South Australia. This initiative, announced by Greg Hunt, the Minister for the Environment, aims to streamline the environmental assessment process for certain actions under the EPBC Act. The Act, enacted in 1999, was designed to protect and manage the environment, with a particular focus on biodiversity and ecological sustainability. The proposed bilateral agreement seeks to address inefficiencies in the existing regulatory framework by allowing certain classes of actions to bypass the detailed assessment process outlined in Part 8 of the EPBC Act, thereby promoting a more collaborative approach to environmental management between the Commonwealth and the State.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) applies to actions that may have a significant impact on matters of national environmental significance, as defined by the Act. The Act governs both Commonwealth and non-Commonwealth actions, including activities carried out by individuals, corporations, and public authorities. It has a broad jurisdictional reach, applying nationally across Australia, and is intended to protect and manage environmental values that transcend state and territory boundaries. The Act allows for the development of bilateral agreements with states and territories, as evidenced by the intention to develop a draft bilateral agreement with the State of South Australia. Such agreements can specify classes of actions that do not need individual assessment under Part 8 of the EPBC Act, thereby streamlining the approval process for certain activities deemed to have minimal environmental impact. The Act provides for certain exclusions and exemptions, which can be further defined through subordinate instruments such as regulations or guidelines issued by the relevant authorities.

Key Provisions

The primary operative sections of the notice include subsection 45(3) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act), which provides the legislative basis for the Minister's intention to develop a draft bilateral agreement with South Australia. The agreement aims to declare certain classes of actions that will not require assessment under Part 8 of the EPBC Act, thereby streamlining environmental approval processes for these actions within the state. This approach is designed to foster a cooperative approach to environmental protection between the Commonwealth and the State, while ensuring that significant environmental impacts are still properly assessed. The obligations imposed by this notice are primarily on the Minister for the Environment and the State of South Australia. The Minister must develop the draft bilateral agreement in consultation with relevant stakeholders, including the South Australian government, environmental groups, and other interested parties. The agreement must be consistent with the objectives of the EPBC Act and must ensure that the protection of the environment is not compromised. Once the draft agreement is developed, it will be subject to a review and consultation process before being finalised. The State of South Australia, in turn, will need to engage with the Minister to ensure that the agreement reflects the needs and priorities of the state, while also meeting the requirements of the EPBC Act. Breaches of the obligations under the EPBC Act can result in both civil and criminal consequences. Under the EPBC Act, individuals or entities that fail to comply with an approval, direction or requirement can be subject to penalties. The maximum civil penalty for an individual is $666,000 or six times the benefit obtained from the contravention, whichever is the greater. For a body corporate, the maximum penalty is $3.3 million or three times the benefit obtained from the contravention. Additionally, serious breaches can result in criminal charges, with maximum penalties including fines of up to $1.1 million for individuals and $5.5 million for bodies corporate, as well as potential imprisonment for directors and officers of the body corporate. These penalties underscore the importance of compliance with the EPBC Act and the obligations set out in the draft bilateral agreement.