Intention to develop a draft bilateral agreement with the Australian Capital Territory

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) was enacted to provide for the protection of the environment, particularly matters of national environmental significance, by regulating actions that may impact upon them. The Act was introduced to address the need for a comprehensive framework to manage and mitigate the environmental impacts of actions taken across Australia, including those with potential transboundary or national significance. This was necessary to ensure that environmental protection was integrated into decision-making processes at all levels of government and in the private sector. The intention to develop a draft bilateral agreement with the Australian Capital Territory, as announced by the Minister for the Environment, Greg Hunt, is aimed at streamlining the assessment process for certain classes of actions, thereby facilitating more efficient environmental management while maintaining robust protections. The policy objective is to foster cooperative environmental governance between the Commonwealth and the Australian Capital Territory, enhancing the effectiveness and responsiveness of environmental regulations.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) applies to a wide range of activities and entities, encompassing any actions that may have a significant impact on matters of national environmental significance, as defined under the Act. This includes the protection of World Heritage properties, national parks, and wetlands of international significance, among others. The Act applies to individuals, corporations, and any entities carrying out, controlling, or authorising actions that could affect these protected matters. The geographic scope of the Act extends nationally, with the Commonwealth holding overarching responsibility for the protection and management of environmental aspects that transcend state and territory boundaries. However, in relation to the intention to develop a draft bilateral agreement with the Australian Capital Territory, the Act specifically addresses the coordination between the Commonwealth and the ACT in managing environmental impacts within the ACT's jurisdiction. While the Act generally applies broadly, the bilateral agreement may exclude certain classes of actions from the requirement of assessment under Part 8 of the EPBC Act, subject to the terms negotiated between the Commonwealth and the ACT. The Act’s reach may be further refined through subordinate legislation, which can provide additional detail and specificity regarding the application of the Act, including the classes of actions that may be exempted from assessment under the bilateral agreement.

Key Provisions

The main operative sections of the Gazette C2013G01955 inform that the Minister for the Environment, Greg Hunt, intends to develop a draft bilateral agreement with the Australian Capital Territory (ACT) under section 45 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). Pursuant to subsection 45(3) of the EPBC Act, the Minister's intention is to create an agreement that could potentially exempt certain classes of actions from the need for assessment under Part 8 of the EPBC Act. This means that the bilateral agreement could streamline the environmental assessment process for activities that meet the criteria specified within the agreement. The obligations and requirements imposed by the Act on the parties involved primarily revolve around the collaborative development and negotiation of the bilateral agreement. Both the Commonwealth and the ACT are required to engage in good faith negotiations to reach a consensus on the classes of actions that could be exempted from assessment under Part 8 of the EPBC Act. This collaborative process ensures that any exemptions granted are balanced with the need to protect the environment and biodiversity. Additionally, the Minister must follow the procedural requirements set out in the EPBC Act, including providing the requisite public notices and opportunities for public consultation where necessary. Failure to comply with the terms of the EPBC Act or the bilateral agreement could result in legal consequences. The EPBC Act itself does not explicitly detail offences or penalties for breaches of the bilateral agreement; however, breaches of the overarching Act can lead to civil and criminal penalties. For instance, if a party contravenes the Act, they may face civil penalties of up to $1.1 million for a corporation and $220,000 for an individual, as well as potential criminal penalties which can include fines and imprisonment depending on the severity and nature of the breach. The specific penalties for breaches of the bilateral agreement would depend on how those terms are articulated within the agreement itself and any related state or federal legislation.