Intention to Develop a Draft Bilateral Agreement with the Australian Capital Territory Under Section 45 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Overview

The Commonwealth of Australia, under the authority of the Environment Protection and Biodiversity Conservation Act 1999, has announced its intention to develop a draft bilateral agreement with the Australian Capital Territory. This initiative, led by Minister for the Environment, Sussan Ley, aims to streamline and decentralise the management of environmental approvals and assessments, addressing inefficiencies and delays in the current system. The bilateral agreement includes a declaration that certain classes of actions will not require federal approval under the Act, thereby transferring some regulatory responsibilities to the Territory. This move is intended to enhance collaboration and efficiency in environmental protection efforts, aligning federal and territory objectives while maintaining robust environmental safeguards.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) is the Commonwealth legislation governing environmental protection and biodiversity conservation in Australia. The Act applies to actions that may have a significant impact on matters of national environmental significance, including actions by individuals, corporations, and government entities. The Act's jurisdictional reach extends across the Commonwealth of Australia, including territories, but it does not apply to state-controlled areas unless a bilateral agreement is in place. In the case of the Australian Capital Territory, the Minister for the Environment intends to develop a draft bilateral agreement to declare that certain classes of actions do not require approval under Part 9 of the EPBC Act for specified provisions of Part 3 of the Act. This agreement aims to streamline the approval process for actions that have minimal impact on protected matters, thereby facilitating development and conservation efforts in the territory. The Act may be further extended or restricted through subordinate instruments, such as regulations or guidelines, to provide additional clarity or detail on its application.

Key Provisions

The main operative sections of this Gazette, C2020G00642, pertain to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). According to subsection 45(3) of the EPBC Act, the Minister for the Environment, Sussan Ley, has declared an intention to develop a draft bilateral agreement with the Australian Capital Territory (section 45). This agreement includes a declaration under section 46 of the EPBC Act that certain classes of actions will not require approval under Part 9 of the EPBC Act for specified provisions of Part 3 of the EPBC Act. The primary focus here is on facilitating streamlined processes for actions that are deemed to have minimal impact on the environment, thereby allowing for more efficient management and regulation of environmental issues. The obligations and requirements imposed by this Gazette on the involved parties are primarily centred around the development of the draft bilateral agreement. The Minister for the Environment, as the initiator of this process, is required to engage with the Australian Capital Territory to ensure that the proposed agreement aligns with the EPBC Act's objectives and does not undermine its environmental protections. The Australian Capital Territory, in turn, must collaborate with the Minister to identify the classes of actions that could benefit from streamlined approval processes. Both parties are expected to adhere to the legislative framework and ensure that any actions exempted from approval under Part 9 of the EPBC Act still meet the necessary environmental standards and considerations as stipulated in Part 3 of the EPBC Act. In terms of potential offences, penalties, or consequences for breach, the Gazette itself does not explicitly outline these details. However, any failure to comply with the EPBC Act or the terms of the bilateral agreement could result in legal actions. Such actions might include enforcement measures, fines, or other penalties as prescribed by the EPBC Act. For instance, under section 528 of the EPBC Act, a person who contravenes an environmental protection measure may be liable for civil penalties, including fines of up to $666,000 for corporations and $66,600 for individuals, or criminal penalties, which can result in imprisonment. The specific penalties would depend on the nature and severity of the breach, as well as the relevant provisions of the EPBC Act.