Intention to develop a draft bilateral agreement with the State of New South Wales under section 45 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Overview

The Commonwealth of Australia, through the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), aims to protect and manage the nation's biodiversity and natural environment. This legislation was enacted to address the need for a comprehensive framework that ensures the protection of significant environmental values and facilitates sustainable development. The EPBC Act serves as a critical tool in balancing environmental conservation with economic growth, ensuring that actions impacting the environment are properly assessed and managed. The policy objective of the Act is to provide a robust mechanism for the protection of the environment, including endangered species, ecosystems, and cultural heritage sites, while allowing for responsible development through a streamlined approval process where appropriate. The Minister for the Environment, SUSSAN LEY, has announced the intention to develop a draft bilateral agreement with the State of New South Wales under section 45 of the EPBC Act. This initiative seeks to streamline the environmental approval process by declaring certain classes of actions that do not require approval under Part 9 of the EPBC Act for specified provisions of Part 3. This approach is intended to enhance efficiency and reduce bureaucratic hurdles, allowing for more effective environmental management and coordination between the Commonwealth and the State.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) applies to all actions that may have a significant impact on matters of national environmental significance. This Act primarily governs the actions of individuals, corporations, and other entities, ensuring that any proposed actions that could affect biodiversity, world heritage properties, or other critical environmental areas are assessed and approved according to the provisions outlined in the Act. The geographic reach of the Act extends across the Commonwealth, meaning it applies nationally, and it also extends to actions that may impact territories and external matters. However, certain actions may be exempt from the Act’s approval requirements if they are specified under a bilateral agreement, such as the proposed draft agreement with the State of New South Wales. This agreement aims to streamline the approval process for certain classes of actions deemed not to have a significant impact, provided they comply with the specific criteria set out in the bilateral agreement. The Act also allows for the extension or restriction of its application through subordinate instruments, such as regulations or guidelines, which further define the scope and implementation of the Act's provisions.

Key Provisions

The main sections of the legislation involve the Minister for the Environment, Sussan Ley, notifying her intention to develop a draft bilateral agreement with New South Wales under section 45 of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (1). This draft agreement includes a declaration under section 46 of the EPBC Act, stating that certain classes of actions will not require approval under Part 9 of the EPBC Act for the purposes of specified provisions of Part 3 of the EPBC Act (2). The Act mandates that this declaration is to be made following consultation with the New South Wales government and other stakeholders, as required by the EPBC Act. The obligations imposed by this Act on the relevant parties include the Minister's duty to consult with New South Wales and other relevant stakeholders in the development of the draft bilateral agreement. The Minister must ensure that the agreement and declaration are consistent with the objectives of the EPBC Act and that they do not undermine the protection of matters of national environmental significance (3). The New South Wales government is also required to cooperate with the Minister during this process, providing necessary information and feedback to ensure the agreement meets both state and federal environmental standards. Failure to comply with the requirements of the EPBC Act can lead to significant legal consequences. The Act provides for both civil and criminal penalties for non-compliance, which can include fines and imprisonment, depending on the severity of the breach (4). The specific maximum penalties are not detailed in this notification but are outlined in the EPBC Act itself. The Minister's intention to develop the draft agreement is a formal step towards ensuring that any actions exempted from approval under Part 9 of the Act do not adversely affect the environment, aligning with the broader goals of the EPBC Act.