Intention to develop a draft bilateral agreement with the State of South Australia under section 45 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) 2023

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) was enacted to address the protection and conservation of Australia's environment, biodiversity, and cultural heritage. The Act provides a framework for the protection of the environment, particularly in relation to the impact of actions on the environment, including the need for assessments and approvals of certain activities. In 2023, Tanya Plibersek, Minister for the Environment and Water, notified the intention to develop a draft bilateral agreement with the State of South Australia under section 45 of the EPBC Act. This draft agreement aims to revoke and replace the existing bilateral agreement from 25 September 2014, potentially updating the classes of actions that are currently declared in Schedule 1 and making other miscellaneous updates. The policy objective is to refine and enhance the collaboration between the Commonwealth and South Australia in the management and conservation of the environment.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) provides the legal framework within which the Commonwealth and states can enter into bilateral agreements to manage environmental protection and biodiversity conservation more effectively. In this instance, the Minister for the Environment and Water, Tanya Plibersek, has indicated an intention to develop a draft bilateral agreement with the State of South Australia to replace the existing agreement from 2014. This new agreement aims to update the classes of actions that require assessment under Part 8 of the EPBC Act and incorporate other miscellaneous updates. The bilateral agreement extends to the geographic jurisdiction of South Australia and is intended to streamline the assessment process for certain actions, thereby improving efficiency while maintaining stringent environmental protection standards. Any exclusions, exemptions, or thresholds within the bilateral agreement will be detailed in the draft itself, subject to review and public consultation as per the EPBC Act’s requirements. The scope of the bilateral agreement can be further defined or extended through subordinate instruments, ensuring it aligns with current environmental and conservation needs.

Key Provisions

The primary sections of note in the Gazette C2023G00417 are those that announce the Minister's intention to develop a draft bilateral agreement (subsection 45(3) of the EPBC Act). This intention to revise the existing bilateral agreement, initially established on 25 September 2014, sets the stage for a comprehensive review and potential amendments. The draft agreement may alter the classes of actions outlined in Schedule 1 of the current agreement and incorporate other updates as deemed necessary (subsection 47(1) of the EPBC Act). These updates are intended to refine the regulatory framework governing environmental protection and biodiversity conservation. Under this Act, the Minister for the Environment and Water, Tanya Plibersek, has specific obligations to facilitate the development of the draft bilateral agreement. This includes ensuring that the draft reflects the current environmental protection standards and biodiversity conservation needs of South Australia. The Minister must also consider any stakeholder inputs and consultations to make the draft agreement as comprehensive and effective as possible. Furthermore, the Minister must adhere to the procedural requirements stipulated in the EPBC Act when developing the draft agreement. The Gazette also outlines potential consequences for non-compliance with the provisions of the bilateral agreement once finalised. While the Gazette does not specify particular offences or penalties within its text, breaches of the EPBC Act generally can lead to both civil and criminal penalties. Civil penalties may include fines up to a significant amount as prescribed by the Act. Criminal penalties may include imprisonment for individuals, reflecting the seriousness of environmental and biodiversity offences. Corporations may also face substantial fines. These penalties underscore the importance of adhering to the regulations set forth in the bilateral agreement. The Gazette serves as a formal announcement and provides the foundational framework for the Minister's actions. It highlights the procedural steps and the intent behind the proposed changes to the bilateral agreement. By following the specified sections of the EPBC Act, the Minister ensures that the draft agreement will be developed in a transparent and accountable manner, aiming to better protect Australia's environment and biodiversity. The outlined obligations and potential consequences underscore the importance of compliance and the critical role of the bilateral agreement in achieving these environmental goals.