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

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) was enacted to provide for the protection of the environment, particularly matters of national environmental significance, and to promote the sustainable use of natural resources. This Act was introduced to address the gap in comprehensive environmental protection laws, ensuring that federal environmental obligations are met while allowing for streamlined processes in certain areas through bilateral agreements with states. The Minister for the Environment, under section 45 of the EPBC Act, has expressed the intention to develop a draft bilateral agreement with the State of Tasmania. This agreement aims to declare that certain classes of actions do not require approval under Part 9 of the EPBC Act for the purposes of specified provisions in Part 3 of the Act, thereby facilitating more efficient environmental management while maintaining essential protections.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) applies to any actions that may impact on matters of national environmental significance, as identified in the Act. This includes individuals, corporations, and other entities that may undertake activities or actions that could affect these matters. The Act has a broad jurisdictional reach across the Commonwealth, applying to actions proposed to occur within Australia and its territories, as well as actions by Australian citizens and entities overseas that may impact on matters of national environmental significance within Australia. The Act provides for exclusions and exemptions through the development of bilateral agreements, such as the proposed agreement with Tasmania, which may declare certain classes of actions that do not require approval under Part 9 of the EPBC Act, provided they meet the criteria set out in Part 3 of the Act. The scope and application of the Act may be extended or restricted through subordinate instruments, such as regulations and guidelines, which provide further detail on the operation of the Act.

Key Provisions

The main operative sections of the notice (C2020G00640) pertain to the Minister for the Environment’s intention to develop a draft bilateral agreement with Tasmania under section 45 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). Specifically, this notice concerns the intention to create a declaration under section 46 of the EPBC Act, which identifies certain classes of actions that do not require approval under Part 9 of the EPBC Act for specified provisions in Part 3 of the EPBC Act. This declaration aims to streamline the approval process for particular actions by reducing the need for individual assessments, thereby facilitating more efficient environmental management and conservation efforts. The Act imposes specific obligations on the Minister for the Environment and the relevant authorities in Tasmania. The Minister is required to engage in the development of the bilateral agreement, ensuring that the classes of actions identified do not adversely impact the environment. Tasmania, as the state involved, must collaborate with the Minister to validate that the actions outlined in the agreement are consistent with the objectives of the EPBC Act. Both parties must ensure that the declaration does not undermine the protection of threatened species and ecological communities and that it aligns with national environmental standards and guidelines. Breaches of the obligations set forth in the EPBC Act can lead to various civil and criminal consequences. For example, if the declaration results in actions that significantly harm the environment or contravene the provisions of the EPBC Act, the Minister and relevant authorities could face legal actions. The Act allows for fines and penalties, with maximum penalties for corporations reaching up to $6.6 million or three times the benefit obtained from the contravention, whichever is greater. Additionally, individuals involved in the approval process or those who knowingly participate in actions that breach the Act could face imprisonment terms, reflecting the seriousness with which the legislation treats environmental protection.