Intention to develop a draft bilateral agreement with the State of Western Australia 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 address the problem of protecting and conserving Australia's environmental heritage, including its biodiversity and significant natural places. The Act was introduced by the Commonwealth Parliament with the policy objective of promoting the sustainable use of natural resources and managing the impact of human activities on the environment. In 2020, the Minister for the Environment, Sussan Ley, announced an intention to develop a draft bilateral agreement with the State of Western Australia under section 45 of the EPBC Act. This agreement aims to streamline the approval process for certain classes of actions that do not require approval under Part 9 of the EPBC Act for specified provisions of Part 3 of the Act, thus facilitating more efficient environmental management within the state.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) applies to a broad range of persons and entities, encompassing federal and state governments, corporations, and individuals, with the primary objective of protecting and managing the environment, particularly in relation to biodiversity conservation. The Act's jurisdiction extends across the Commonwealth of Australia, but it allows for the development of bilateral agreements with states to tailor the application of specific provisions. In this instance, the Minister for the Environment intends to develop a draft bilateral agreement with the State of Western Australia, which includes a declaration that certain classes of actions do not require approval under Part 9 of the EPBC Act for specified provisions of Part 3. This arrangement facilitates streamlined environmental assessment processes while ensuring compliance with overarching biodiversity conservation objectives. The Act does not detail explicit exclusions or thresholds within this particular notification, but it is subject to further refinement and specification through subordinate instruments and the eventual bilateral agreement.

Key Provisions

The key operative sections of the notice under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) include section 45(3), which mandates the Minister for the Environment to give notice of an intention to develop a draft bilateral agreement with a state, and section 46, which allows for the declaration that certain classes of actions do not require approval under Part 9 of the EPBC Act. This particular notice, issued by Minister SUSSAN LEY, indicates an intention to develop such an agreement with the State of Western Australia, encompassing a declaration under section 46. This declaration specifies that particular classes of actions will not require approval under Part 9 of the EPBC Act for the purposes of certain provisions in Part 3 of the EPBC Act. The Act imposes specific obligations and requirements on the Minister and relevant parties during the development of the draft bilateral agreement. The Minister must ensure that the agreement aligns with the objectives of the EPBC Act, including the protection and conservation of biodiversity and the environment. Additionally, the agreement must be developed in consultation with relevant stakeholders, including the State of Western Australia, to ensure it meets the needs and considerations of all parties involved. The Minister is also required to provide public notification of the intention to develop the draft agreement, allowing for public input and feedback. There are potential consequences for breaches of the obligations and requirements outlined in the EPBC Act. While the notice itself does not specify penalties, the EPBC Act provides for a range of civil and criminal penalties for breaches. These can include fines, imprisonment, or both, depending on the severity of the breach. For example, under section 528 of the EPBC Act, a person who contravenes a provision of the Act can be fined up to $666,000 or imprisoned for up to five years, or both. Additionally, corporations can face even higher fines, up to $3.33 million. These penalties reflect the importance of adhering to the provisions of the Act to protect and conserve Australia's environment and biodiversity.