Intention to develop a draft bilateral agreement with Western Australia

Overview

The Commonwealth of Australia has issued a notice 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). The Minister for the Environment, Greg Hunt, has declared this intention in accordance with the EPBC Act's subsection 45(3). The proposed bilateral agreement aims to streamline environmental assessments by potentially exempting certain classes of actions from the assessment requirements under Part 8 of the EPBC Act. This initiative by the Australian government and the state of Western Australia intends to foster a more efficient and collaborative approach to environmental protection and biodiversity conservation, thereby addressing potential inefficiencies and duplications in the existing legislative framework.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) applies to a wide range of activities, entities, and individuals whose actions may impact on matters of national environmental significance, including protected matters such as World Heritage properties, wetlands of international significance, listed threatened species and ecological communities, and the marine environment. The Act is applicable across the Commonwealth of Australia and aims to provide a coordinated national approach to the protection of the environment, particularly focusing on actions that may have significant environmental impacts. The Act can extend its application through subordinate instruments, such as regulations and bilateral agreements, to refine or expand its scope in specific contexts. In this particular instance, the Minister for the Environment has expressed the intention to develop a draft bilateral agreement with the State of Western Australia, which may result in certain classes of actions being exempt from the need for assessment under Part 8 of the EPBC Act. This agreement, once finalised, would provide a tailored approach to environmental protection in Western Australia while maintaining alignment with the overarching objectives of the Act.

Key Provisions

The main operative sections of the Gazette (C2013G01963) relate to the Minister for the Environment’s 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) (EPBC Act). Section 45 of the EPBC Act provides the legislative framework for the creation of bilateral agreements between the Commonwealth and the states or territories. In this case, subsection 45(3) specifically empowers the Minister to notify the intention to develop such a draft agreement, which could subsequently declare certain classes of actions as not requiring assessment under Part 8 of the EPBC Act. This means that specific activities or projects, if covered by the agreement, would not need to undergo the rigorous environmental impact assessment process prescribed by the Act. The obligations and requirements imposed by this Act on the parties involved are primarily centred around the process of drafting and finalising the bilateral agreement. The Minister for the Environment must engage in meaningful consultation with the relevant state authorities, in this case, Western Australia, to develop the agreement. This includes considering the environmental impacts of the proposed classes of actions and ensuring that any exemptions from assessment are justified and do not compromise the protection of the environment. The Act also mandates that the Minister must provide public notification of the intention to develop the draft agreement, allowing for public scrutiny and feedback. In terms of consequences for non-compliance or breaches, the Gazette itself does not specify any offences, penalties, or civil/criminal consequences. However, the broader EPBC Act outlines various enforcement mechanisms. Breaches of the Act can lead to civil penalties, including fines for individuals or corporations, as well as criminal penalties where intentional or reckless disregard for the Act's provisions is involved. For instance, under section 503 of the EPBC Act, a person can be liable to a civil penalty of up to $666,000 for each offence if found guilty of contravening the Act. Criminal penalties, as specified in section 504, can include fines of up to $666,000 or imprisonment for up to five years, or both, for serious or repeated breaches. These provisions underscore the importance of adhering to the legislative requirements and the potential ramifications of failing to do so.