Intention to develop a draft bilateral agreement with 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) (EPBC Act) was enacted to address the need for a comprehensive framework to protect and manage Australia's biodiversity and environment, including the assessment of actions that may significantly impact the environment. The Act provides mechanisms for cooperation between the Commonwealth and the states through bilateral agreements. In this context, the Minister for the Environment, Sussan Ley, has notified the intention to develop a draft bilateral agreement with Western Australia, under section 45 of the EPBC Act, to replace the existing agreement from 2014. This draft aims to revise the classes of actions that require assessment under the EPBC Act and incorporate other necessary updates. The policy objective is to streamline environmental assessments and enhance collaborative efforts in environmental protection between the Commonwealth and the State. The draft bilateral agreement, to be developed by the Commonwealth on behalf of the federal government, is intended to provide a more effective and current framework for environmental assessments and protections. This initiative reflects a commitment to improving the efficiency of the environmental approval process and ensuring that the protection of the environment is both comprehensive and adaptive to contemporary needs and challenges. The enacting body is the Commonwealth Parliament, which has the authority to engage in such bilateral arrangements under the EPBC Act to foster better environmental governance across jurisdictions.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) applies to the Commonwealth, the states, territories, and all persons and entities within Australia. The Act is designed to protect and manage Australia's biodiversity and heritage, as well as to facilitate environmental protection and sustainable development. In the context of the draft bilateral agreement with Western Australia, the legislation applies to the Commonwealth government and the government of Western Australia, focusing on updating and potentially modifying the classes of actions that are subject to environmental assessment and approval processes. This agreement is intended to streamline and enhance the cooperation between the Commonwealth and the state in managing environmental impacts. The geographic reach of the Act is national, extending across all jurisdictions within Australia, and its application is not limited by geographic boundaries. However, the Act does provide for exclusions, exemptions, and thresholds, particularly concerning the types of actions that may be exempt from certain assessments under Part 8 of the EPBC Act, contingent on the terms of the bilateral agreement. The scope of the Act is further extended or restricted through subordinate instruments, which may detail specific classes of actions and the conditions under which they may be exempt from assessment.

Key Provisions

The Minister for the Environment, Sussan Ley, has issued a notice under section 45(3) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) indicating the intention to draft a new bilateral agreement with Western Australia. This new agreement aims to revoke and replace the existing bilateral agreement from 3 October 2014. The primary intention behind this draft agreement is to potentially update the classes of actions listed in Schedule 1 of the current agreement, as well as to incorporate other miscellaneous updates. This update process is in line with subsection 47(1) of the EPBC Act, which allows for certain actions to be exempted from assessment under Part 8 of the Act if they fall within the declared classes of actions in a bilateral agreement. The Act imposes specific obligations and requirements on the parties involved in this process. The Minister, as the representative of the Commonwealth, must follow due process in developing the draft agreement, ensuring it aligns with the objectives of the EPBC Act. This includes consulting with relevant stakeholders, such as environmental groups, industry representatives, and the government of Western Australia, to gather input and feedback. The Minister must also ensure that any proposed changes to the classes of actions and other updates in the draft agreement are justifiable and necessary, considering their potential impact on biodiversity and the environment. Furthermore, the Minister must submit the draft agreement to the relevant parliamentary committees for scrutiny and approval before it can be finalised. Failure to comply with the provisions of the EPBC Act or the terms of the bilateral agreement can result in various legal consequences. Breaches of the Act may lead to both civil and criminal penalties, depending on the nature and severity of the violation. For instance, individuals or entities found to be in breach of the Act may face fines, imprisonment, or both. The exact penalties are determined by the courts, taking into account factors such as the extent of the environmental harm caused, the degree of intent, and any previous convictions. It is crucial for all parties involved to adhere to the requirements of the Act to avoid these adverse consequences and to ensure the continued protection of Australia's biodiversity and environment.