Notice of Exemption from a Provision of Part 3 (EPBC Act Section 158(7))

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) was enacted to provide for the protection of the environment, particularly with respect to matters of national environmental significance. The Act was introduced to address gaps in the protection of the environment and biodiversity, particularly in areas that require national coordination and oversight. The Act empowers the Minister for the Environment to grant exemptions from certain provisions of the EPBC Act when it is in the national interest to do so. This is done under the authority of section 158 of the EPBC Act, as demonstrated by the recent exemption notice issued by Minister Sussan Ley on 31 July 2020. The notice exempts the Commonwealth, represented by the Department of Industry, Science, Energy and Resources, and those acting on its behalf, from specific provisions of the EPBC Act in relation to lighthouse operations concerning the Northern Endeavour Floating Production, Storage and Offtake Facility and associated infrastructure until 31 December 2021. The policy objective of this exemption is to ensure the safe and effective management of the facility while maintaining compliance with previously accepted safety and environmental plans.

Scope and Application

The exemption notice issued by Sussan Ley, the Minister for the Environment, pursuant to section 158 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), exempts the Commonwealth, represented by the Department of Industry, Science, Energy and Resources (DISER) or any other Commonwealth agency, and those acting on their behalf, from the application of specific provisions of Part 3 and Chapter 4 of the EPBC Act, except for certain sections, in relation to the taking of "lighthouse operations" concerning the Northern Endeavour Floating Production, Storage and Offtake Facility and associated infrastructure, until 31 December 2021. "Lighthouse operations" are defined to include essential activities such as critical inspections, monitoring, maintenance, and repair work aimed at managing and preventing risks to personnel, the environment, and maritime safety and security, provided that these activities are conducted in accordance with previously accepted safety protocols and under the advice and assurance of NOPSEMA. Notably, this exemption excludes well production, injection, or crude offtake activities. The exemption is effective from the date of the notice, and the Minister's statement of reasons for this decision is publicly accessible via the specified internet address.

Key Provisions

The Notice of Exemption issued under section 158 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) (section 158(7)) outlines that the Commonwealth, represented by the Department of Industry, Science, Energy and Resources (DISER), and any other Commonwealth agencies, as well as those acting on their behalf, are exempt from certain provisions of Part 3 of the EPBC Act and Chapter 4, relating to the taking of “lighthouse operations” in connection with the Northern Endeavour Floating Production, Storage and Offtake Facility and associated infrastructure until 31 December 2021. The specified provisions from which exemption is granted include, but are not limited to, sections 12, 15A, 15B, 15C, 16, 17B, 21, 22A, 24B, 24C, 24D, 24E, 27A, 27B, and 27C. This exemption is limited to "lighthouse operations," which encompass essential activities such as critical inspections, monitoring, maintenance, and repair work necessary to manage and prevent risks to personnel, the environment, and maritime safety and security. These operations must comply with the previously accepted Safety Case, Well Operations Management Plan, and Environment Plan, and adhere to good oil field practices, as advised and assured by NOPSEMA. Notably, this exemption does not extend to well production, injection, or crude offtake activities. Under the terms of this exemption, the Commonwealth and any agencies acting on its behalf are relieved from the procedural and regulatory requirements outlined in Part 3 and Chapter 4 of the EPBC Act. This includes, but is not limited to, the need to obtain approval for actions that may impact listed threatened species, ecological communities, or heritage places. Instead, the Department of Industry, Science, Energy and Resources, or any other Commonwealth agency, must ensure that their lighthouse operations are conducted in accordance with the established Safety Case, Well Operations Management Plan, and Environment Plan, and that these operations are carried out in a manner that complies with good oil field practices. The exemption, however, does not permit any activities that would otherwise be prohibited under the EPBC Act or any other applicable legislation. Failure to comply with the conditions outlined in this exemption may result in civil or criminal penalties. Under the EPBC Act, an individual or entity found to have contravened the Act can be subject to significant fines. For corporations, the maximum penalty can be up to $63,000,000 or three times the benefit obtained from the offence, whichever is the greater. For individuals, the maximum penalty can be up to $6,300,000 or imprisonment for up to five years, or both. Additionally, the courts may also impose other civil remedies, such as injunctions or orders for the restoration of the environment, to address any harm caused by non-compliance. It is important for those subject to this exemption to adhere strictly to the conditions and requirements set out to avoid any legal repercussions.