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 matters of national environmental significance, through a framework that ensures that the federal government and other stakeholders work together in an integrated manner. The Act was introduced to address the need for a comprehensive approach to environmental protection that can respond to the complex and multifaceted challenges of environmental conservation in Australia. Under the authority of the EPBC Act, the Minister for the Environment, Sussan Ley, issued a notice exempting the State of Victoria and its agencies from certain provisions of Part 3 of the EPBC Act in relation to firefighting, fire prevention, and fire recovery activities undertaken in response to the 2019/2020 bushfire season. The policy objective of this exemption is to facilitate more efficient and effective responses to bushfires by reducing regulatory burdens on state agencies, thereby allowing them to focus on urgent and critical firefighting and recovery efforts. The notice specifies that the exemption applies to emergency actions taken to prevent bushfires from damaging life, property, or matters of national environmental significance, as well as to urgent preventative actions and recovery efforts. By issuing this exemption, the Minister aims to streamline the regulatory processes and ensure that the state can respond promptly and effectively to the devastating impacts of bushfires, ultimately serving the national interest in protecting lives, property, and the environment during this critical period.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) provides the legislative framework for the protection of the environment and biodiversity, with specific provisions governing actions that may impact matters of national environmental significance. Under section 158 of the Act, the Minister for the Environment has the authority to exempt certain activities from the provisions of Part 3, which includes requirements for approval for actions that have, or are likely to have, a significant impact on matters of national environmental significance. In this context, the Minister has exempted the State of Victoria, its agencies, and those acting on their behalf from the application of all provisions of Part 3, excluding sections 21, 22A, 24B, 24C, 24D, 24E, 27B, and 27C, in relation to firefighting, fire prevention, and fire recovery activities undertaken in response to bushfires occurring during the 2019/2020 season. This exemption facilitates the urgent and effective management of bushfires by allowing essential activities to proceed without the need for approval under the EPBC Act, while ensuring that critical environmental protections remain in place through the exclusion of certain sections. The exemption applies nationally within the Commonwealth of Australia and is effective from the date of the notice.

Key Provisions

The main operative sections of the notice are sections 158(7) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) which permit the Minister for the Environment to exempt certain entities from the application of Part 3 of the Act. This exemption, under section 158, is specifically for the State of Victoria and its agencies, and those acting on their behalf, in relation to firefighting, fire prevention and fire recovery activities undertaken in response to bushfires that occurred or may occur during the 2019/2020 bushfire season in Victoria. The exemption extends to all provisions of Part 3 of the EPBC Act, excluding sections 21, 22A, 24B, 24C, 24D, 24E, 27B and 27C. This means that while most provisions of Part 3 are exempt, certain specific sections remain applicable. The obligations and requirements imposed by this notice are primarily on the State of Victoria and its agencies, as well as any individuals or entities acting on their behalf. These entities are now exempt from the provisions of Part 3 of the EPBC Act, except for the specified exclusions. This means that, for the purposes of bushfire response, these entities can carry out activities that would otherwise be subject to the EPBC Act without needing to comply with most of its requirements. However, they must still adhere to the excluded sections, ensuring that their activities do not contravene the specific provisions that remain in force. In terms of breaches and consequences, the notice itself does not outline specific offences or penalties for non-compliance with the exempted provisions. However, the underlying EPBC Act does include provisions for offences and penalties. For example, under section 468 of the EPBC Act, a person who contravenes a provision of the Act can be liable to a penalty of up to $750,000 for a corporation and $150,000 for an individual, or imprisonment for up to five years, or both. Additionally, there may be civil penalties for actions that cause harm to matters of national environmental significance, as outlined in Part 13 of the EPBC Act. While the exemption notice does not specify penalties, any actions taken under the exemption that result in breaches of the non-exempted sections of the EPBC Act would be subject to these penalties. Given the national emergency context of the bushfires, the notice is intended to facilitate a rapid and effective response to the crisis, ensuring that firefighting and recovery efforts are not unduly hampered by regulatory requirements. The exemption, however, is narrowly tailored to cover only those activities directly related to bushfire response, and specific sections of the Act remain in force to protect key environmental interests. This balance aims to address the immediate needs of the situation while preserving the long-term environmental safeguards provided by the EPBC Act.