RESEARCH PAPER SERIES, 2018–19              8 MAY 2019

Environment Protection and Biodiversity Conservation Act 1999: a quick guide

Sophie Power

Science, Technology, Environment and Resources Section

Introduction

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) came into force on 16 July 2000. The EPBC Act is administered by the Commonwealth Department of the Environment and Energy (the Department) and is considered by the Commonwealth Government to be the ‘key piece’ of legislation relating to the environment.

The EPBC Act is focussed on matters of national environmental significance, which are based primarily on Australia’s responsibilities under international agreements on environmental protection as well as the 1997 Heads of agreement on Commonwealth and State roles and responsibilities for the Environment.

The EPBC Act contains two key regimes, which are outlined in this guide. The first is the environmental assessment regime for actions that are likely to have a significant impact on matters of national environmental significance. The second is the regime for biodiversity conservation, which includes, for example, processes for listing and managing threatened species, ecological communities and protected areas (such as National and Commonwealth Heritage places and Commonwealth reserves), as well as provisions regulating wildlife trade.

Environmental assessment processes

Matters of national environmental significance

Under the EPBC Act, actions that have, or are likely to have, a significant impact on a matter of national environmental significance require approval from the Commonwealth Environment Minister. An ‘action’ is generally defined as a project, development, undertaking, activity or a series of activities, or an alteration of any of these (sections 523–524A of the EPBC Act). Existing activities do not require approval, although a substantial change such as an enlargement, expansion or intensification of that activity may require approval (sections 43A and 43B).

‘Significant impact’ is not defined in the EPBC Act, although the Department has issued guidelines which state that a ‘significant impact’ is one that is ‘important, notable or of consequence having regard to its context or intensity’.

The matters of national environmental significance (or ‘triggers’) are set out in Part 3 of the EPBC Act as follows:

•        world heritage properties

•        national heritage places

•        wetlands of international importance (listed under the Ramsar Convention)

•        listed threatened species and ecological communities

•        migratory species protected under international agreements

•        Commonwealth marine areas

•        the Great Barrier Reef Marine Park

•        nuclear actions (such as uranium mines, although nuclear power plants are prohibited) and

•        a water resource, in relation to coal seam gas development and large coal mining development (known as the ‘water trigger’).

In addition, approval is required for actions by Commonwealth agencies that are likely to have a significant impact on the environment, and actions by any person likely to have a significant impact on the environment on Commonwealth land.

Three of these matters of national environmental significance have been added by amendments to the EPBC Act since it first commenced: national heritage places were added in 2003; the Great Barrier Reef Marine Park was added in 2008 and the water trigger was added in 2013.

Matters of national environmental significance can also be added through regulations made under the Act, although this has never been done. Before making such regulations, the Commonwealth Environment Minister must consult with the states and territories, although their agreement is not needed.

There have been numerous proposals over the years to expand the EPBC Act’s list of matters of national environmental significance to include matters such as greenhouse gas emissions, land clearing and national parks. However, conservation groups are now calling for expanded national oversight of a wider range of matters under a new generation of national environmental laws.

Assessment process

Actions that require approval under the EPBC Act undergo an environment assessment process, as set out in the EPBC Act, and supplemented by the EPBC Regulations. The process first involves a ‘referral’, followed (if needed) by the assessment stage:

•        Referral stage—A proposed action is first ‘referred’ by the proponent to the Commonwealth Environment Minister for his or her decision as to whether the action is a ‘controlled action’: that is, whether it requires formal assessment and approval under the EPBC Act. This decision is based on whether the proposed action is likely to have a significant impact on one or more of the matters of national environmental significance (as listed above). If approval is required, then the proposed action proceeds to the assessment and approval stage. Over the history of the EPBC Act, around 30 per cent[1] of referred actions have been found to require approval.

At the referral stage, the Minister may also decide at the outset that the proposed action is ‘clearly unacceptable’ and cannot proceed. At the time of writing, only ten actions have ever been found to be ‘clearly unacceptable’ following referral under the EPBC Act.

Alternatively, the Minister may decide the action is not a controlled action provided it is undertaken in a particular manner (known as a ‘particular manner’ decision). Over the history of the EPBC Act, around 19 per cent of referred actions have not needed approval on this basis.

•        Assessment stage—The Minister (or his or her delegate) will then determine the method of assessment for the controlled action, based on considerations set out in the EPBC Act and regulations. The assessment methods include: an accredited assessment approach, assessment based on information contained in the referral to the Commonwealth, assessment based on preliminary documentation, a public environment report (PER), an environmental impact statement (EIS) or a public inquiry. The appropriate assessment approach will depend on a range of matters, such as the scale and nature of an action’s impacts. There are different timing and content requirements for each method, although all require public consultation with minimum timeframes for that consultation usually being between 10–20 business days.

In practice, assessment bilateral agreements are in place with all states and territories (as discussed below). This means that many projects are assessed under accredited state or territory processes, but the Commonwealth Environment Minister makes the final decision as to whether or not to approve the action (and whether the approval is subject to conditions). Approval may also be required at the state or territory level under relevant state or territory legislation.

Strategic assessments

The EPBC Act also provides for strategic assessments, which are discretionary, and are designed to assess the likely overall impacts of a range of actions taken under a policy, plan or program. Once the strategic assessment is completed, the Commonwealth Environment Minister can endorse the policy, plan or program, and approve all classes of development (and associated actions) which have been assessed under this process. This means that an individual project referral and approval may not be needed for those actions under the EPBC Act, although state legislation may still apply. For example, in 2014, the Minister for the Environment endorsed a strategic assessment of offshore petroleum activities in Commonwealth waters. As a result, where those activities are taken in accordance with offshore petroleum legislation, they are now regulated by the National Offshore Petroleum Safety and Management Authority and no longer need to be referred for assessment and approval under the EPBC Act. The EPBC Act also provides for strategic assessments of fisheries managed under Commonwealth legislation and state export fisheries.

Approval decision

Once a project has been assessed, the Commonwealth Environment Minister then decides whether to approve an action under the EPBC Act, and the conditions to attach to that approval. Following assessment, almost all projects are approved with conditions: only 12 decisions have been made not to approve projects under the EPBC Act since the Act’s commencement in 2000.
In making the approval decision, the Minister must consider a number of matters including:

•        all adverse impacts (direct and indirect) of the proposed action on relevant matters of national environmental significance[2]

•        economic and social matters

•        the principles of ecologically sustainable development (as set out in section 3A of the EPBC Act)

•        the assessment documentation which details the impacts of the proposed action

•        community and stakeholder comments

•        the recommendation report from the Department (which recommends whether the action should be approved and any conditions that should be attached to the approval)

•        comments from other Commonwealth Government or state and territory government ministers (if any) and the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (where relevant) and

•        whether the person or company (including parent companies and executive officers) is a ‘suitable person’ to be granted an approval, based on their environmental history.

The EPBC Act sets out timeframes within which the Minister must make this approval decision, although the Minister may extend this timeframe.

Once a project has received approval, the approval may specify a number of conditions. This can include, for example, the preparation of management plans, which may also require approval from the Commonwealth Environment Minister. Environmental offsets are also regularly prescribed as conditions of approval for proposed developments that impact on listed threatened species and ecological communities. Offsets are measures that aim to compensate for the residual impacts of an action on the environment, after avoidance and mitigation measures are taken. Offsets have been the subject of criticism including during Senate Committee inquiries (see, for example, the inquiry into Environmental Offsets or Australia's faunal extinction crisis).

The Department has published a fact sheet and flowchart of the environmental assessment process on its website. The website also has a searchable public notices database which contains notices relating to the EPBC Act, such invitations to comment on projects referred under the Act and notices of decisions on assessment approach as well as approval decisions.

Exemptions

There are a number of exceptions and exemptions from the assessment and approval regime in the EPBC Act. For example, forestry operations conducted in accordance with Regional Forest Agreements do not need approval under the EPBC Act. There is also a broad discretion for the Minister to issue exemptions under section 158 for projects in the ‘national interest’. The term ‘national interest’ is not defined, but the Minister may consider matters such as Australia’s defence or security, or a national emergency. Exemption notices are also published on the public notices database.

Bilateral agreements

As noted above, most actions that require approval under the EPBC Act also need separate approvals under relevant state or territory legislation. Some industry groups argue this is unnecessary duplication which in turn results in additional costs and delays for those projects. In order to minimise this duplication, Chapter 3 of the EPBC Act allows the Commonwealth to enter into bilateral agreements with the states and territories.

Bilateral agreements enable the Commonwealth to accredit relevant state and territory processes, to effectively delegate the assessment of actions which would otherwise require assessment under the EPBC Act. The Commonwealth Government has used such agreements to pursue its ‘one-stop shop’ policy of having a single environmental assessment and approval process on matters of national environmental significance. The aim is to minimise duplication in the assessment and approval process for actions which require approval under both Commonwealth and state or territory laws.

There are two types of bilateral agreements:

•          assessment bilateral agreements, which provide for a single assessment process by accrediting a state or territory process to assess the environmental impacts of a proposed action. After assessment, the proposed action still requires two separate approval decisions from the Commonwealth (under the EPBC Act) and relevant state or territory frameworks

•          approval bilateral agreements, which can accredit the assessment and approval process of a state or territory. A proposed action covered by an approval bilateral agreement does not require further approval by the Commonwealth Minister. Approval bilateral agreements cannot cover projects involving the water trigger: in 2014, a Bill was introduced to amend this exception, but did not pass parliament.

At the time of writing, assessment bilateral agreements were in place with all states and territories. Draft approval bilateral agreements for many states were published in 2014–15, but to date none have been finalised.

In 2014, the Commonwealth Government released Standards for Accreditation of Environmental Approvals under the EPBC Act, which sets out environmental standards and considerations for accreditation of state and territory approval processes through bilateral agreements. The Commonwealth has also published a condition-setting policy which aims to reduce duplicative conditions in projects that require both state and Commonwealth approval.

Biodiversity Conservation

In addition to the environmental assessment and approval process outlined above, Chapter 5 of the EPBC Act contains a regime for biodiversity conservation, including provisions dealing with:

·         processes for listing of nationally threatened species and ecological communities and the preparation of conservation advices or recovery plans for listed species and communities

·         identifying and listing key threatening processes (such as invasive species) and the (optional) preparation of threat abatement plans for such processes

·         establishment of the Australian Whale Sanctuary in Australia's exclusive economic zone

·         access to biological resources in Commonwealth areas

·         international wildlife trade (involving the import and export of plants and animals and wildlife products, including internationally endangered species listed under the Convention on International Trade in Endangered Species of Wild Fauna And Flora (CITES)) and

·         listing, protection and management of World Heritage properties, National and Commonwealth Heritage places, Ramsar wetlands and Commonwealth reserves (including Marine Parks).

Enforcement and review mechanisms

The EPBC Act also has a range of enforcement mechanisms for managing non-compliance. Notably, certain third parties (‘interested persons’) may apply to the Federal Court for an injunction to stop a party from engaging in conduct that constitutes an offence or other contravention of the EPBC Act or Regulations. The EPBC Act defines an ‘interested person’ as a person or organisation whose interests have been, or would be, affected by the conduct in question, or who has been engaged in a series of activities for the protection or conservation of (or research into) the environment at any time within the past two years.

The EPBC Act also contains mechanisms for review of decisions made under the EPBC Act. ‘Interested persons’ can request a statement of reasons for decisions and may also seek judicial review in the Federal Court of Ministerial decisions made under the EPBC Act. However, this review is focussed on whether the correct legal procedures have been followed, rather than the merits of the decision. These provisions have been used infrequently and often unsuccessfully, but have nonetheless generated debate. Amendments were proposed to these provisions in 2015 but did not progress through parliament.

Reporting and reviews

The Department prepares annual reports on the operation of the EPBC Act which can be found in Appendices to the Department’s annual reports.

Section 522A of the EPBC Act also requires independent reviews of the operation of the Act to be conducted every 10 years. The last review, known as the Hawke review, was conducted in 2009. The Hawke review made 71 recommendations, not all of which were accepted by the government response. Many of the recommendations of the Hawke review have never been implemented. A second 10-year review is due to commence by October 2019.

As noted earlier, some stakeholders—such as conservation groups and environmental lawyers—are calling for a complete overhaul of the EPBC Act, potentially involving entirely new national environmental laws and establishing an independent national environment protection agency.

Further reading

Department of the Environment and Energy webpages, including:

•        ‘EPBC Act publications and resources’

•        ‘About the EPBC Act’ and

•        ‘EPBC Act – Public notices database’.

Department of the Environment, Water, Heritage and the Arts, The Australian Environment Act–Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999: Final report, October 2009 (the Hawke review).

S Power and J Tomaras, Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015, Bills digest, 37, Parliamentary Library, Canberra, November 2015.

Senate Environment and Communications References Committee, Australia’s faunal extinction crisis, The Senate, Canberra, April 2019.

Senate Select Committee on Red Tape, Effect of red tape on environmental assessment and approvals, The Senate, Canberra, October 2017.

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[1].               Statistics in this guide are based on the Appendix 4 of the Department’s Annual Report 2017–18 or the public notices database.

[2].               Although the Minister is not required to consider ‘cumulative impacts’, which is the overall combined impact of the proposed action and other existing or prospective actions in the relevant area.