This section deals with the principal Commonwealth Act relating to the environment. Following extensive negotiations with the States and Territories, the Commonwealth Parliament passed legislation in 1999 to clarify the extent of Commonwealth responsibility for the environment.
The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) implements the Intergovernmental Agreement on the Environment, which was signed by all three levels of government in 1992. The introduction of the EPBC Act represented the most significant change to Commonwealth environmental laws since the 1970s.
The EPBC Act aims to regulate amongst other issues, Matters of National Environmental Significance (MNES). These are set out below.
The Environment Protection and Biodiversity Conservation Act 1999 (Cth) covers three main areas.
Environmental Impact Assessment (EIA)
In particular, this involves the assessment and approval of:
- activities by the Commonwealth, or its agents, anywhere in the world or activities on Commonwealth land and
- activities that are listed as having a significant impact on matters of national environmental significance.
The main tool used is the listing and management of threatened species and ecological communities.
These include areas such as World Heritage sites and Commonwealth-administered National Parks.
The concept of 'Matters of National Environmental Significance' (MNES) is a political construction that does not necessarily reflect all nationally significant issues. At present, there are nine defined areas:
- World Heritage properties - A map of all Australian world heritage properties can be viewed at:
- Ramsar Wetlands - These are wetlands of international importance, particular as a habitat for birds. The name "Ramsar" comes from the town in Iran where the relevant international Treaty was signed. A map of all Australian RAMSAR wetlands can be viewed at: http://www.environment.gov.au/legislation/environment-protection-and-biodiversity-conservation-act/what-protected/wetlands
- Nationally listed threatened species and ecological communities- A list of the threatened species can be found at: http://www.environment.gov.au/biodiversity/threatened/index.html A list of the threatened ecological communities can be found at:http://www.environment.gov.au/topics/threatened-species-ecological-communitiesl Any member of the public can nominate a threatened species, ecological community or "key threatening process" for listing. To find out how to submit nominations visit : http://www.environment.gov.au/legislation/environment-protection-and-biodiversity-conservation-act/about-epbc-act/epbc-act-lists-0. National environmental groups such as ACF can also advise on how to make a nomination.
- Listed migratory species - These lists can be found at: http://www.environment.gov.au/biodiversity/migratory/index.html
- Activities related to nuclear energy, including uranium mining - [see ss 21 and 22 of the Act].
- The Commonwealth marine environment - maps of Commonwealth marine areas can be found at: http://www.environment.gov.au/legislation/environment-protection-and-biodiversity-conservation-act/what-protected/commonwealth.
- National Heritage Places - See: http://www.environment.gov.au/epbc/pmst/index.html.
- The Great Barrier Reef Marine Park - further information can be found at: http://www.gbrmpa.gov.au.
- A water resource in relation to coal seam gas development and large coal mining development - see: http://www.environment.gov.au/topics/about-us/legislation/environment-protection-and-biodiversity-conservation-act-1999/what-5.
The Commonwealth can add new matters to this list by regulation. The list must be reviewed every five years to see whether further matters should be included. If a proposed action is likely to have a significant impact on any of the areas, it may require Commonwealth approval before it can begin. It is illegal to undertake such an action without that Commonwealth approval.
Not all actions that affect a matter of national environmental significance need Commonwealth approval. The activity must be likely to have a significant impact on the matter. Whilst the legislation is silent as to the meaning of significant impact, the government has developed guidelines (http://www.environment.gov.au/epbc/publications/nes-guidelines.html), to help proponents decide if this is the sort of action that needs to be referred to the Minister for assessment and approval.
Commonwealth approval is required for any action that takes place on Commonwealth land, or that is likely to affect Commonwealth land, if it has a significant impact on the environment. This extends beyond the eight matters of national environmental significance already mentioned to include all environmental impacts.
There are some actions that may be exempt from the Commonwealth assessment and approval requirements, even if they do have a significant impact. One exception is the logging of forests in areas that are covered by a Regional Forest Agreement (RFA).
Under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), an action is defined as a project; a development; an undertaking; an activity; or an alteration to one of those things.
An action is not the granting of a government approval. For example the need for an export licence, or the provision of Commonwealth funding does not itself trigger the operation of the Act. This distinguishes the arrangements under the EPBC Act from earlier Commonwealth controls which were often targeted at funding or approval mechanisms to trigger environmental assessment.
The Environment Protection and Biodiversity Conservation Act 1999 (Cth) does not define what it means by the word significant, however its meaning is crucial to determining whether or not Commonwealth assessment and approval is required.
Under the Significant Impact Guidelines, factors to consider in determining significance include:
- all on-site and off-site impacts;
- all direct and indirect impacts;
- the frequency and duration of the action;
- the total impact that can be attributed to the action over the entire geographic area affected and over time;
- the sensitivity of the receiving environment;
- the degree of confidence with which the impacts of the action are known and understood.
The current Guidelines provide the information necessary to determine whether an activity (action) may have a significant impact on a matter of national environmental importance and thereby trigger Commonwealth responsibility. Significant impacts can include indirect and cumulative impacts.
In order for the Commonwealth government (Minister for Environment) to know that an action requires assessment, it must first be made aware of the proposed action. The process of telling the Minister about a proposed action is known as referral. This referral can be made by the person proposing the activity (eg. a developer or landowner), by another Minister, or by a Commonwealth or State Government agency or local council.
In practice, a member of the public may refer a proposed action or development to the Environment Minister, however the Minister is not legally obliged to respond. If a member of the public believes the proposed activity should be referred, he or she can either ask the person proposing the activity or a State or Commonwealth agency or Minister to make the referral.
Once the referral is made the proposed activity is assessed to decide whether it requires approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). If the action is assessed to be likely to have significant impact of a matter of national environmental significance, then it will be declared to be a controlled action that requires Commonwealth environmental impact assessment and approval. Once the action has been declared a controlled action, the Minister publishes a notice to that effect on the EPBC Act website:http://www.environment.gov.au/topics/about-us/legislation/environment-protection-and-biodiversity-conservation-act-1999.
Once assessed, the Minister will either approve or reject the proposed action. Mostly, actions are approved subject to specific conditions. For example a condition may include that a bond be provided as security for the action or that the action be subject to independent environmental auditing. If the developer does not follow these conditions, or approval has not been acquired for an action that requires approval, legal action can be taken by the Minister to stop the action continuing.
The Minister can also prosecute the developer for any illegal action that has occurred. The Minister may decide to revoke or suspend an approval where the approval or any conditions have been breached, or the impacts of the action were inaccurately identified due to negligence or deliberate omission on the part of the developer.
There are a number of Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) decisions which allow formal public participation. Once notice has been given about the assessment of a proposed action the public has ten business days to lodge a submission. Submissions can be made on the EPBC Act website: http://www.environment.gov.au/topics/about-us/legislation/environment-protection-and-biodiversity-conservation-act-1999.
The Minister must then make the decision regarding the referral within twenty business days of receiving the referral, unless further information is needed. In making the decision the Minister must consider public comments. The Minister must give notice of, and the reasons for, the decision to the person proposing the action.
There is no general right of appeal against the Minister's decision. The only mechanism that can be used to challenge the Minister's decision is judicial review by the Federal Court if the Minister has made an error of law in making the decision.
The public may have further rights to comment during the environmental impact assessment process depending on the type of process undertaken.
The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) does not necessarily override State law. The Act establishes assessment and approval requirements that are to be considered in addition to existing approvals required under State law. This means that an action still needs to be approved under all applicable State laws as well as under the EPBC Act. Under the Act, the Commonwealth can enter into a bilateral agreement with the State or Territory, which has the effect of delegating the Commonwealth's assessment and approval powers to the State or Territory Government. There is a current bilateral agreement between South Australia and the Commonwealth.
The Commonwealth has recently revised its assessment bilateral agreement with South Australia and intends to implement an approval bilateral.
If a person believes that the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) has been or will be breached, it is possible for an individual or a conservation group to take legal action to prevent the breach or anticipated breach. Usually this will only be necessary where the Minister has not responded to calls to take enforcement action. For example, an application to the court can be made seeking an injunction to stop illegal work from proceeding.
To bring such an action, the person or group taking the action must be an "interested person". This means that the person or group must have established environmental credentials. Usually, this means having been involved in a series of activities to protect the environment for a period of at least the past two years. If an organisation is bringing the legal action, then the objects of that organisation must include the protection of the environment.
If harm to the environment is about to occur, action must be taken quickly to apply for an injunction. In urgent cases it is best to obtain legal advice from the Environmental Defenders Office or a private lawyer to determine what options are available. Alternatively, you can contact the Department for the Environment to request government intervention. The EPBC Act provides for civil and criminal penalties that can be applied to any breach. Penalties can range with fines up to $550 000 for an individual and $5.5 million for a corporate body.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.