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The information contained in this fact sheet is current as at 8 February, 2008.

Topic 2 - Planning and Development

2.2. Commonwealth Environmental Assessment Law

2.2.1. Overview

In some cases a person planning an activity or development may need to obtain approval from the Commonwealth Environment Minister, in addition to any approval needed under New South Wales law.

2.2.2 What kinds of activities may require federal approval?

Under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), it is necessary to obtain an approval from the Federal Minister for the Environment, Heritage and the Arts to carry out a 'controlled action'.

2.2.3 What is a ‘controlled action’?

‘Actions’ include such things as projects, developments, undertaking and activities, or an alteration to one of these things. A decision by government to grant approval for an action, or make a grant of funding is not an action.

‘Controlled actions’ include:

• actions likely to have a significant impact on a ‘matter of national environmental significance’;
• actions likely to have a significant impact on the environment of Commonwealth land; and
• actions by the Commonwealth Government or a Commonwealth agency likely to have a significant impact on the environment.

2.2.4 What is a ‘matter of national environmental significance’?

There are currently seven ‘matters of national environmental significance’ listed under the Act:

• World Heritage values of World Heritage properties;
• wetlands of international importance (Ramsar wetlands);
• Commonwealth listed threatened species and ecological communities;
• listed migratory species;
• Commonwealth marine areas;
• nuclear actions; and
• listed National and Commonwealth Heritage places.

Each of these matters will "trigger" the operation of the Act. Additional matters of national environmental significance may be added without the agreement of the States, after consultation, and the list must be reviewed every five years to see whether further triggers should be added (but not deleted).

2.2.4.1 World Heritage Properties

There are currently sixteen sites in Australia on the World Heritage list:

1. Heard and McDonald Islands
2. Macquarie Island
3. Tasmanian Wilderness
4. Naracoote and Riversleigh Fossil Mammal Sites
5. Lord Howe Island Group
6. Central Eastern Rainforest Reserves of Australia
7. Willandra Lakes Region
8. Shark Bay
9. Uluru-Kata Tjuta National Park
10. Kakadu National Park
11. Fraser Island
12. Wet Tropics of Queensland
13. Great Barrier Reef
14. Greater Blue Mountains Area
15. Purnululu National Park
16. Royal Exhibition Building and Carlton Gardens, Melbourne

Each World Heritage property has specified ‘World Heritage values’. A person must not take an action that has, will have or is likely to have a significant impact on the World Heritage values of a declared World Heritage property without an approval.

'Significant impact' is defined as an action that does, will, or is likely to result in or one or more of the World Heritage values being lost, degraded or damaged. Activities outside the World Heritage property which affect the World Heritage values may also require approval (see Text Box 2.7 – Case Study: Protection of World Heritage Values).

A map of all World Heritage sites and tables of the World Heritage values for each site can be found on the website of the Department of the Environment, Water, Heritage and the Arts (the Department).

2.2.4.2 Ramsar Wetlands

A person must not take an action that has, will have, or is likely to have a significant impact on the ecological character of a Ramsar wetland without an approval. Activities outside of the Ramsar wetland which affect the wetland, such as upstream water diversions or clearing of vegetation, could still trigger the need for approval even though they are not within the wetland.

A database of Ramsar wetlands can be found on the Department's website.

2.2.4.3 Listed Threatened Species and Ecological Communities

Actions that have, will have, or are likely to have a significant impact upon either a Commonwealth listed ‘threatened species’ (critically endangered, endangered or vulnerable species) or a listed ‘threatened ecological community’ (critically endangered or endangered, but not vulnerable) also require an approval.

State and Territory Governments also maintain lists of threatened species under their own laws. In order to trigger the environmental assessment provisions for the Environment Protection and Biodiversity Conservation Act, a species or ecological community must be listed on the Commonwealth threatened species list.

Complete lists of nationally listed threatened species and ecological communities can be found on the Department's website

2.2.4.4 Listed Migratory Species

A list of migratory species is published by the Minister. The list must include only the following:

• any birds listed under the Agreement between the Government of Australia and the Government of the People’s Republic of China for the protection of Migratory Birds and their Environment (CAMBA Convention), and
• any birds listed under the Agreement between the Government of Japan and the Government of Australia for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment (JAMBA Convention); and
• any animals listed under the Convention on the Conservation of Migratory Species of Wild Animals (the Bonn Convention); and
• any native species listed under an international agreement for the conservation of migratory species approved by the Minister.

A person must not take an action that has, will have or is likely to have a significant impact on a listed migratory species. Unfortunately, there are no maps available from the Department that show the location of the habitat of all these migratory species. In order to find this out, it may be necessary to consult an expert ecologist.

The list of migratory species is available on the Department's website.

2.2.4.5 Commonwealth Marine Areas

The Commonwealth marine areas includes waters:

• between three nautical miles and two hundred nautical miles from Australia’s coast (waters within three nautical miles of the coast are generally State waters); and
• over the continental shelf (excluding those over which the States and Northern Territory have been given power).

Commonwealth marine areas include the seabed under those waters and the airspace over the waters.

A person must not take an action that has, will have, or is likely to have a significant impact on the environment of a Commonwealth marine area without an approval.

This includes activities that are being undertaken outside of a Commonwealth marine area but have a significant effect on the environment inside the marine area.

Information about Commonwealth marine areas can be found on the Department's website.

2.2.4.6 Nuclear Actions

'Nuclear actions' that are likely to have a significant impact on the environment must be referred to the Commonwealth Minister for approval. The term 'nuclear actions' includes building a nuclear installation, transporting spent nuclear fuel and mining or milling uranium.

2.2.4.7 Listed National and Commonwealth Heritage Places

National Heritage Plance

A place listed on the National Heritage List is called a National Heritage place. A place may be included in the National Heritage List if the Minister is satisfied that the place has one or more National Heritage values. These values are prescribed by regulation. The following types of values must be included: natural heritage of a place; indigenous heritage of a place; and historic heritage of a place.

Commonwealth Heritage List

A place listed on the Commonwealth Heritage List is called a Commonwealth Heritage place. A place may be included in the Commonwealth Heritage List if the Minister is satisfied that the place is within a Commonwealth area (or is outside Australia and is owned or leased by the Commonwealth) and has one or more Commonwealth Heritage values.

A person must not take an action that has, will have, or is likely to have a significant impact on the heritage values of a listed National or Commonwealth Heritage place without an approval.

2.2.5 What is ‘Commonwealth Land’?

Any action that has, will have, or is likely to have a significant impact on Commonwealth land, requires an approval. This includes actions that are not being carried out on Commonwealth land, if they are likely to have a significant impact on Commonwealth land.

‘Commonwealth land’ includes:

• land owned by the Commonwealth (or a Commonwealth agency), including airspace over the land;
• any area of land held under lease by the Commonwealth (or a Commonwealth agency), including airspace over the land;
• land in an external Territory or the Jervis Bay Territory, including airspace over that land; and
• any other area of land that is included in a Commonwealth reserve.

2.2.6 What is the Commonwealth or a Commonwealth agency?

Any action by the Commonwealth or a Commonwealth agency which has, will have, or is likely to have a significant impact on the environment inside or outside Australia, requires an approval.

‘Commonwealth agency’ as defined in the EPBC Act includes:

• a Commonwealth Minister;
• a Commonwealth department;
• a company owned or controlled by the Commonwealth;
• an organisation established under Commonwealth law or by a Commonwealth Minister; or
• a person holding an office under Commonwealth law.

Note that certain exceptions do apply. If you are unsure whether an activity is being carried out by a Commonwealth agency, contact the Environmental Defender’s Office.

2.2.7 What does ‘significant impact’ mean?

The EPBC Act does not define 'significant', even though the way in which 'significant' is interpreted is very important in working out whether an action needs Commonwealth approval.

However, ‘significant impact’ is defined generally and in relation to Matters of National Environmental Significance.

The Commonwealth has published Administrative Guidelines to assist developers, government agencies and the community into decide whether a proposed action will have, or is likely to have, a significant impact.

The Administrative Guidelines can be found on the website of the Department of the Environment, Water, Heritage and the Arts website.

Factors to take into account when determining whether an impact is significant include:

• all on-site and off-site impacts;
• all direct and indirect impacts;
• the frequency and duration of the action;
• the total impact which can be attributed to the action over the entire geographic area affected and over time;
• the sensitivity of the receiving environment; and
• the degree of confidence with which the impacts of the action are known and understood.

2.2.8 What are the exceptions?

In some cases, an action will not need approval by the Commonwealth Environment Minister despite triggering the EPBC Act as described above. Key exceptions include:

• The action has been approved in accordance with an approval bilateral agreement.

The EPBC Act allows the Commonwealth to enter into agreements with the States and Territories, which may allow a State or Territory approval to be recognised for the purposes of the EPBC Act. That is, the State approval process replaces the Commonwealth process. These agreements are known as ‘approval bilateral agreements'. At the time of publication there were no approval bilateral agreements in place. There are currently approval bilateral agreements between NSW and the Commonwealth covering the National Action Plan for Salinity and Water Quality the Sydney Opera House and the delivery of the National Heritage Trust in NSW.

• The action is exempted by a Ministerial declaration.

There are two types of Ministerial declarations that can be made. The first allows the Minister to declare that actions taken in accordance with accredited management plans do not require approval.

The second type of declaration allows the Minister to declare that actions in a specified class of action do not require assessment under the EPBC Act, if they have been assessed by the Commonwealth or a Commonwealth agency in a particular way.

• The action is covered by a Regional Forest Agreement.

The Act states that it is legal to undertake forestry operations without an approval if the forestry operations are in accordance with an applicable regional forest agreement as defined in the Commonwealth Regional Forests Agreements Act 2002. However, approval may still be required if the forestry operations are in a World Heritage Area, a Ramsar wetland or incidental to another action whose primary purpose is not forestry.

• The action is authorised under the Great Barrier Reef Marine Park Act 1975.

No approval is required if the action is authorised by either a zoning plan, plan of management, permission, authority, approval or permit under the Commonwealth Great Barrier Reef Marine Park Act 1975, although there may still need to be an assessment under the EPBC Act.

• Fishery activities carried out in accordance with a plan of management under the Fisheries Management Act 1991.

If the Minister endorses a plan of management for a fishery, under the Commonwealth Fisheries Management Act 1991, the Minister must make a declaration that actions taken in accordance with the plan do not require approval.

2.2.9 Referral, Assessment and Approval

As set out above, the following actions will need approval from the Commonwealth Environment Minister before the activity or development begins.

• actions likely to have a significant impact on a matter of national environmental significance;
• actions likely to have a significant impact on the environment of Commonwealth land; and
• actions by the Commonwealth or a Commonwealth agency likely to have a significant impact on the environment.

If the EPBC Act applies to a particular action, and it is carried out without an approval from the Commonwealth Environment Minister, the action will be unlawful and the person or organisation carrying out the action may be prosecuted or have an injunction issued against them.

2.2.9.1 Referral

How is the Minister alerted to proposed activities or developments covered by the EPBC Act?

Proposed activities or developments can be referred to the Commonwealth Environment Minister in four ways:

• The person or organisation proposing to take the action has a duty to refer it to the Minister for a decision as to whether the proposed action is a ‘controlled action’ requiring assessment and approval.
• A State or Territory government or a State or Territory agency that has responsibilities relating to the proposed action can refer the proposal to the Minister. For example, departments of planning, land and water conservation, national parks or environment, or state government authorities. There is some dispute as to whether local councils can make referrals.
• The Commonwealth Environment Minister may request the proponent to refer the proposal to him or her. If no referral is made within the set time period, the Minister can deem the action to be referred.
• A Commonwealth agency or Minister having responsibilities relating to the proposed action can refer the proposal to the Minister.

Can members of the public refer a proposed activity or development to the Commonwealth Environment Minister?

Individuals and community groups cannot formally refer actions by other people to the Minister. A proposal can only be referred to the Minister for a decision by the individuals and organisations listed above.

If you want a proposal to be referred to the Minister for a decision as to whether a Commonwealth approval is required you should write to either the proponent or to any of the government bodies listed above, asking them to refer the proposal to the Minister. You could also write to the Minister asking him or her to request that the proponent refer the matter, and report the proposal to the Compliance and Enforcement section of Department of Environment, Water, Heritage and the Arts. A sample letter about a referral and tips for writing letters are contained in Section 12.

Who decides whether a proposed activity or development is covered by the EPBC Act?

If a proposal is referred, it is the Commonwealth Environment Minister who decides whether a proposed activity is triggers the operation of the EPBC Act.

If the Minister decides that a proposed development or activity is covered by the EPBC Act, it is called a ‘controlled action’ and will need to be assessed and approved by the Minister before it can go ahead. At this stage the Minister also designates a ‘proponent’ who is the person or organisation needing an approval for the action.

There are significant penalties for taking a controlled action without approval. The maximum penalty for an individual is $550 000 and the maximum penalty for a body corporate is $5.5 million. Some offences are also punishable with up to seven years imprisonment.

How does the Minister decide whether a proposed activity or development is a ‘controlled action’? Are there opportunities for public participation?

The Minister must publish the referral on the Department's website and invite the public to comment as to whether the action is a controlled action within ten business days. If the proponent agrees that the proposed activity or development is a ‘controlled action’, the public does not have an opportunity to comment at this stage. As illustrated by the case study below, public comments on the information provided by a proponent can be extremely important.

The ten-day time limit is specified in the EPBC Act. There is no provision for extending this time.

The Minister must make a decision within 20 business days of receiving the referral, unless further information is requested, in which case the clock stops. In deciding whether the action needs approval the Minister must take into account the ‘precautionary principle’. The precautionary principle states that a lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment, where there are threats of serious or irreversible damage.

If the Minister finds that an approval is not required, the proponent cannot be prosecuted, even if the activity or development when carried out does significantly affect a matter of national environmental significance or Commonwealth land.

Once the Minister has decided whether an action requires an approval, the Minister must give notice of the decision, and reasons for the decision if requested by any person who has the right to bring court action (see Section 1.7 on ‘standing’). The decision is also posted on the Department's website. The Minister may also change his or her mind if substantial new information becomes available or unforeseen circumstances have arisen, unless an approval has already been given or the action has been taken.

How do I comment on referral documents?

There are no formal requirements for commenting on referrals. However, all submissions should include your name, address and contact details. When making your comments you should:

• read the referral documents carefully. Point out any missing or wrong information in your comments, e.g. listed species not mentioned, incorrect hydrological impact information;
• attach any existing evidence or reports which support your comments, e.g. lists of birds spotted in the area;
• make reference to the Administrative Guidelines, or any other relevant material, to show significant impact; and
• comment on the assessment approach that should be used (for example, environmental impact statement).

It is important to comment at this stage. If the action is not declared as controlled, there will be no environment impact assessment undertaken by the Commonwealth.

2.2.9.2 Assessment

If the Commonwealth Environment Minister decides that a proposed activity or development is a ‘controlled action’ under the EPBC Act, the next step is for the Minister to assess the environmental impacts of the proposal.

The EPBC Act provides a range of ways for a controlled action to be assessed, and it is the Minister who decides on the nature of the assessment. The EPBC Act sets out information that must be provided to the Minister by the proponent of the controlled action, and factors that the Minister must consider when making a decision about what kind of assessment should be done.

An exception to this process occurs if the Commonwealth has signed an ‘bilateral assessment agreement’. This will be explained later in this section.

What is assessed?

The Commonwealth assessment and approval process under the EPBC Act only applies to ‘relevant impacts’ of the proposed action. The relevant impacts are those relating to a matter of national environmental significance, Commonwealth land, or an action by the Commonwealth.

A proposed action may have environmental impacts going beyond those covered by the EPBC Act, but these do not have to be assessed or considered by the Commonwealth. However, they are likely to be assessed under State or Territory laws.

What are the different kinds of assessment available under the EPBC Act?

The Minister can assess a controlled action in one of the following ways:

• An accredited process, otherwise known as ‘one-off accreditation’. This is an environmental assessment carried out under another law of the Commonwealth or State, which ensures that the relevant impacts are assessed. The Minister receives a report on the outcome of the assessment process, so that he or she can make an informed approval decision.

If no bilateral agreement is in place (see below), this is the option most likely to be used by the Commonwealth Government in assessing an action where a State or Territory assessment is also required.

• Assessment on preliminary documentation involves the proponent seeking comment from the public on some preliminary information and providing that information to the Minister. The Minister can accept the document if he or she believes on reasonable grounds that it gives sufficient information to make an informed decision. The Secretary to the Department of Environment, Water, Heritage and the Arts must also prepare an assessment report for the Minister.

This type of assessment is likely to be chosen if the impacts of the proposal are expected to be few, or confined to a small area, or are well understood and can be confidently predicted.

• A public environment report (PER) is a process where the Minister provides guidelines to the proponent to prepare a draft PER. The draft is published for public comment, and the comments and a revised PER are provided to the Minister to assist in making a decision. The Secretary of the Department also provides an assessment report to the Minister.

This type of assessment is likely to be chosen if the impacts of the proposal are expected to raise a number of issues, but further information needs to be collected for an adequate assessment.

• An environmental impact statement (EIS) is a process where the Minister provides guidelines to the proponent to prepare a draft EIS. The draft is published for public comment, revised by the proponent and submitted to Department of Environment, Water, Heritage and the Arts. The Secretary of the Department must also provide an assessment report to the Minister.

This type of assessment is likely to be chosen if the impacts of the proposal are expected to raise a large number of issues or complex issues, and further information needs to be collected and analysed for an adequate assessment.

• A public inquiry is a process undertaken by a Commissioner. The Act provides for extensive powers for the Commissioner to hear evidence about the proposed action and its impacts. The Commissioner must report to the Minister, and the report must be published. A public inquiry can be used in conjunction with other assessment approaches such as a PER or EIS.

This type of assessment is likely to be chosen if the impacts of the proposal are expected to be large, or beyond the control of the proponent, or there is a need to provide a forum for more extensive public involvement in the assessment.

How does the Minister decide what type of assessment to use?

The EPBC Act sets out the information that the Minister must consider when making a decision as to the type of assessment required. This information includes:

• information provided by the person or organisation seeking the approval. The regulations under the EPBC Act specify what information must be provided to the Minister by the proponent, including:
  • details from any environmental assessment that has been, are being, or will be carried out under State or Territory laws;
  • details of any other environmental assessments that have been, is being, or will be carried out;
  • different options for the proposed action and feasible alternatives to the action;
  • how impacts from the action will be mitigated; and
  • details of any legal proceedings against the proponent in environmental or natural resource matters.
• any other information available to the Minister that he or she considers relevant.

If the controlled action involves a matter of national environmental significance and will occur in a State or Territory, the Commonwealth Environment Minister must invite the relevant Minister from that State or Territory to provide information on the appropriate kind of assessment, and must take this into account when deciding the type of assessment.

There is no opportunity for public comment on, or participation in, the decision of the Minister as to the type of assessment to be undertaken. The Minister has twenty business days to make the decision about the type of assessment. The twenty days begins either on the day that the decision was made that the proposal was a controlled action, or on the day that the proponent provides all the prescribed information, whichever is the later.

What is a “bilateral assessment agreement”?

The EPBC Act allows for the creation of ‘bilateral assessment agreements’. These are agreements between the Commonwealth Government and a State or Territory Government under which the Commonwealth can accept an environmental assessment done by the State or Territory if the assessment was done in accordance with the bilateral agreement. If this is the case, the Commonwealth does not need to do its own assessment.

What are the opportunities for public participation in the assessment process?

The different types of assessments carried out by the Commonwealth (assessment on preliminary documentation, public environment report, environmental impact statement, public inquiry), all provide for the public to have access to information about the proposed action, the opportunity to comment on the proposed action, and a direction for public comments to be incorporated in or attached to the final report to the Minister.

Information about proposals being assessed and the time limits for public comment are available on the Department of Environment and Heritage website: www.deh.gov.au

If the assessment is carried out by another Commonwealth department or a State or Territory government under an accredited process or an assessment bilateral agreement, there will also be opportunities for public comment and access to information about the proposed action.

The following guidelines are useful for making a submission about a proposal:

• include your name and address;
• make sure you read the assessment documents carefully and refer to these in your submission; and
• attach any evidence such as other studies that support your arguments.

2.2.9.3 Approval

How does the Minister decide whether or not to approve the action?

Within thirty days of receiving the results of an environmental assessment (or forty days from receiving the report of a public inquiry), the Minister must decide whether to grant an approval for the action. The Minister is also able to attach conditions to an approval.

In making the decision, the Minister must take into account:

• the impacts on:
• each relevant matter of national environmental significance, or
• the Commonwealth environment;
• economic and social matters;
• the principles of ecologically sustainable development, which include:
• the precautionary principle,
• the principle of intergenerational equity,
• the protection of biodiversity, and
• proper pricing and incentive mechanisms;
• any assessment report;
• any public environment report or environmental impact statement;
• any report of any public inquiry;
• any comments given to the Minister by another Commonwealth Minister; and
• the applicant’s history in relation to environmental matters.

In granting an approval or imposing conditions on an approval relating to World Heritage sites, Ramsar wetlands, threatened species or ecological communities or migratory species, the Minister cannot act inconsistently with Australia’s obligations under the relevant international conventions.

Similarly, the Minister must not grant an approval that is inconsistent with a recovery plan or a threat abatement plan. There are also direct prohibitions on approving nuclear power plants or enriching or reprocessing facilities.

If the Minister believes that he or she does not have enough information to make an informed decision, then he or she can ask the proponent for extra specified information. The time taken to provide the information is added on to the 30 day time limit for making a decision.

What kinds of conditions can the Minister impose?

The Minister has a wide discretion to impose conditions on an approval to protect the matter of national environmental significance or Commonwealth environment, or to mitigate or repair any damage that might be caused by the action.

The EPBC Act gives examples of the kinds of conditions that the Minister might impose, but the Minister is not limited to these. They include:

• provision of a bond, guarantee or cash deposit to cover any mitigation or repair work;
• periodic, independent environmental audits;
• preparing and implementing management plans;
• carrying out specified environmental monitoring or testing; or
• compliance with an industry standard or code.

Can an approval or conditions be varied or revoked?

The Minister may suspend or revoke an approval if the Minister believes that:

• a significant impact on a matter of national environmental significance has occurred because of a breach of an approval or a condition; or
• the impacts identified were inaccurate because of negligence or a deliberate attempt to leave out information.

Conditions to approvals can be revoked, varied, or added to if:

• any condition of the approval has been breached;
• there has been an impact on a matter of national environmental significance that was not identified in assessing the action; or
• if the person taking the action agrees to the change.

2.2.9.4 What is a bilateral approval agreement?

The EPBC Act allows for the creation of ‘bilateral approval agreements’ as well as the ‘bilateral assessment agreements’. These are agreements between the Commonwealth Government and a State or Territory Government under which the Commonwealth can accept an approval given by a State or Territory if the approval was given in accordance with the bilateral agreement.

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