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Last updated: 22 September 2008

3.1 Environment Protection and Biodiversity Conservation Act 1999

1 Overview

Responsibility for environmental matters in Australia is split between the States1 and the Commonwealth. Although primary responsibility rests with the States, over the past decade the Commonwealth has played an increasingly active role in environmental matters.

1.1 Summary of Commonwealth environmental responsibilities

The main Commonwealth environmental law is the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).2 A person planning an activity involving a matter regulated by the EPBC Act may need to obtain approval from the Environment Minister under the EPBC Act.

Under the EPBC Act, the Commonwealth is responsible for regulating the following matters:

1. World Heritage sites (see Fact Sheet 3.3);
2. National Heritage places (see Fact Sheet 3.3);
3. Nationally protected wetlands (Ramsar wetlands);
4. Nationally listed threatened species and ecological communities;
5. Listed migratory species;
6. Nuclear actions (including uranium mines);
7. Commonwealth marine areas;
8. Land owned by the Commonwealth; and
9. Activities by Commonwealth agencies.

There is a separate Fact Sheet dealing with heritage matters under Commonwealth law (see Fact Sheet 3.3).

This Fact Sheet explains how the EPBC Act works.

2 What kinds of activities require Commonwealth approval?

Under the EPBC Act, a person who wishes to carry out a “controlled action” (ie an action which is “controlled” by the EPBC Act) must first obtain an approval from the Environment Minister. The Environment Minister may also decide that an approval is not needed for a particular action.4

It is an offence to carry out a controlled action without approval.5

2.1 What is a “controlled action”?

A “controlled action”6 is an action which is likely7 to have a significant impact on:

• a “matter of national environmental significance” (there are 7 of these);8 or
• Commonwealth land.9

It also includes any action by the Commonwealth (or a Commonwealth agency) which is likely to have a significant impact on the environment.10 In this way, the EPBC Act regulates the environmental impacts of the activities of the Commonwealth itself.

2.2 What is an “action”?

An “action” is defined broadly and includes a project, a development, an undertaking, an activity, or an alteration to one of these things.11

Examples of actions12 might include:

• Construction, alteration and demolition of buildings and infrastructure
• Mineral and petroleum resource exploration
• Industrial processes
• Storage or transport of hazardous waste
• Extraction and diversion of water
• Vegetation clearance.

The following things are not actions:

• a decision by a State or Commonwealth government body to grant an approval (authorisation) for another person to take an action;13
• a grant of funding.14

2.3 What is a “matter of national environmental significance”?

There are currently seven matters of national environmental significance listed (triggers) under the EPBC Act.

These are:

• World Heritage sites
• National Heritage places
• Nationally protected wetlands (Ramsar wetlands);
• Nationally listed threatened species and ecological communities;
• Listed migratory bird species;
• Nuclear activities (including uranium mines); and
• Commonwealth marine areas.

Other matters of national environmental significance can be added, by regulation, without the agreement of the States, although the States must be consulted.15

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.16

Each World Heritage property has its own world heritage values.17 It is the values, and not the site itself, which are protected. An action is likely to have a “significant impact” if there is a real chance or possibility that it will cause one or more of the World Heritage values to be lost, degraded, damaged or notably altered.18

Activities outside the World Heritage property which nevertheless affect the World Heritage values may still need approval (see Case Study: Protection of Flying Foxes in Queensland - Booth v Bosworth).

Sites on the World Heritage List include the Greater Blue Mountains Area, Fraser Island, the Sydney Opera House, and the Great Barrier Reef.

For more information:

• See the Environment Department's EPBC Act website http://www.environment.gov.au which provides an interactive map and detail for each World Heritage property
• To find out whether there are any World Heritage properties in your area of interest, you can conduct an online Protected Matters Search on the Commonwealth Environment Department website. http://www.environment.gov.au/erin/ert/epbc/index.html
• See Fact Sheet 3.2 on Commonwealth Heritage protection law.

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 Heritage place without approval.19

A National Heritage place is a place which is on the National Heritage List.20 The Environment Minister decides, in consultation with the Australian Heritage Council, whether to include a place on the List.21 The heritage values of each National Heritage place (eg natural, indigenous or historic values) are shown on the List.22 It is the heritage values, rather than the site itself, which are protected.

• Click here to see the full World Heritage List http://www.environment.gov.au/heritage/places/national/index.html.

For more information about listing and protection of National Heritage places, see Fact Sheet 3.2 – Commonwealth Heritage protection.

To find out whether there are any National Heritage places in your area of interest, you can conduct an online Protected Matters Search on the Commonwealth Environment Department website.

• Click here to http://www.environment.gov.au/erin/ert/epbc/index.html to begin a search.

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 declared Ramsar wetland without an approval.23

A declared Ramsar wetland is a wetland which has been listed by the Commonwealth under the Convention on Wetlands of International Importance 1971, or declared by the Minister to be a Ramsar wetland.24

Examples of activities which might have a significant impact include: clearing part of a wetland; changing the volume, timing, duration or frequency of water flows; allowing salinity or pollutants onto the wetland; or allowing invasive species in the wetland.25

Activities outside a Ramsar wetland which affect the wetland, such as an upstream water diversion or the clearing of vegetation, could still trigger the need for approval even though they do not take place on the wetland itself.

• Click here to see a full list of Ramsar wetlands in Australia. http://www.environment.gov.au/water/environmental/wetlands/ramsar/australia.html

To find out whether there are any Ramsar wetlands in your area of interest, you can conduct an online Protected Matters Search on the Commonwealth Environment Department website.

• Click http://www.environment.gov.au/erin/ert/epbc/index.html to begin a search.

A person must not take an action that has, will have or is likely to have a significant impact upon a nationally listed threatened species or endangered ecological community without an approval.26

The kind of ‘threatened species' which are protected are those species which are listed as extinct in the wild, critically endangered, endangered or vulnerable.27 Some threatened species are also listed as migratory species under the EPBC Act.

The ‘endangered ecological communities' which are protected are those which are listed as critically endangered or endangered, but not those listed as vulnerable.28

• Current lists of endangered species and ecological communities under the EPBC Act http://www.environment.gov.au/cgi-bin/sprat/public/sprat.pl.
• Find out whether there are likely to be any threatened species or ecological communities in your area. You can search using a map, by entering coordinates, or by Local Government Area. http://www.environment.gov.au/erin/ert/epbc/index.html

A person must not take an action that has, will have or is likely to have a significant impact on a listed migratory species.29

Migratory species are those which migrate to, or pass through or over, Australian territory on their annual migrations. Some migratory species are also listed as threatened species.

Examples of migratory species include:

• Birds – albatrosses, terns, plovers and egrets
• Mammal – whales, dugongs
• Reptiles – some crocodiles.

The Minister must publish the list of migratory species.30 The list can only contain those species which are protected under international agreements.31

Examples of a “significant impact” include an activity which destroys or isolates an area of migratory bird habitat, or diverts water which has the effect of altering the hydrological cycles of important habitat.32

To find out whether there are likely to be any listed migratory species in your area of interest, you can conduct an online Protected Matters Search on the Commonwealth Environment Department website http://www.environment.gov.au/erin/ert/epbc/index.html.

A person must not take a nuclear action that has, will have, or is likely to have a significant impact on the environment without approval.33

A nuclear action includes, but is not limited to:34

• Establishing or significantly modifying a nuclear reactor;
• Transporting spent nuclear fuel or radioactive waste;
• Establishing a large-scale disposal facility for nuclear waste;35 and
• Mining or milling uranium ore.36

Note: the Minister is expressly prohibited from approving a nuclear power plant, enrichment plant or reprocessing facility.37

A person must not take an action in a Commonwealth marine area that has, will have, or is likely to have a significant impact on the environment without approval.38

The Commonwealth marine area39 includes waters:

• Between three nautical miles and 200 nautical miles of Australia's coastline (exclusive economic zone); and
• Over the continental shelf,40

excluding State or Northern Territory waters (territorial waters).41

The marine area includes the seabed under those waters, and the airspace over the waters.42

Actions which take place outside a Commonwealth marine area but which still have a significant impact on the environment within the marine area may still require approval.43

Examples of actions which might require approval include:44

• Introducing a pest species in the Commonwealth marine area;
• Actions affecting the breeding, feeding or migration behaviour of a population of marine species or whales; and
• Introducing persistent organic chemicals, heavy metals or other harmful chemicals.

To find out whether your area of interest is in a Commonwealth marine area you can conduct a Protected Matters Search on the Commonwealth's Environment Department website http://www.environment.gov.au/erin/ert/epbc/index.html.

2.4 Activities on Commonwealth land

A person must not take an action on Commonwealth land that has, will have, or is likely to have a significant impact on the environment without an approval.45

An approval is also required for actions taken outside Commonwealth land if the action will still impact on Commonwealth land.46

“Commonwealth land” is:

• land owned by the Commonwealth (or a Commonwealth agency)
• land held under lease by the Commonwealth (or a Commonwealth agency)
• land in an external Territory or Jervis Bay.

It includes the airspace over these areas,47 but does not include a Commonwealth marine area.48

The Commonwealth has released detailed Guidelines to assist people who propose to take an action which may affect Commonwealth land to decide whether they should refer the matter to the Environment Department.49

2.5 Activities by the Commonwealth (or Commonwealth agencies)

The Commonwealth (or a Commonwealth agency) must not take an action that has, will have, or is likely to have a significant impact on the environment without an approval.50

The provision applies to Commonwealth actions both inside and outside Australia.51 Similarly, it is the environment both inside and outside Australia which is protected.52

Note that certain exceptions apply.53

A Commonwealth agency54 includes:

• A Commonwealth Minister,
• A body corporate established by the Commonwealth or a Minister,
• A company owned or controlled by the Commonwealth, and
• A person holding office or appointed under a Commonwealth law.

The Commonwealth has issued detailed Guidelines to assist representatives of Commonwealth agencies who propose to take an action that may affect the environment anywhere in the world to decide whether they should refer the action to the Minister.55

2.6 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 approval.56

However, the Commonwealth has published two sets of Guidelines to assist developers, government agencies and the community in deciding whether a proposed action will have or is likely to have a significant impact.57

Click here to see the Guidelines for:

• Matters of National Environmental Significance;58 http://www.environment.gov.au/epbc/publications/nes-guidelines.html
• Actions affecting Commonwealth land, and actions by Commonwealth agencies.59 http://www.environment.gov.au/epbc/publications/commonwealth-guidelines.html

The Commonwealth has also issued additional Guidelines under the EPBC Act on:

• The interaction between offshore seismic exploration and whales ;60 and
• Offshore Aquaculture.61

Factors to take into account when deciding whether there is likely to be a significant impact include:

• The sensitivity of the environment which will be impacted;
• All on-site and off-site impacts;
• The total impact over the entire geographic area; and
• Existing levels of impact from other sources.

The precautionary principle is also relevant in determining whether an action is likely to have a significant impact. The precautionary principle only applies if the likely impacts are serious or irreversible damage. If they are, then a lack of scientific certainty about the potential impacts of the action will not itself justify a decision that the action is not likely to have a significant impact.62

2.7 Exemptions from the need for approval

In some cases, an action will not require approval from the Commonwealth Environment Minister despite triggering the EPBC Act.63

An action will not require approval if it falls within one of the exemptions described below.

If an action:

• was already authorised before 16 July 2000;
• did not need any further authorisation as at 15 July 2000; and
• has remained within the scope of the authorisation,

then it will not need approval under the EPBC Act (because it had prior authorisation).64

Lawful continuing uses which commenced before 16 July 2000 are also exempt.65

For more information on the prior authorisation and continuing use exemptions, see the Practice Guide 1 on the Environment Department's website.66

The EPBC Act allows the Commonwealth to enter into agreements with the States which allow a State approval to be recognised for the purposes of the EPBC Act.67 In other words, the State approval process replaces the Commonwealth process. These agreements are called “approval bilateral agreements” (which are different to “assessment bilateral agreements”).

If an action has been approved in accordance with an approval bilateral agreement, then it will not require approval from the Commonwealth Environment Minister.

In NSW, there is currently an approval bilateral agreement between the Commonwealth and NSW regarding the Sydney Opera House.68

The Minister can declare that actions taken in accordance with accredited management plans,69 bioregional plans,70 or conservation agreements71 do not require approval.

Forestry operations which are carried out in accordance with a regional forest agreement as defined in the Regional Forests Agreement Act 2002 (Cth) do not require approval.72

However, approval will still be required if the forestry operation is:73

• in a property on the World Heritage List
• on a Ramsar wetland, or
• only incidental to another action (ie for which the primary purpose is not forestry).

3 Referring a matter to the Environment Minister

If a controlled action will have, or is likely to have, a significant impact on a matter of national environmental significance, then it must be referred to the Environment Minister for assessment and approval before the activity begins.75

Failure to refer a matter caught by the EPBC Act (see above) and to obtain approval will mean that the action is unlawful and the person or organisation carrying out the activity may be prosecuted, fined76 or an injunction may be granted to stop the action.77

3.1 How is a matter referred to the Minister?

There are 4 ways that a proposed action can be referred to the Environment Minister under the EPBC Act.78 These are described below.

The person or organisation proposing to take an action can refer their proposal to the Environment Minister for a decision as to whether the proposed action is a “controlled action” and therefore requires assessment and approval.79

They can still refer a matter even if they think that their activity is not a controlled action, or if they are unsure.80 In this way, the proponent can obtain a definitive answer as to whether their activity requires assessment and approval under the EPBC Act or not.

Where a State Government or local council is the proponent, they can refer their own actions to the Minister.81

A State or Territory Government or agency that is aware of a proposal and has some administrative responsibilities regarding the proposed action can refer the matter to the Environment Minister.82

For example, State Government departments which deal with planning, land and water or national parks will often have some role to play in relation to an activity. A local council can also make a referral if it has some role to play in approving the action, eg by granting development consent.83

If the Environment Minister believes that somebody is about to take a controlled action, the Minister can request the person or the State (or State agency) responsible to refer the proposal to him or her.84 If no referral is made within the set time period, the Minister can deem the action to be referred.85

A Commonwealth agency86 that becomes aware of a proposal can refer the matter to the Environment Minister for a decision as to whether the proposal is a controlled action if the agency has some administrative role.87

3.2 Can members of the public refer proposals?

No, a proposal can only be formally referred to the Minister under the EPBC Act by one of the 4 processes listed above.

If you want a proposal to be referred to the Environment Minister for a decision as to whether assessment and approval is required, you could do the following things:

• write to the government bodies listed above asking them to refer the proposal to the Environment Minister
• write to the Environment Minister and ask the Minister to request that the proponent to refer the matter back to the Minister (under EPBC Act, s 70)
• report the proposal to the Compliance and Enforcement Branch of the Environment Department (see text box below for more details).

It is an offence to take an action if a referral has been made (and the proponent knows about the referral) but a decision is still pending.88

4 Minister decides whether action needs approval

4.1 Environment Minister decides

If a proposal is referred, it is the Environment Minister91 who decides whether a proposed activity is a “controlled action”.92

If the Minister decides that a proposal is a “controlled action”, it will need to be assessed and approved by the Minister before it can go ahead.

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.93 Certain offences are punishable by up to 7 years imprisonment.94

4.2 How does the Minister decide whether something is a “controlled action”?

The Environment Minister must make a decision within 20 days of receiving a referral,95 unless further information is requested, in which case the clock stops.96

Following an amendment to the EPBC Act in 2006, the Environment Minister can now make a quick decision that the environmental impacts of a proposed action are clearly unacceptable, without having to decide whether something is a “controlled action”.23

In deciding whether an action needs approval, the Minister must take into account the precautionary principle.98 The precautionary principle provides that, if a proposal involves a threat of serious or irreversible environmental harm, then lack of scientific certainty about the potential impacts of that proposal should not be used as a reason for postponing preventative measures:99 in plain words, the Minister should err on the side of caution.

If the Minister decides that a proposal is not a “controlled action” and therefore no approval is required, the person carrying out the activity cannot be prosecuted for carrying out the work, even if it does end up significantly affecting a matter of national environmental significance or Commonwealth land.100

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

It is important to comment at this stage because if the Minister decides that the proposal is not a “controlled action”, there will be no environmental impact assessment at the Commonwealth level.

When making your comments you should:

• Read the referral documents carefully and point out any missing or incorrect information (eg any listed threatened species not mentioned, any wrong hydrological information);
• Attach any evidence or reports that you have which support your comments (eg lists of migratory birds or threatened species spotted in the area);
• Make reference, if possible, to the things set out in the Guidelines on significant impact;101 and
• Comment on the type of assessment that you think should follow.

5 Assessment

5.1 Minister must choose type of assessment

If the Environment Minister decides that a proposal is a “controlled action”, then the next step is for the Minister to choose what kind of environmental impact assessment is required.102 This decision must be made within 20 business days of receiving the referral.103

The Minister must choose one of the following assessment methods:104

• An accredited assessment process;105
• An assessment on the referral information only;106
• An assessment on preliminary documentation;107
• A public environment report (PER);108
• An environmental impact statement (EIS);109 or
• A public inquiry.110

There are two exceptions to this process:

• where the Commonwealth has signed a bilateral assessment agreement with a State.111 A bilateral assessment agreement exists with NSW (see below).
• if there is a Ministerial declaration in force exempting the action.112

The Minister's decision about which approach is to be used must be published on the Internet.113

• view the recent public notices at http://www.environment.gov.au/epbc/notices/index.html.

5.2 Are all environmental impacts assessed?

No. In deciding what sort of assessment is required (and whether to approve an action), the Minister can only consider those environmental impacts which are caught by the EPBC Act, ie those which relate to a matter of national environmental significance, Commonwealth land or an action by the Commonwealth.114

Environmental impacts which are not covered by the EPBC Act do not have to be assessed or considered by the Commonwealth Environment Minister, although they may require assessment under State law.

5.3 Opportunities for public comment

There is no opportunity for the public to comment on, or participate in, the Minister's decision about the type of assessment to be undertaken. However, the public will usually have an opportunity to comment on the draft assessment documentation before the Minister makes a decision about whether to approve a proposal.

For example, the following types of assessment must be published on the Internet115 and the public given an opportunity to comment within a fixed time limit:

• Assessment on referral information116
• Assessment on preliminary documentation (if so directed by Minister)117
• Public environment report118
• Environmental Impact Statement.119

5.4 Bilateral (assessment) agreements

The EPBC Act allows for the Commonwealth to enter into bilateral (assessment) agreements with each State under which the Commonwealth can accept an environmental assessment done by the State if the assessment was done in accordance with the bilateral agreement.120 Where this occurs, the assessment under State law replaces the need for assessment under the EPBC Act. After assessment, the proposed action still requires approval from the Commonwealth Environment Minister.

The purpose of bilateral agreements is to reduce duplication of environmental assessment between the Commonwealth and States.

On 18 January 2007, the Commonwealth and NSW entered into a bilateral (assessment) agreement for a term of 5 years.

Controlled actions which take place in NSW and which are assessed in the manner specified by the Agreement do not require assessment under the EPBC Act.

For example, an environmental impact statement might be prepared under the Environmental Planning and Assessment Act 1979 (NSW), or a species impact statement under the Threatened Species Conservation Act 1995 might be relied upon, in addition to any additional public comment and notification provisions in the Agreement.

6 Approvals

6.1 What must the Environment Minister consider?

The Environment Minister decides whether to approve a controlled action.121

In making the decision, the Minister must take into account:122

• The impacts on each matter of national environmental significance;
• Economic and social matters;
• The principles of ecologically sustainable development (see text box below);
• The environmental assessment material and any subsequent reports;
• Public comments;123 and
• Comments from other Ministers.

The Minister cannot act inconsistently with Australia's obligations under the relevant international conventions when granting an approval relating to World Heritage sites,124 National Heritage places,125 Ramsar wetlands,126 threatened species or ecological communities127 or migratory species.128 Similarly, the Minister must not grant an approval that is inconsistent with a recovery plan or a threat abatement plan.129

6.2 Conditions of approval

Approvals are often granted subject to a detailed set of conditions.132

Examples of the kinds of conditions that the Minister might impose133 include:

• conditions requiring a financial contribution to a person or group seeking to protect a matter protected by the EPBC Act,134
• a bond or guarantee to meet any costs in repairing damage to the site, and
• ongoing monitoring.

Conditions are legally enforceable.135

7 How is the EPBC Act enforced?

The EPBC Act contains a broad range of mechanisms to investigate and enforce the Act.

For example:

• the Minister can order an audit to investigate any suspected breach;136
• the Federal Court can grant an injunction stopping any further activity or work on a site.137 An injunction can be made on an urgent basis (interim injunction);138
• the Federal Court can impose significant civil penalties (fines) and criminal penalties (fines and imprisonment) for individuals and corporations who breach the Act;139
• the Minister or Federal Court can order an offender to fix any environmental damage (remediation orders);140
• Power to publicise a breach of the Act.141

7.1 Who can bring legal proceedings?

7.1.1 Injunctions

7.1.3 What to do if you think there might be a breach of the Act

If you are concerned about a potential breach of the EPBC Act, you could:

• Call the Environmental Defender's Office and seek legal advice about your options (ph (02) 9262 6989 or 1300 369 791 if you are in the Northern Rivers region.
• Call the Commonwealth Environment Department and ask them to investigate the breach. Click here for the Department's contact details http://www.environment.gov.au/epbc/breach.html.

The following people can apply to the Federal Court for an injunction to enforce the EPBC Act:

• The Environment Minister142 (this is the person most likely to bring proceedings)
• An individual whose interests are affected, or who has been engaged in activities to protect the environment during the previous two years (called an “interested person”),143 or
• An organisation (incorporated in Australia) whose interests are affected, or which, during the previous 2 years, has had the protection of the environment as one of its objects and purposes and which has been engaged in environmental protection.144

7.1.2 Challenging decisions made under the Act

You may wish to challenge a decision made under the EPBC Act, for example, a decision by the Environment Minister that something is not a controlled action, or a decision to grant an approval.

The EPBC Act allows the following people (called an “aggrieved person”) to bring legal proceedings (usually in the Federal Court) challenging a decision made under the EPBC Act:145

• An individual who lives in Australia and who has been engaged in environmental protection during the previous two years;
• An organisation or association whose objects and purposes include environmental protection and which has been actively engaged in environmental protection during the previous 2 years.

 

1. A reference in this Fact Sheet to a “State” includes a “Territory”.
2. There are also extensive regulations made under the EPBC Act: see the Environment Protection and Biodiversity Conservation Regulations 2000.
3. The EPBC Act has an extensive list of matters which the Minister is required to publish on the Internet so that the public can track the progress of applications: s 515A, and s 170A.
4. EPCC Act, sections 33 – 36, and sections 75 – 77A.
5. Note: the prohibited action may either be a criminal offence or incur a civil penalty: see EPBC Act, (World Heritage) sections 12(1), 15A; National Heritage sections 15B, 15C; (Ramsar Wetlands) sections 16, 17B; (Threatened species) sections 18, 18A; (Migratory species) sections 20, 20A; (Nuclear actions) sections 21, 22A; (Marine environment) sections 23, 24A.
6. EPBC Act defines a “controlled action”, s 67.
7. The term “likely” is not defined in the EPBC Act. However it is described in the Guidelines as follows: “To be ‘likely', it is not necessary for a significant impact to have a greater than 50% chance of happening; it is sufficient if a significant impact on the environment is a real or not remote chance or possibility”: EPBC Act, Policy Statement 1.1, Significant Impact Guidelines, Matters of National Environmental Significance (May 2006), p 4.
8. These are listed in the EPBC Act, Part 3, Division 1, sections 12 – 24A.
9. See EPBC Act, sections 26 – 27A.
10. See EPBC Act, s 28.
11. See definition of “action” in EPBC Act, s 523.
12. See EPBC Act, Policy Statement 1.1, Significant Impact Guidelines, Matters of National Environmental Significance (May 2006) for more examples and information on “significant impacts”.
13. EPBC Act, s 524 defines things that are not “actions”.
14. EPBC Act, s 524A.
15. EPBC Act, s 25. As at 3 September 2008, no new matters of national environmental significance have been added by regulation. Regulations can also provide that a specific action is to be treated as a “controlled action, EPBC Act, s 25A.
16. EPBC Act, s 12 (1).
17. EPBC Act, s 12 (3). The world heritage values for each site are described on the Commonwealth Government's EPBC Act website at http://www.environment.gov.au/heritage/places/world/index.html.
18. See EPBC Act Policy Statement 1.1, Significant Impact Guidelines, Matters of National Environmental Significance (May 2006), pages 17 - 19, which provides guidance on determining whether an action is likely to have a significant impact [the Guidelines can be viewed at http://www.environment.gov.au/epbc/publications/nes-guidelines.html].
19. EPBC Act, s 15B.
20. EPBC Act, s 324C
21. EPBC Act, s 324C – 324JJ. Emergency listings are possible: EPBC Act, s 324JK – 324JQ. The EPBC Regulations 2000 prescribe the criteria which must be addressed in each listing: Reg 10.01A.
22. EPBC Act, s 324D(2).
23. EPBC Act, s 16 (1) and 17B (Offences relating to Ramsar wetlands). EPBC Act Policy Statement 1.1, Significant Impact Guidelines, May 2006, page 15, provides guidance as to what is a “significant impact” on a Ramsar wetland.
24. EPBC Act, sections 17 and 17A set out the procedure for declaring Ramsar wetlands. The Convention was signed in the small town of Ramsar, Iran, in 1971, and is thus known as the Ramsar Convention. EPBC Act, s 335 allows regulations to set out principles for the management of Australian Ramsar wetlands. For more information on the Ramsar Convention in Australia, click here: http://www.environment.gov.au/water/environmental/wetlands/ramsar/index.html].
25. See EPBC Act Policy Statement 1.1, Significant Impact Guidelines (May 2006), p 15.
26. EPBC Act, s 18 and 18A (Offences relating to threatened species, etc). EPBC Act, s 19(4) and s 517A allows the Minister to grant an exemption for conservation activities.
27. EPBC Act, s 18(1) to (4), s 178 and 179. Section 178(1)(f) allows the Minister to list ‘conservation dependent' species, but these are not protected under the approval and offence provisions: s 18A(4). Sections 178 – 194T set out the procedures for listing threatened species and ecological communities.
28. EPBC Act, sections 18(5) and (6), 181 and 182.
29. EPBC Act, s 20; and s 20A (Offences relating to listed migratory species). Sections 20B and 517A allow the Minister to grant an exemption for conservation activities.
30. EPBC Act, s 209(1).
31. EPBC Act, s 209(3). The international agreements are: the China – Australia Migratory Bird Agreement; (CAMBA); the Japan – Australia Migratory Bird Agreement (JAMBA);  the Convention on the Conservation of Migratory Species of Wild Animals ( Bonn Convention); and any other native species listed under an international agreement for the conservation of migratory species approved by the Minister. To see the text of these agreements, http://www.environment.gov.au/epbc/protect/migratory.htmlclick here.
32. More detail on how a “significant impact” is determined can be found in the EPBC Act Policy Statement 1.1, Significant Impact Guidelines, p 14, (May 2006).
33. EPBC Act, s 21, and 22 A (Offences relating to nuclear actions).
34. EPBC Act, s 22. See also EPBC Regulations 2000, clauses 2.01 and 2.02 which specify minimum radioactive levels.
35. See EPBC Regulations 2000, clause 2.03 which specifies minimum radioactive levels for large-scale disposal facilities.
36. Further examples of the significant impact criteria for nuclear actions can be found in the EPBC Act Policy Statement 1.1, Significant Impact Guidelines, p 24 (May 2006).
37. EPBC Act, s 140 A.
38. EPBC Act, s 23, and s 24 A (Offences relating to marine areas).
39. A “Commonwealth marine area” is defined in EPBC Act, s 24.
40. EPBC Act, s 24 (d).
41. Waters within 3 nautical miles of the coast are generally State waters (territorial waters): EPBC Act, s 24(a) and (d).
42. EPBC Act, s 24.
43. EPBC Act, s 23(2), and EPBC Act Policy Statement 1.1, Significant Impact Guidelines, p 16 (May 2006).
44. For more detail on the significant impact criteria in Commonwealth marine areas, see EPBC Act Policy Statement 1.1, Significant Impact Guidelines, p 16 (May 2006).
45. EPBC Act, s 26, and s 27A (Offences relating to Commonwealth land)
46. EPBC Act, s 26 (2), and s 27A (3) and (4) (0ffences).
47. EPBC Act, s 525 (1).
48. EPBC Act, s 27.
49. EPBC Act Policy Statement 1.2, Significant Impact Guidelines, Actions on, or impacting upon, Commonwealth land, and actions by Commonwealth agencies, May 2006. The guidelines encourage people to carry out a step-by-step self-assessment of their proposal.
50. EPBC Act, s 28 (1) and (2).
51. EPBC Act, s 28 (1).
52. EPBC Act, s 28 (1).
53. EPBC Act, s 28 (2), (3) and (4). These exceptions include actions which are declared to be for Australia's defence or security, dealing with a national emergency, or actions which are covered by a general Ministerial declaration.
54. EPBC Act, s 528 (Definitions).
55. EPBC Act Policy Statement 1.2, Significant Impact Guidelines, Actions on, or impacting upon, Commonwealth land, and actions by Commonwealth agencies, May 2006. The guidelines encourage people to carry out a step-by-step self-assessment of their proposal.
56. The term “impact” is defined under the EPBC Act at s 527E to include the direct consequences of an action, and also indirect consequences if the action was a substantial cause of the event or circumstance.
57. Note that the EPBC Act Administrative Guidelines on Significance made in July 2000 have been replaced by the EPBC Act Policy Statement 1.1, Significant Impact Guidelines, Matters of National Environmental Significance, May 2006; and EPBC Act Policy Statement 1.2, Significant Impact Guidelines, Actions on, or impacting upon, Commonwealth land, and actions by Commonwealth agencies, May 2006.
58. EPBC Act Policy Statement 1.1, Significant Impact Guidelines, Matters of National Environmental Significance, May 2006.
59. EPBC Act Policy Statement 1.2, Significant Impact Guidelines, Actions on, or impacting upon, Commonwealth land, and actions by Commonwealth agencies, May 2006.
60. EPBC Act, Policy Statement 2.1, Industry Guidelines – Interaction between offshore seismic exploration and whales, May 2007. Click here to see a copy: [http://www.environment.gov.au/epbc/publications/seismic.html]
61. EPBC Act, Policy Statement 2.2, Industry Guidelines – Offshore Aquaculture, August 2006. Click here to see a copy: [http://www.environment.gov.au/epbc/publications/aquaculture-policy.html]
62. EPBC Act, s 3(1)(b) (Objects), s 3A(b) (Principles of ecologically sustainable development); and EPBC Act, Policy Statement 1.1, Significant Impact Guidelines, Matters of National Environmental Significance (May 2006), pages 4 and 8.
63. See EPBC Act, Part 4, ss 29 – 43B which describe the cases in which environmental approvals are not needed.
64. EPBC Act, s 43A.
65. EPBC Act, s 43B.
66. See the Practice Guide 1 on the Environment Department's website entitled Prior Authorisation and Continuing Use Exemptions – Sections 43A and 43B (January 2005) by clicking here [ http://www.environment.gov.au/epbc/publications/exemptions.html#appendix-1].
67. EPBC Act, Part 4, Division 1, ss 29 – 31 sets out the exemption; and EPBC Act, Chapter 3 sets out the process for making bilateral agreements.
68. Sydney Opera House Agreement between the Australian Government and the State of NSW (December 2005). To see a copy of the Agreement, click here [http://www.environment.gov.au/epbc/assessments/bilateral/sydneyoperahouse.html]
69. EPBC Act, Part 4, Division 2 (Ministerial declarations and accredited management plans), s 32 – 36A.
70. EPBC Act, Part 4, Division 3 (Actions covered by Ministerial declarations and bioregional plans), s 37 – 37 J.
71. EPBC Act, Part 4, Division 3 (Actions covered by conservation agreements), s 37M.
72. EPBC Act, Part 4, Division 4, ss 38 – 42.
73. EPBC Act, s 42.
74. EPBC Act, s 43.
75. EPBC Act, s 67A.
76. The EPBC Act provides for civil penalties: ss 481 – 485.
77. EPBC Act, ss 475 – 480.
78. EPBC Act, s 72 sets out the form and content of referral; the EPBC Regulations 2000 set out further details that must be included in referrals: cl 4.01 – 4.03, and Sch 2.
79. EPBC Act, s 68.
80. EPBC Act, s 68 (2) and (3).
81. EPBC Act, s 68.
82. EPBC Act, s 69.
83. See the definition of “agency” of a State under the EPBC Act, s 528.
84. EPBC Act, s 70.
85. EPBC Act, s 70(3).
86. EPBC Act, s 528 defines “Commonwealth agency”.
87. EPBC Act, s 71.
88. EPBC Act, s 74AA.
89. EPBC Act, s 74(3), and s 170A.
90. EPBC Act, s 74(3)(b), and s 75(1A)(b).
91. As at September 2008, the Commonwealth Environment Minister is the Minister for the Environment, Heritage and the Arts.
92. EPBC Act, s 75.
93. EPBC Act, s 12(1) (World Heritage), s 15B (National Heritage), s 16 (Ramsar wetlands), s 18 (Threatened species), s 20(1) (Migratory species), s 21 (Nuclear actions), s 23 (Marine environment), s 26 (Actions on Commonwealth land) max penalty $110, 000, s 27B (Commonwealth Heritage places overseas) (max penalty $110 000), s 28 (Commonwealth agencies) (max penalty $110, 000). Penalty units are defined in the Crimes Act 1914, s 4AA. At the time of writing (Sept 2008), a penalty unit is $110.
94. See, for example, s 15A(3) (World Heritage), s 15C(13) (National Heritage places), s 17B(3) (Ramsar wetlands), s 18A(3) (Threatened species), s 20A(3) (Migratory species), s 22A(7) (Nuclear actions), s 24A(7) (Marine areas), s 27A(5) (Commonwealth land)(max penalty 2 years), s 27C(3)(Commonwealth Heritage places overseas) (max penalty 2 years).
95. EPBC Act, 75(5).
96. EPBC Act, s 75(6).
97. EPBC Act, Part 7, Division 1A, ss 74B – 74D.
98. EPBC Act, s 391.
99. See the definition in the EPBC Act, s 391(2).
100. Where the Minister has made a decision that an action is not a “controlled action”, the prohibition and offence provisions do not apply: see EPBC Act, s 12(2)(c), s 15A(4)(c), s 15B(8)(c), s 15C(16)(c), s 16(2)(c), s 17B(4)(c),s 19(3)(b), s 20(2)(c), s 20A(4)(c), s 21(4)(c), s 22A(8)(c), s 23(4)(c), s 24A(8)(c), s 25(2)(c), s 26(3)(d), s 27A(6)(c), s 27C(5)(c), and s 28(2)(d).
101. EPBC Act Policy Statement 1.1, Significant Impact Guidelines, Matters of National Environmental Significance, May 2006; and EPBC Act Policy Statement 1.2, Significant Impact Guidelines, Actions on, or impacting upon, Commonwealth land, and actions by Commonwealth agencies, May 2006
102. EPBC Act, Part 8, Division 3, s 87.
103. EPBC Act, s 88 (1), and s 156 (General rules about time limits).
104. EPBC Act, s 87 sets out the process which the Minister must follow in deciding which level of assessment is required.
105. EPBC Act, s 87 (4), and s 91(2). This is otherwise known as “one-off accreditation”. The assessment is carried out under another law of the Commonwealth or State, and a report is given to the Minister.
106. EPBC Act, s 92 – 93, and EPBC Regulations 2000, cl 5.03A.
107. EPBC Act, s 94 – 95C. This type of assessment is usually 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.
108. EPBC Act, s 96 – 100, and EPBC Regulations 2000, cl 5.04. This type of assessment is likely to be chosen if the proposal raises a small number of issues which require further information to ensure adequate assessment.
109. EPBC Act, s 101 – 105, and EPBC Regulations 2000, cl 5.04. An EIS will be required if the proposal raises a large number of issues or complex matters, and the Minister requires further detailed information.
110. EPBC Act, s 106 – 129. A public inquiry can be used in conjunction with a PER or EIS (s 90). It provides a forum for more extensive public involvement in the assessment where the impacts are expected to be extensive.
111. EPBC Act, s 83. In this case, the Commonwealth environmental assessment will be replaced by the assessment which is done under State law.
112. EPBC Act, s 84.
113. EPBC Act, s 170A(d).
114. These are called the “relevant impacts” of the proposed action: EPBC Act, s 82 and 87.
115. EPBC Act, s 170A, and 515A.
116. EPBC Act, s 93(3).
117. EPBC Act, s 95 and 96.
118. EPBC Act, s 98.
119. EPBC Act, s 103.
120. EPBC Act, Part 5, ss 45 – 65A.
121. EPBC Act, Part 9 deals with approvals, and s 133 (Grant of approval).
122. EPBC Act, s 136.
123. EPBC Act, s 136(2)(f), but only those public comments made in response to an invitation under s 131A..
124. EPBC Act, s 137. The Minister must also not act inconsistently with the Australian World Heritage management principles or a management plan (s 137(b) and (c)).
125. EPBC Act 137 A. The Minister must also not act inconsistently with a management plan (s 137A(c)).
126. EPBC Act, s 138.
127. EPBC Act, s 139. The Minister must also have regard to any approved conservation advice (s 139(2)).
128. EPBC Act, s 140.
129. EPBC Act, s 139(1)(b).
130. EPBC Act, s 3A.
131. EPBC Act, s 391 sets out a table of decisions in which the precautionary principle must be considered.
132. EPBC Act, s 134.
133. EPBC Act, s 134(3) sets out a detailed list of examples of conditions that can be attached.
134. EPBC Act, 134(3)(aa) and (ab).
135. EPBC Act, s 142. It is an offence to breach a condition: s 142A, and 142B.
136. EPBC Act, Division 12, ss 458 – 462. These are called directed environmental audits.
137. EPBC Act, Division 14 (Injunctions), s 475 – 480.
138. EPBC Act, s 475(5).
139. Civil penalties: for individuals up to $550,000, and corporations up to $5.5 million (eg s 12(1), 15B(1), 16(1), 18(1); criminal penalties of 7 years imprisonment and/or a fine up to $46,200 (eg s 15A(3), 15C(13), 17B(3), 18A(3), 20A(3), 22A(7), 24A(7)).
140. EPBC Act, s 480A - C (Federal Court's power to make remediation orders); and s 480D – N (Minister's power to make remediation determinations).
141. EPBC Act, s 498.
142. EPBC Act, s 475(1)
143. EPBC Act, s 475(6). An individuals can take action on behalf of an unincorporated association: s 475(1)(c).
144. EPBC Act, s 475(7).
145. EPBC Act, s 487 (Extended standing for judicial review) extends the meaning of the term person aggrieved in the Administrative Decisions (Judicial Review) Act 1977 and allows them to bring proceedings.

 

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