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Science, Technology, Environment and
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
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
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:
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
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.
Actions that require
approval under the EPBC Act undergo an environment
assessment process, as set out in the EPBC Act, and supplemented by
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
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.
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
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
- 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
- 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
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.
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
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
- 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.
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:
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
were proposed to these provisions in 2015 but did not progress through
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
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
national environmental laws and establishing
an independent national environment protection agency.
Department of the
Environment and Energy webpages, including:
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
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
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,
Statistics in this guide are based on the Appendix
4 of the Department’s Annual
Report 2017–18 or the public
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
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