The scope of the EPBC Act
The objects of the Act
Currently, the objects of the Act are:
to provide for the protection of
the environment, especially those aspects of the environment that are matters
of national environmental significance; and
to promote ecologically
sustainable development through the conservation and ecologically sustainable
use of natural resources; and
to promote the conservation of
to provide for the protection
and conservation of heritage; and
to promote a co-operative approach to the protection
and management of the environment involving governments, the community, land‑holders and indigenous
to assist in the co-operative implementation of Australia's
international environmental responsibilities; and
to recognise the role of
indigenous people in the conservation and ecologically sustainable use of
Australia's biodiversity; and
to promote the use of indigenous
peoples' knowledge of biodiversity with the involvement of, and in co-operation with, the owners of the
The committee received evidence that one particular aspect of the
wording of these objects presented both a legal flaw and a problem with regard
to Australia's international commitments. The clauses within the objects that
specifically refer to protecting the environment and heritage state that the
Act must 'provide for' that protection. The committee heard evidence that these
words substantially weaken the effect of the legislation.
Governance expert Mr Tom Baxter began by drawing attention to
consideration by the courts of the use of the phrase 'provide for' in the
context of a dispute regarding another aspect of the EPBC Act's operation: RFAs.
During Brown v Forestry Tasmania,
the trial judge considered the implication of a section of the Regional
Forest Agreements Act 2002 which describes an RFA as an agreement that,
amongst other things, 'provides for a comprehensive, adequate and
representative reserve system...' and also 'provides for the ecologically
sustainable management and use of forested areas in the region or regions'
Baxter noted the judge's interpretation of the phrase 'provides for',
which was accepted by the full court in the subsequent appeal.
His Honour said:
The Commonwealth submits the phrase ‘provides for’ in the
definition of RFA in the RFA Act does not mean ‘requires’ or ‘establishes’ in a
legally enforceable manner. All that is relevantly required, according to the
Commonwealth, is that the RFA establishes a structure or policy framework which
facilitates or enables the creation or maintenance of a CAR Reserve System and
the implementation of ESFM practices.
The Commonwealth notes the use of ‘provides for’ instead of
‘provide’ and refers to dictionary definitions of ‘provides for’ which
emphasise the making of arrangements for, rather than the actual provision of,
The Commonwealth and Forestry Tasmania refer to the judgment of
the Full Court of the Supreme Court of New South Wales in Stocks and Parkes
Investments Pty Ltd v The Minister  1 NSWLR 932 (‘Stocks and
Parkes Investments’) at 940, where the Court said: ‘There is a great
difference between the verb "provide" and the verb "provide
for" or "make provision for" and it is this difference which
gives a clue to the construction of cl. 16. The difference between
"provide" and "provide for" is that the former means to
give or to make available in fact, while the latter looks to the planning stage
alone. You provide for a school site by "looking forward" and
planning accordingly. You provide a school site by actually making it
I accept the submissions of the Commonwealth and Forestry
Tasmania concerning the meaning of ‘provides for’. I see no reason to doubt the
analysis of the Full Court of the Supreme Court of New South Wales in Stocks
and Parkes Investments.
Baxter then pointed out that these words are used in the Act's objects
(set out above). He argued that the Act ought to 'aim higher than to merely
'provide for'... the protection of the environment and heritage'.
The Wilderness Society was likewise scathing of how the objects of the Act are
the EPBC promotes, provides for, assists, recognises,
strengthens, adopts, enhances and includes various things, but does not
actually protect or require protection of anything.
Other submitters agreed.
It was also argued that the current objects of the Act fall short of
Australia's international commitments. Australia is a signatory to the World
Heritage Convention, which states that each signatory:
... recognizes that the duty of ensuring the identification,
protection, conservation, presentation and transmission to future generations
of the cultural and natural heritage situated on its territory, belongs primarily
to that State. It will do all it can to this end, to the utmost of its own
resources and, where appropriate, with any international assistance and
co-operation, in particular, financial, artistic, scientific and technical,
which it may be able to obtain.
To ensure that effective and active measures are taken for the
protection, conservation and preservation of the cultural and natural heritage
situated on its territory, each State Party to this Convention shall endeavour,
in so far as possible, and as appropriate for each country ... to take
appropriate legal, scientific, technical, administrative and financial measures
necessary for the identification, protection, conservation, presentation and
rehabilitation of this heritage...
Mr Baxter suggested that agreeing to the convention requires Australia
'to "ensure" protection, conservation, etc, not merely "provide
The committee also notes that the Productivity Commission, in its 2004
inquiry on native vegetation and biodiversity regulation, recommended that the
goals of environmental legislation 'should be clearly specified in terms of
desired environmental outcomes'.
If the goal of the Act is to achieve environmental protection outcomes with
regard to MNES, the committee can see merit in modifying the objects of the Act
to state that directly.
The committee recommends that the objects of the Act be amended to
remove the words 'to provide for' from section 3(1)(a) and 3(1)(ca).
Matters of national environmental significance
Chapter 4 of the Act establishes procedures for determining whether a
proposed action requires environment impact assessment (EIA) and approval under
the Act. It also establishes assessment process and procedures for approving
Approval under the EPBC Act is required:
for actions that have, will have or are likely to have a
significant impact on a matter of NES [national environmental significance];
and for Australian Government actions that are likely to have a significant
impact on the environment or the environment on Commonwealth land and actions
on Commonwealth land that are likely to have a significant impact on the
A significant impact is:
an impact which is important, notable, or of consequence, having
regard to its context or intensity. Whether or not an action is like to have a
significant impact depends upon the sensitivity, value, and quality of the
environment which is impacted, and upon the intensity, duration, magnitude and
geographic extent of the impacts.
There are seven MNES protected under the Act:
World Heritage properties;
National Heritage places;
wetlands of internationals importance;
listed threatened species and ecological communities;
migratory species protected under international agreements;
Commonwealth marine areas; and
nuclear actions (including uranium mines).
MNES are also referred to as 'protected matters' or 'triggers'.
World Heritage properties and
National Heritage places
The Act provides for the listing of natural, historic or Indigenous
places that are of outstanding national heritage value as well as heritage
places on Commonwealth lands and waters or under Australian Government control.
A declared World Heritage property is an area that has been included in
the World Heritage List or declared by the Minister to be a World Heritage
property. The National Heritage List includes natural, historic and Indigenous
places of outstanding heritage value.
Once a heritage place is listed under the Act, special requirements come
into force to ensure that the values of the place will be protected and
conserved. The Act provides for the preparation of management plans which set
out the significant heritage aspects of the place and how the values of the
site will be managed.
To date there are 17 places on the World Heritage List and some 79
National Heritage places listed.
Wetlands of international
A declared Ramsar wetland is an area that has been designated under
Article 2 of the Ramsar Convention
or declared by the Minister to be a declared Ramsar wetland under the Act. The
broad aims of the Ramsar Convention are to halt the worldwide loss of wetlands
and to conserve those that remain through wise use and management. The
Convention provides for international cooperation, policy making, capacity
building and technology transfer.
Under the Ramsar Convention a wide variety of natural and human-made
habitat types, ranging from rivers to coral reefs, can be classified as
wetlands. Wetlands include swamps, marshes, billabongs, lakes, salt marshes,
mudflats, mangroves, coral reefs, fens, peat bogs, or bodies of water - whether
natural or artificial, permanent or temporary. Water within these areas can be
static or flowing; fresh, brackish or saline; and can include inland rivers and
coastal or marine water to a depth of six metres at low tide. There are even
The Act establishes a process for identifying Ramsar wetlands and best
practice management through nationally consistent management principles.
These principles have been set out in regulations and cover matters relevant to
the preparation of management plans, environment assessment of actions that may
affect the site, and the community consultation process. A management plan for
a Ramsar wetland cannot be accredited unless it is in accordance with these
principles. The principles may also be used for the management of any wetland
Listed threatened species and
The Act provides for the listing of nationally threatened native species
and ecological communities, native migratory species and marine special and
The Act protects Australia's native species and ecological communities
by providing for:
identification and listing of species and ecological communities
development of conservation advice and recovery plans for listed
species and ecological communities;
development of a register of critical habitat;
recognition of key threatening processes; and
where appropriate, reducing the impacts of these processes
through threat abatement plans.
Any person may nominate a native species, ecological community or
threatening process for listing under any of the categories specified.
species protected under international agreements
Migratory species are those animals that migrate to Australia and its
external territories, or pass through or over Australian waters during their
annual migrations, and include mammals, birds, fish, reptiles and insects.
Listed migratory species also include any native species identified in an
international agreement approved by the Minister.
The national list of migratory species consists of species listed under
the following International Conventions:
Convention on the Conservation of Migratory Species of Wild
Animals - (Bonn Convention)
Japan-Australia Migratory Bird Agreement (JAMBA)
China-Australia Migratory Bird Agreement (CAMBA).
The Commonwealth marine area is any part of the sea, including the
waters, seabed, and airspace, within Australia's exclusive economic zone and/or
over the continental shelf of Australia, that is not state or Northern
Territory waters. They stretch from 3 to 200 nautical miles from the coast and
are areas which are recognised to have high conservation value.
Nuclear actions are:
establishing or significantly modifying a nuclear installation;
transporting spent nuclear fuel or radioactive waste products
arising from reprocessing;
establishing or significantly modifying a facility for storing
radioactive waste products arising from reprocessing;
mining or milling uranium ores, excluding operations for recovering
mineral sands or rare earths;
establishing or significantly modifying a large-scale disposal
facility for radioactive waste. A decision about whether a disposal facility is
large scale will depend on factors including:
the activity of the radioisotopes to be disposed of
the half-life of the material
the form of the radioisotopes
the quantity of isotopes handled;
decommissioning or rehabilitating any facility or area in which
an activity described above has been undertaken; or
any other type of action set out in the EPBC Regulations.
Option for additional triggers
Section 25 of the Act provides a framework for recognising additional MNES
through Regulations after consultation with the states and territories. There
has been one new MNES established since the commencement of the Act: the
environment of the Great Barrier Reef Marine Park.
Matters involving the Commonwealth
The Act also regulates actions, undertaken on Commonwealth land or outside
of Commonwealth land, that are likely to have a significant impact on the
environment of Commonwealth land, or are undertaken by the Commonwealth or a
Commonwealth agency and are likely to have a significant impact on the
environment anywhere in the world.
Are the 'triggers' in the Act adequate?
Since its enactment, concerns have been raised about the scope of the
Act. For example, a number of submitters to the 2006 inquiry into the provisions
of the Environment & Heritage Legislation Amendment Bill (No. 1) 2006,
noted the need for additional triggers, in particular the impacts of greenhouse
gas pollution, climate change, land clearing and water extraction. 
A number of submitters to the current inquiry also raised concerns about
the 'trigger' process in the Act.
ANEDO expressed its view that the Act gives the Commonwealth a limited
and narrow role to intervene in decisions affecting a MNES.
It advocated the addition of new triggers as well as amendments to improve
current matters of national significance.
The Australian Conservation Foundation (ACF) likewise considered that new
triggers for the application of the assessment and approval regime and
improvements to existing triggers are required if the Act is to achieve its
stated objectives and meet community expectations about an appropriate role for
the Commonwealth in protecting our natural environment.
While there were various proposals put forward to broaden the scope of
the triggers in the Act, two were most prominent during the committee's current
inquiry: greenhouse gas; and land clearing.
In its submission, the National Parks Australia Council (NPAC) noted
that the role of climate change and a greenhouse gas ‘trigger’ in the EPBC Act
has been debated since the first EPBC Bill. NPAC suggested that the design and
implementation of the current Act makes it difficult for the Act to address
Specifically the ‘significant impact’ test has proved a real
obstacle given that even very large amounts of greenhouse emitted as a result
of any single action in Australia will be ‘a drop in the ocean’ on the world
stage. However that is not to say that the EPBC Act does not have the potential
to make an impact on Australia’s emissions.
NPAC offered two options for inserting a greenhouse gas trigger into the
Act. The first was:
Listing climate as a Matter of National Environmental
Significance. A direct trigger for the operation of the Act meaning that once a
project will emit or cause to be emitted, a prescribed amount of Green House
Gas (GHG) it is a controlled action. ... 
Its second option was:
to insert a consideration requirement that at each stage of the
decision making process the Minister consider the climate change impacts of the
Action and its contribution to Australia’s greenhouse gas emissions. This
measure should allow for a more comprehensive range of conditions to be
attached to approvals ... and if combined with a prescribed threshold may lead to
NPAC concluded that the combination of these two measures and the
requirement that projects only be assessed for their contribution to
Australia’s greenhouse gas emissions would increase the scope of the Act to
address action previously excluded and hopefully reduce the number of highly
carbon intensive actions undertaken.
The Department of Defence indicated concern that the Act does not
currently provide for direct responses to climate change, particularly where
there is a need to balance competing priorities. For example, the increasing
need to implement more energy efficient design and upgrades to facilities in
response to the climate change agenda may have the potential to conflict with
the priorities to conserve heritage or environmental values.
The ACF considered the lack of an explicit mechanism to regulate
emissions of greenhouse gases (together referred to as 'carbon emissions') has
been a widely acknowledged shortcoming of the Act since inception and welcomed
current work in progress to develop a national emissions trading scheme ('ETS'),
the Carbon Pollution Reduction Scheme ('CPRS').
The ACF acknowledged the current Government’s policy platform that the
inclusion of a 'climate change trigger' in the Act is an appropriate approach
to planning processes and decisions.
The Wilderness Society also noted that the lack of a greenhouse gas
trigger is a fundamental problem with the Act. However, it stated:
[a]ny climate change trigger which only works in the current
framework of individual projects will be limited in its effectiveness, and
should be altered to take account of the cumulative impacts of greenhouse gas
ANEDO recommended that the Act be amended to include a greenhouse gas
trigger that any actions resulting in emissions over a specified level per year
be recognised as a MNES and that all projects on a designated development list
trigger approval provisions.
Friends of the Earth were one of several other groups to recommend triggers
based on specific emission values for proposed projects. They recommended the
Act be triggered for proposals that would produce over 100 000 tonnes of
CO2 equivalent per annum.
WWF supported a trigger on the same basis.
The International Fund for Animal Welfare (IFAW) also suggested a
greenhouse trigger. They proposed that such a trigger could not only examine
greenhouse emissions impacts but also address impacts (both negative and
positive) or carbon sinks.
The Conservation Council of South Australia (CCSA) argued that the trigger
would need to take account of the cumulative impact of greenhouse gas emission
Professor Godden agreed there should be such a trigger, as did the Planning
The committee recognises that introducing a greenhouse gas trigger may
have implications in the context of the CPRS, and that these must be carefully
With respect to the need for a greenhouse gas trigger and the CPRS, Mr
Andrew Walker suggested that the proposed opt-in scheme for forest industries
under the CPRS, as detailed in the CPRS green paper, meant there was a need for
a greenhouse trigger 'so that the actual impacts are assessed under the EPBC
However, Mr Walker also acknowledged that it was difficult to say exactly how a
greenhouse gas trigger and the CPRS would interact on the basis that 'we do not
know what the outcome of the green paper will be or what form the Carbon
Pollution Reduction Scheme will take at this stage, so it is a bit premature to
The National Association of Forest Industries (NAFI) indicated that a
CPRS scheme would suffice and that a greenhouse gas trigger under the Act was
Already the government's objectives in relation to its
obligations under the Kyoto protocol and its eventual successor are being
manifested in the CPRS legislation. To have a trigger under the EPBC Act for
yet another layer of examination, assessment and approval between Minister
Garrett and Minister Wong is not necessarily a healthy situation in terms of
Land clearing is already recognised by the Commonwealth as a key
threatening process. Given the consequences of land clearing, which ANEDO noted
include the destruction of biodiversity habitat, degradation of soil,
degradation of water quality, increased salinity, release of greenhouse gas
emissions, ANEDO recommended that a comprehensive land clearing trigger be
included in the Act. While some States have legislation regulating land
clearing, ANEDO considered the Commonwealth should have a role in assessing
impacts of significant clearing proposals.
The ACF considered that existing triggers under the Act do not
adequately capture land clearing activities which, in recent years, have had devastating
impact upon biodiversity and salinity and are a significant contributor to
Australia’s carbon emissions.
ACF considered that a proposal put forward by ANEDO offered a sound
basis for approaching this issue:
... an approach to land clearance/native vegetation triggers based
on three elements: (i) a generally applicable area threshold for clearance of
native vegetation; (ii) a trigger for clearance of vegetation that provides
habitat for listed threatened species or ecological communities or listed
critical habitat; and (iii) a schedule of activities involving general land
clearance (eg. major coastal developments) that would trigger the A&A
The committee notes the longstanding preference of many stakeholders for
increasing the scope of the Act through the inclusion of additional MNES. These
views have been expressed repeatedly over the years, including to the inquiry
into the 2006 amendments to the Act conducted by the predecessor to this
committee. There are at least two distinct ways in which new triggers could be included
in the Act: by an additional regulation under section 25; or through inserting
new sections under Part 3, Division 1 of the Act.
At all stages, greenhouse gas emissions and land clearing have been the
dominant issues of concern. The committee is in principle supportive of the
objective of broadening the scope of operation of the Act in these areas. There
are some issues that must be dealt with in seeking the most appropriate way in
which to proceed.
As will be noted in chapter three, currently both greenhouse gas
emissions and land clearing are registered under the Act as key threatening
processes. They have been on the books since 2001, yet in neither case has a
threat abatement plan been developed. As a result, neither issue is being
actively considered under EPBC Act processes. The committee suggests that the
minister seek the advice of the Threatened Species Scientific Committee about
the introduction of a threat abatement plan for land clearance.
The committee is aware that there are other policy processes underway
that are intended to have a direct bearing on both problems. With regard to
land clearing, the committee is aware that all Australian governments are
currently participating in a review of the National Framework for the
Management and Monitoring of Australia's Native Vegetation. This review is
scheduled to report at the end of 2009.
With regard to greenhouse gas emissions, the Commonwealth is currently planning
for the implementation of an emissions trading system, as well as presiding
over other policies as part of its CPRS. None of the submitters addressed the
issue of how a greenhouse gas trigger would mesh with an emissions trading
The committee notes that the proposed CPRS will define the government's
primary framework for action on climate change and accordingly, the role, scope
and operation of a greenhouse gas trigger in the Act would need to be
considered in light of the final design of that scheme. This will ensure that
Australia's climate change response is coherent, as well as economically and
The independent review of the Act has sought submissions on whether the
Act provides an appropriate legislative framework for addressing climate change
in the context of environmental protection and biodiversity conservation. The
report of that review is to be provided to the minister by 31 October 2009.
The committee recommends that the appropriateness of a greenhouse
trigger under the Act and the nature of any such trigger, should it be
required, be carefully considered in light of the findings of the independent review
and in the context of the government's overall response to climate change, in
particular the CPRS.
The committee recommends that, having regard to the conclusions of the
review of the National Framework for the Management and Monitoring of
Australia's Native Vegetation currently underway, and in light of advice
from the Threatened Species Scientific Committee, the government should
consider including a land clearing trigger in the Act.
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