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Australian Government Solicitor

 

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Legal Briefing

Number 49

(17 September 1999)

NEW ENVIRONMENT LEGISLATION

This briefing deals with the new environmental impact assessment procedures which will replace the procedures under the Environment Protection (Impact of Proposals) Act 1974. These procedures will be established by the Environment Protection and Biodiversity Conservation Act 1999 ('the EPBC Act') upon its commencement. It is likely that the Act will commence on 16 July 2000.

Objects of the Act

The objects of the EPBC Act are (among other things) to provide for the protection of the environment, especially those aspects which are matters of national environmental significance. It also seeks to promote ecologically sustainable development through the conservation and sustainable use of natural resources.

It takes a cooperative approach to the protection and management of the environment involving governments, the community and land holders, and assists in the cooperative implementation of Australia's international environmental responsibilities (section 3).

General Outline of the Act

Upon its commencement the EPBC Act will replace the National Parks and Wildlife Conservation Act 1975, the Whale Protection Act 1980, the Endangered Species Protection Act 1992, the World Heritage Properties Conservation Act 1983, and the Environment Protection (Impact of Proposals) Act 1974. It extends to each external territory, and also applies in relation to all persons within the exclusive economic zone and to acts of Australians (including the Commonwealth, and Australian corporations, aircraft and vessels) beyond the exclusive economic zone (see section 5). The Act does not affect the Aboriginal Land Rights (Northern Territory) Act 1976 or the Native Title Act 1993 (see section 8).

This briefing does not purport to cover all of the relevant issues or to set out procedures that will ensure compliance with the EPBC Act in all cases. However, as there are serious consequences for the Commonwealth and private parties if Commonwealth actions and decisions are vulnerable to challenge, departments and agencies should seek further legal advice in relation to any specific issues that arise.

There are also serious consequences for Commonwealth agencies which take prohibited actions without the necessary approval (see, for example, sections 22A and 28).

Meaning of Action

The word 'action' is defined in the EPBC Act (section 523). It includes projects, developments, and activities. Lawful use of land, sea or seabed occurring immediately before the commencement of the EPBC Act is not an action. Nor is a decision by a government body to grant an authorisation for another person to take an action (section 524). Provision of funding by way of a government grant is also not an action (section 524A).

Commonwealth Approval - Controlled Actions

Subject to the exceptions below, approval is required under Part 9 of the EPBC Act for an action:

  • by any person which has, or is likely to have a significant impact on world heritage values of a declared World Heritage property (sections 12-15A)

  • by any person which has, or is likely to have, a significant impact on the ecological character of a declared Ramsar wetland (sections 16-17B)

  • by any person which has, or is likely to have a significant impact on listed threatened species and communities (sections 18-19)

  • by any person which has, or is likely to have a significant impact on listed migratory species (sections 20-20A)

  • which is a nuclear action done by any person in a territory, or done by:

    - a constitutional corporation (a corporation within the ambit of section 51(xx) of the Constitution)

    - the Commonwealth, or

    - a Commonwealth agency

which has, or is likely to have a significant impact on the environment (sections 21-22A)

  • by any person which is an act in a Commonwealth marine area which has, or is likely to have a significant impact on the environment (sections 23-24A)

  • which is an act on Commonwealth land (not being one done by the Commonwealth or a Commonwealth agency) that has, or is likely to have a significant impact on the environment, or is an act outside Commonwealth land which has, or is likely to have a significant effect on the environment on Commonwealth land (section 26)

  • which is an act prescribed by the regulations (section 25)

  • which is an act by the Commonwealth or a Commonwealth agency, either inside or outside the Australian jurisdiction, which has, or is likely to have a significant impact on the environment (section 28).

 

Actions Not Requiring Commonwealth Approval

An action which can be done without Commonwealth approval under Part 9 is not a controlled action. Such actions are:

  • An action which is declared not to require approval by a bilateral agreement between the Commonwealth and a state or self-governing territory, and where it is done in accordance with a bilateral management plan accredited under the bilateral agreement (section 29; see also sections 46 and 49). The Environment Minister must table a bilateral management plan in Parliament before it can be accredited (section 46(4)), and it may be disallowed by Parliament.

  • An action which is within a class of actions declared by the Environment Minister not to require approval (sections 32 and 33) and which has been approved in accordance with an accredited management plan in force under a law of the Commonwealth.

  • An action under a Regional Forest Agreement if it is undertaken in accordance with the agreement (section 38). However, this exemption does not extend to forestry operations in a listed World Heritage property, or a wetland included in the List of Wetlands of International Importance kept under the Ramsar Convention (section 42).

  • An action which is done in the Great Barrier Reef Marine Park where the person taking the action is authorised to do so by an instrument issued under the Great Barrier Reef Marine Park Act 1975 (section 43).

A Commonwealth action relating to the provision of foreign aid, managing aircraft operations in airspace, developing new or existing airports, or an action prescribed in the regulations (section 159 and following) is subject to a special environment assessment process, and therefore does not need approval under Part 9.

In addition, an action by the Commonwealth or a Commonwealth agency which is necessary in the interests of Australia's defence or security, or for preventing or mitigating a national emergency, may be exempted in writing by the Minister (subsection 28(3)).

Where a Commonwealth agency must comply with the law of a state or territory dealing with environmental protection, the Environment Minister may make a declaration exempting the agency from a requirement for the action to be approved under the EPBC Act (section 28(5)).

Obtaining Approvals

The Environment Minister must decide whether a proposed action is a 'controlled action' for the purposes of the Act (section 75). In order to bring possible controlled actions to that Minister's attention, those proposing to take an action that is (or is thought to be) a controlled action must refer it to the Minister for a decision as to whether it is, in fact, a 'controlled action' (section 68). The Environment Minister may then seek and take into account comments from relevant state and territory ministers on whether the proposed action is a 'controlled action'. Public comments must also be sought via the Internet (section 74(3); see also section 170A).

If the Environment Minister decides the action is a controlled action, he or she must appoint a 'proponent' for the action. Time limits of 20 business days at most apply in relation to these ministerial decisions. Written notice of the decision must be given to those (among others) proposing to do the action. Those receiving this notice have 28 days to request reasons for the decision. The Environment Minister has a limited power to reconsider the decision (section 78).

If the Environment Minister decides that a proposed action is a 'controlled action' then that Minister must decide (section 87(1)) which of the following methods will be used to assess 'relevant impacts' of the action - that is, the impact the act is likely to have on a matter protected by the relevant or controlling provision for the act in Part 3 (section 82). Methods available include:

(a) an accredited assessment process - however, the Environment Minister may only choose this method if he or she is satisfied that, amongst other things, the process will ensure that the 'relevant impacts' of the decision will be adequately addressed (section 87(4))

(b) an assessment on preliminary documentation, but only if the Environment Minister is satisfied that he or she will be able to make an informed decision (section 87(5))

(c) a public environment report (prepared and published by the proponent of the action in accordance with ministerial guidelines and finalised following public comment (sections 97-99) - the decision is made by the Environment Minister after considering the public environment report and an assessment report from the Secretary (sections 100 and 133)

(d) an environmental impact statement (prepared and published by the proponent of the action in accordance with ministerial guidelines and finalised following public comment (section 103) - the decision is made by the Environment Minister after considering the statement and an assessment report from the Secretary (sections 105 and 133)

(e) a public inquiry which reports to the Environment Minister (section 107).

Guidelines may be published in the Gazette setting out the criteria for deciding which approach must be used for assessing the relevant impacts of the action (section 87(6)). The detailed steps in the methods of assessment in paragraphs (b) to (e) above are set out in Divisions 4, 5, 6 and 7 respectively of Part 8.

In deciding whether or not to approve the taking of an action, and what conditions to attach to an approval, the Environment Minister (generally speaking) must consider any matters relevant to any matter that is protected by the controlling provision for the action in Part 3, as well as economic and social matters. The Environment Minister must also take into account the principles of ecologically sustainable development (section 3A), and any other relevant information that the Minister has (section 136). Further, the Environment Minister must not act inconsistently with Australia's obligations under relevant international environmental conventions (sections 137-140).

Transitional Arrangements

The Environment Protection (Impact of Proposals) Act 1974 (the EPIP Act), and all the instruments (including regulations and administrative procedures) made under it and in force immediately before the commencement of the new Act, continue to apply (see Schedule 3, Item 3 of the Environmental Reform (Consequential Provisions) Act 1999) in relation to the following actions:

  • actions assessed under the EPIP Act before the EPBC Act commences (Schedule 1, Item 3)

  • actions being assessed under the EPIP Act at the time the EPBC Act commences (Schedule 1, Item 4)

  • actions proposed before the commencement of the EPBC Act and in relation to which a proponent is designated before that time, and which are covered by agreement between the proponent and the Minister for assessment under the EPIP Act (Schedule 1, Item 5)

  • the negotiation and making of a Regional Forest Agreement if the negotiation and making is an 'EPIP activity' (that is, an activity described in section 5(1) of the EPIP Act, proposed before the commencement of the EPBC Act, and for which a proponent has been designated under the Administrative Procedures made under the EPIP Act - see Schedule 1, Item 1(1)).

For further information please contact any of the following lawyers:

Canberra

Frank Marris

(02) 6253 7083

 

Susan Reye

(02) 6274 1391

 

Lachlan Kennedy

(02) 6253 7090

 

Catherine Langman

(02) 6253 7053

 

Harry Dunstall

(02) 6253 7066

Sydney

David Durack

(02) 9581 7474

Melbourne

Martin Bruckard

(03) 9242 1386

Brisbane

Glenn Owbridge

(07) 3360 5700

Perth

Graeme Windsor

(08) 9268 1102

Adelaide

Sarah Court

(08) 8205 4231

Darwin

Rick Andruszko

(08) 8943 1400

Hobart

Peter Bowen

(03) 6220 5474


ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

The material in this briefing is provided for general information only and should not be relied upon for the purpose of a particular matter. Please contact AGS before any action or decision is taken on the basis of any of the material in this briefing.

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