Legal Briefing No. 49

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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