Legal briefing No. 82

Number 82

4 June 2007

Greg Prutej

Greg Prutej

AGS Counsel to the Department of the Environment and Water Resources

T 02 6274 1826
F 02 6274 1105

greg.prutej@ags.gov.au

The Environment Protection and Biodiversity Conservation
Act 1999 (the EPBC Act) is the key Commonwealth
law relating to the protection of the environment and
conservation of biodiversity. Among other things, the
Act regulates proposals, developments and actions that
are likely to have a significant impact on certain
matters of national environmental significance (such
as World Heritage areas and nationally threatened species).
It also applies to Commonwealth actions that are likely
to have a significant impact on the environment. Accordingly,
the Act has the potential to impact upon all Commonwealth
agencies that engage in activities related to the use
of land or sea.

Amendments to the EPBC Act that commenced operation
in February 2007 have clarified many aspects of the operation
of the Act, extensively modified the process for assessment
and approval of actions, and improved the strength and
flexibility of compliance and enforcement measures.

This briefing aims to provide AGS clients with an outline
of the core provisions of the EPBC Act that regulate environmentally
significant activities of the Commonwealth. It also introduces
some specific obligations of the Commonwealth relating
to the protection of threatened species and heritage values
on Commonwealth land. This information is intended to assist
clients to identify situations where they need to consider
the possible application of the EPBC Act and perhaps seek
assistance from the Department of the Environment and Water
Resources.

Overview of the EPBC Act

The EPBC Act replaced several pieces of Commonwealth legislation
that dealt with environmental protection and biodiversity
conservation, including the Environment Protection (Impact
of Proposals) Act 1974 and the Australian Heritage
Commission Act 1975. As such, the EPBC Act contains
a number of distinct but frequently overlapping regimes.
In summary, the principal functions of the Act are as follows:

  • Regulation of actions that have, will have or are
    likely to have a significant impact on a matter of 'national
    environmental significance'. Currently those matters
    of national environmental significance protected by the
    Act are:
    • World Heritage properties1
    • National Heritage places2
    • wetlands of international importance3
    • listed threatened and migratory species, and ecological
      communities4
    • the environment, in respect of nuclear actions5
    • the marine environment6
  • regulation of Commonwealth actions that have, will
    have or are likely to have a significant impact on the
    environment. This includes:
    • actions taken anywhere by the Commonwealth and Commonwealth
      agencies7
    • actions taken by anyone on Commonwealth land,8 and
      actions taken by anyone outside Commonwealth land that
      have a significant impact on the environment on Commonwealth
      land or a Commonwealth Heritage place outside the Australian
      jurisdiction9
  • protection and conservation of listed threatened species
    and ecological communities, listed migratory species,
    listed marine species, and cetaceans (i.e. whales and
    dolphins)10
  • management and protection of areas of especial importance
    (i.e. World Heritage areas, National Heritage places,
    wetlands of international importance, biosphere reserves,
    Commonwealth Heritage places, Commonwealth reserves and
    conservation zones, and overseas places of historic significance
    to Australia)11
  • control of international trade in endangered species12.

The main focus of this briefing is the regulation of environmentally
significant actions of the Commonwealth under Subdivision
B of Division 2 of Part 3 of the EPBC Act. Most of the
concepts that arise in this analysis bear a corresponding
relevance to the other kinds of actions that are controlled
under Part 3 of the Act, such as an action (by anyone,
including the Commonwealth or a Commonwealth agency) that
has a significant impact on a matter of national environmental
significance.

This briefing also outlines the other key Commonwealth
responsibilities under the EPBC Act in relation to the
protection of the environment and conservation of biodiversity
on Commonwealth land.

Regulation of Commonwealth actions with a significant
impact on the environment

The form of regulation employed by Part 3 of the EPBC
Act is a prohibition, to which limited categories of exemptions
apply. For example, s 28(1) provides that 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.13 'Commonwealth agency' is
defined in s 528 of the EPBC Act and includes:14

  • a Minister
  • a body corporate established for a public purpose
    by a law of the Commonwealth
  • a body corporate established by a Minister
  • a Commonwealth-owned company
  • a person holding a Commonwealth office or appointment.

A civil penalty is prescribed for a breach of s 28(1)
by a Commonwealth agency.15 Perhaps more importantly,
a breach of s 28(1) by the Commonwealth or a Commonwealth
agency could be restrained by third party proceedings in
the Federal Court for an injunction under s 475 of the
Act. An injunction could potentially be combined with other
orders, such as an order to repair or mitigate damage to
the environment.16 Standing to apply for an
injunction is broadly conferred on individuals and organisations
who have a history of activities for the protection of
the environment.17

The following sections of this briefing analyse the key
concepts that apply when trying to determine whether a
proposed activity by the Commonwealth or a Commonwealth
agency is subject to s 28 of the EPBC Act:

  • what is an 'action'?
  • what is the 'impact' of an action?
  • when is an impact 'likely'?
  • when is an impact 'significant'?
  • does an exemption apply?

These are followed by a simplified outline of the referral,
assessment and approval process that applies when an action
comes within the coverage of s 28 and is not otherwise
exempted from the prohibition on the taking of the action.

What is an 'action'?

The EPBC Act defines 'action' to include something
as broad and general as a 'project', 'development' or 'undertaking',
and something as specific as an 'activity'.18 Thus,
an action can be identified at varying levels of generality.
The most appropriate degree of specificity in the identification
of an action depends on a balancing of competing considerations.
On one hand, an action should generally include all of
the components of an integrated set of activities, as this
promotes an efficient assessment process and is conducive
to the effective setting and implementation of measures
to protect the environment.19 On the other hand,
if a referred action includes components that are insufficiently
planned to be capable of meaningful assessment, the process
may be unduly delayed as a result.

The definition of 'action' contains important
exclusions. Section 524 excludes the grant of a governmental
authorisation, while s 524A excludes the provision of grant
funding. Thus, many Commonwealth activities which would
once have been regulated under the Environment Protection
(Impact of Proposals) Act 1974 are excluded from the
definition of 'action'. The EPBC Act might
apply to the taking of an action that is authorised or
funded by a government agency, but it does not need to
be complied with by the relevant government agency in granting
the authorisation or funding.

In Save the Ridge Inc. v Commonwealth [2005] FCAFC
203, the Full Court of the Federal Court took a very broad
approach to the exclusion of governmental authorisations.
The majority (Black CJ and Moore J) held that amendments
to the National Capital Plan were a governmental authorisation
in respect of a proposed road in the Australian Capital
Territory, because they removed a legislative constraint
on the construction of the road. Therefore the amendments
to the National Capital Plan were not an 'action' and
did not require approval under the EPBC Act.

Following this decision, any administrative decision by
a government that removes a statutory barrier to the taking
of an action is itself not an 'action'.20 For
example, an amendment to a planning scheme or the grant
of an approval for a subdivision does not constitute an
action. It does not matter whether these processes result
in the issue of a permit or other form of specific approval
for the taking of an action.

Government decisions that do not directly remove any legislative
constraint on the taking of an action need to be considered
separately. For example, a sale or lease of Commonwealth
land is not a governmental authorisation because it does
not operate directly in relation to any legislative constraint
on the use of the land by the purchaser or lessee. Some
judicial statements in Save the Ridge may appear
to suggest that the question whether such an activity could
be an 'action' depends on whether it entails
actual direct or indirect interactions with the physical
environment.21

What is the 'impact' of an action?

The amendments to the EPBC Act which commenced operation
in 2007 inserted a new definition of 'impact' of
an action in s 527E of the Act. That definition covers
both of the following types of impacts:

  • the 'direct' consequences of an action
    (i.e. impacts that are visited on the physical environment
    through the medium of the action itself)
  • the 'indirect' consequences (i.e. impacts
    that occur in the physical environment through the medium
    of some intermediate cause), provided that the action
    is a 'substantial cause' of the consequence.

In relation to the indirect consequences of an action,
if the intermediate cause of such a consequence consists
of the taking of another action by another person, then
unless that intermediate (or secondary) action is taken
at the direction or request of the person taking the primary
action, the indirect consequence is not to be treated as
an impact of the primary action unless:

  • the primary action facilitates, to a major extent,
    the secondary action
  • the secondary action is contemplated by the person
    taking the primary action, or is a reasonably foreseeable
    consequence of the primary action
  • the indirect consequence is contemplated by the person
    taking the primary action, or is a reasonably foreseeable
    consequence of the secondary action.

These provisions were inserted in the EPBC Act in response
to the decision of the Full Court of the Federal Court
in Minister for the Environment and Heritage v Queensland
Conservation Council Inc. [2004] FCAFC 190 (the Nathan
Dam case). They are intended to clarify, elaborate and
qualify the effect of that decision. The case concerned
the proposed Nathan Dam project on the Dawson River in
Central Queensland. The central question was the scope
of the 'relevant impacts' that had to be taken
into account by the Minister in deciding whether the dam
project was subject to Part 3 of the Act. Of particular
concern was the possible indirect impact of the dam on
the world heritage values of the Great Barrier Reef World
Heritage Area.22 These impacts might occur as
a result of the use of water from the dam by farmers for
agricultural irrigation, with consequent runoff of agricultural
chemicals into the Nathan River and downstream to the Great
Barrier Reef.

The Full Court of the Federal Court held that the impacts
of an action for the purposes of the EPBC Act include each
way in which the action adversely influences or affects
the relevant matters of national environmental significance
protected by Part 3 of the Act. They include all effects,
whether direct or indirect, which are sufficiently close
to the action to allow it to be said, without straining
the language, that they are, or would be the consequences
of the action on the protected matter. Such consequences
include those which can reasonably be imputed as within
the contemplation of the proponent of the action, whether
those consequences are within the control of the proponent
or not. In particular, they could include the impacts of
activities by third parties that are consequences of the
principal action. In this case, the use of water for growing
cotton was clearly within the proponent's contemplation
and could be regarded as a consequence of the proposed
dam project. Therefore the likely impacts of that use of
the water could also be regarded as impacts of the construction
and operation of the dam.

It is important to note that the above discussion about
indirect impacts resulting from intermediate actions is
relevant to the application of the referral, assessment
and approval process in the EPBC Act. In contrast, when
the question is whether a prohibition in Part 3 of the
Act has been breached, indirect impacts that occur through
the medium of intermediate actions must be disregarded,
unless the intermediate actions were taken at the direction
or request of the person taking the primary action.23

When is an impact 'likely'?

The EPBC Act is concerned with the impact that an action 'has,
will have or is likely to have' on a matter that
is protected by a provision of Part 3. The inclusion of 'likely' impacts
arguably expands the coverage of Part 3 of the Act to include
situations where an impact is identified with a degree
of confidence that is less than certainty or even satisfaction
on the balance of probabilities. 'Likely' may
mean 'prone', 'with a propensity',
or 'liable' in the sense of a real and not
remote chance or possibility.24 Such a liberal
interpretation of 'likely' is arguably consistent
with the EPBC Act's emphasis on the 'precautionary
principle', which is an underlying theme of the Act
along with other principles of ecologically sustainable
development.25 The precautionary principle in
this context means that if there are threats of serious
or irreversible environmental damage, a lack of full scientific
certainty about the impacts of an action should not be
used as a reason for postponing measures to prevent environmental
degradation.

On the other hand, it has been held that the EPBC Act
does not apply in relation to the potential impacts of
an action that 'lie in the realm of speculation'26 or
are mere 'hypothetical possibilities'.27 For
example, in Mees v Kemp [2004] FCA 356 the applicant
under the Administrative Decisions (Judicial Review)
Act 1977 argued that the construction and operation
of a proposed freeway would lead to the construction of
a link road, the impacts of which would need to be considered
under the EPBC Act as indirect impacts of the proposed
freeway. However, Weinberg J held that the link road was
a mere hypothetical possibility of a kind that did not
have to be taken into account in assessing the impacts
of the proposed freeway on matters of national environmental
significance. His Honour relied on statements by the authority
that would be responsible for any link road project, which
strenuously denied any intention to undertake it.28

When is an impact 'significant'?

The test of significance is one of the principal measures
employed in the EPBC Act to limit the categories of actions
that are subject to the Act. Perhaps inevitably, the concept
is, to an extent, inherently uncertain and subjective.
The Federal Court has adopted a working definition of 'significant' as 'important,
notable or of consequence, having regard to its context
and intensity'.29 While this elucidation
confirms that formal criteria of significance have little
role to play in the absence of context-specific factual
situations, it leaves users of the Act without much practical
guidance in determining whether the Act applies.

The Department of the Environment and Water Resources
has published guidelines to assist in the identification
of situations where a provision of Part 3 of the Act may
apply.30 These guidelines emphasise the importance
of considering the sensitivity, value, and quality of the
particular environmental context in which an action is
proposed to be taken,31 and provide lists of
issues to be taken into account in considering the significance
of various categories of environmental impacts (e.g. impacts
on landscapes and soils, impacts on water, impacts on plants,
impacts on animals, and impacts on heritage). In this respect,
the guidelines direct attention to the scale, intensity,
and duration or frequency of the proposed action and its
likely impacts. They also recognise the possibility of
impact avoidance, mitigation and management to reduce the
likely impacts of an action to a level below the threshold
of significance. The assessment of such matters will usually
require input from expert evaluators and, as a result,
the judicial concept of 'significance' could
evolve over time to incorporate the views of the scientific
community.

The importance of context does not mean that the significance
of an impact of an action on a protected matter is to be
determined by comparison with the impacts that may result
from other actions.32 However, it is reasonable
to assume that the word 'significant' is intended
to distinguish impacts that are important enough to justify
regulation at the Commonwealth level from impacts that
are considered to be less important and adequately dealt
with at the state and local government levels.33 In
other words, the term has some work to do. For example,
not all Commonwealth actions that have an impact on the
environment are meant to be regulated under s 28 of the
EPBC Act. But the need to consider the context in which
an action interacts with a particular protected matter
means that the line between 'significant' impacts
and other impacts is a shifting one. For example, if the
particular protected matter is extremely sensitive to disturbance,
it is arguable that almost any adverse impact on that matter
is 'significant'. Thus in Brown v Forestry
Tasmania (No.4) [2006] FCA 1729, Marshall J held that
the condition of various threatened species in Tasmania
was so precarious that forestry operations which had any
adverse impact on a member of the species would be significant.34

Consideration of the context in which an action has impacts
on a matter protected by Part 3 of the EPBC Act needs to
avoid any attribution to that action of the cumulative
impacts of a broader class of actions, to which the particular
action belongs. The common characteristics of a class of
actions could relate to the activities they involve or
the nature of their impacts. In Wildlife Preservation
Society of Queensland v Minister for the Environment and
Heritage [2006] FCA 736, the applicant under the Administrative
Decisions (Judicial Review) Act 1977 argued that the
likely impacts of the burning of coal to be produced from
two proposed coal mines could be identified through a consideration
of the cumulative impacts on protected matters of all coal
burning. Thus a suggestion was made to the effect that
the question is whether the proposed coal mines would make
a significant contribution to the accumulation of greenhouse
gases in the atmosphere as a result of the burning of coal
(an underlying assumption being that this accumulation
would lead to significant impacts on protected matters
as a result of climate change). Dowsett J rejected this
line of argument, affirming that it is not sufficient merely
to consider the size of the contribution that the action
would make to the accumulation of greenhouse gases in the
atmosphere as a result of the burning of coal. The EPBC
Act requires identification of the impacts of the particular
proposed action on particular protected matters.35

Does an exemption apply?

The main exemptions from the prohibition in s 28(1) arise
through the referral, assessment and approval process in
the Act. The prohibition stops applying to a Commonwealth
action if the Minister for the Environment and Water Resources
decides at the start of that process that the action is
not a 'controlled action' (i.e. it is not an
action that is likely to have a significant impact on the
environment),36 or if, at the completion of
the process, the Minister decides to approve the taking
of the action.37

The Minister also has power to grant an exemption from
the prohibition in s 28(1) if he or she is satisfied that
this is necessary on grounds related to defence, security
or national emergency.38 Alternatively, the
Minister has a general power (likely to be used very sparingly)
to grant an exemption on national interest grounds.39 In
the case of a Commonwealth agency, an exemption may also
be granted if the agency is required to comply with the
relevant state or territory environmental protection laws.40

The prohibition in s 28(1) also does not apply in relation
to various actions which are considered to be subject to
adequate scrutiny and regulation through the effect of
alternative regimes (which in some cases operate in combination
with an assessment process under Part 8 of the EPBC Act).41 The
exempted actions include actions covered by a conservation
agreement between the Minister and a Commonwealth agency
(entered into under Part 14 of the Act) that includes a
declaration that the actions do not require approval under
Part 9 because they are not likely to have a significant
impact on the environment.42

The referral, assessment and approval process

If the Commonwealth or a Commonwealth agency proposes
to take an action which it thinks may be or is a controlled
action, it is required to refer the proposal to take the
action to the Minister for the Environment and Water Resources
for a decision on the question.43 (Commonwealth
agencies also have power to make a referral of a proposed
action by a third party.44) A referred proposal
may include alternative locations, time frames, and ways
of taking the proposed action.45 The regulations
prescribe the information that must be included in a referral.46 The
Department of the Environment and Water Resources has prepared
a referral template to assist in the provision of that
information.47

When a referral is received, the Minister must conduct
a consultation process involving the public and any relevant
Commonwealth, state or territory ministers.48 The
Minister also has power to seek further information about
the action from the proponent, if the Minister considers
that he or she does not have enough information about the
action to make an informed decision about whether the action
is a controlled action, or if it is a controlled action,
which approach should be used to assess the action.49 A
decision on whether the action is a controlled action must
be made within 20 business days after the referral, unless
that time is extended by the making of a request for further
information.50 In making that decision, the
Minister is not allowed to consider any possible beneficial
impacts of the proposed action on a protected matter.51

If the Minister decides that the proposed action is not
a controlled action, the action may then be taken without
contravening the prohibitions in Part 3 of the Act. Such
a decision may be contingent on the Minister's belief
that the action will be taken in a particular manner, in
which case the exemption only applies if the action is
taken in that manner.52

If the Minister decides that the action is a controlled
action, he or she must then choose the approach to be used
for assessment of the environmental impacts of the action.
The potentially available assessment approaches in relation
to Commonwealth actions53 are:

  • an accredited assessment process under a law of the
    Commonwealth, a state or a self-governing territory54
  • assessment based on the information provided in the
    referral for the proposed action55 (This option
    may be available if the Minister is satisfied that the
    likely impacts of the proposed action are predictable,
    relatively small-scale or reversible, well-understood,
    limited to few matters protected under Part 3, and uncontroversial.56)
  • assessment based on preliminary documentation (i.e.
    the referral information, possibly with specified additional
    information) together with a public consultation process57
  • assessment by public environment report58 or
    environmental impact statement59 (These approaches
    involve the preparation of guidelines for a comprehensive
    assessment by the proponent of the impacts of the action,
    along with significant public consultation.)
  • assessment by a public inquiry conducted by an independent
    commission.60

A central consideration in deciding on the approach to
be used for assessment of an action is the need to ensure
that the Minister will receive enough information about
the impacts of the action to make an informed decision
about whether to approve the action, and what conditions
to attach to any approval. This depends on the nature and
complexity of the action and its impacts, as well as the
extent of existing knowledge about those impacts. The appropriate
degree of public involvement in the process, and the desirability
of maximising the efficiency and timeliness of the process,
are also important matters to be considered.

The process culminates in the provision of a report to
the Minister by the proponent (except in the case of assessment
on referral information) along with advice from the Department
of the Environment and Water Resources. The Minister must
then decide whether to approve the action, after further
consultation with other relevant Commonwealth ministers,
the proponent, and potentially the public.61 In
making the decision, the matters the Minister must have
regard to include economic and social matters and the principles
of ecologically sustainable development (including the
precautionary principle).62

An approval may be subject to conditions designed to protect,
or repair or mitigate damage to, the relevant matter protected
by the EPBC Act. The conditions do not need to relate directly
to the anticipated impacts of the proposed action.63 Among
other things, the conditions may require the approval holder
to:64

  • make a financial contribution to another person for
    the purpose of supporting activities to protect, repair
    or mitigate damage to a protected matter65
  • prepare and implement a plan, which must be approved
    by the Minister, for managing the impacts of the action
    on the protected matter
  • carry out environmental monitoring or an environmental
    audit
  • comply with conditions specified in an instrument
    made under another law.

All approvals are also subject to a condition requiring
the approval holder to ensure that any person who carries
out the action on their behalf is informed of the conditions
of the approval and complies with those conditions.66

Part 10 of the Act contains an alternative approach to
the assessment and approval process outlined above. Part
10 provides for the approval of a class of actions which
have undergone a 'strategic assessment' process
and are then deemed to have been approved under Part 9. 67

In some cases, a conservation agreement under Part 14
of the Act provides a more effective mechanism of securing
the objectives of possible conditions of an approval. The
Minister for the Environment and Water Resources may enter
into a conservation agreement with a person who proposes
to take an action, for the protection and conservation
of matters protected under Part 3 of the Act. The main
advantage of a conservation agreement in this context is
that it is binding on any successors in title to the interest
of the proponent in the land to which the agreement relates.68 This
makes conservation agreements particularly appealing in
relation to an action that is, or contemplates, a disposition
of land.

Other Commonwealth obligations concerning Commonwealth
land

The Commonwealth's obligations under the EPBC Act
as an owner and manager of land extend beyond the regime
outlined above in relation to an action by the Commonwealth
or a Commonwealth agency that may have a significant impact
on the environment. The following sections of this briefing
discuss issues that arise in relation to actions by third
parties which may be carried out on or near Commonwealth
land. Other specific obligations in relation to the protection
of heritage and threatened species on Commonwealth land
are also examined.

Commonwealth land is land that is owned or held under
lease by the Commonwealth or a Commonwealth agency.69

Actions by third parties affecting Commonwealth land

Part 3 of the EPBC Act includes prohibitions on the following
actions by persons other than the Commonwealth or a Commonwealth
agency:

  • an action taken on Commonwealth land that has, will
    have or is likely to have a significant impact on the
    environment70
  • an action taken outside Commonwealth land that has,
    will have or is likely to have a significant impact on
    the environment on Commonwealth land.71

A person who proposes to take such an action would be
principally liable for it and would be expected to take
responsibility for the referral, assessment and approval
process. However, a Commonwealth agency also has power
to instigate that process by referring the proposed action
to the Minister for the Environment and Water Resources.72

Furthermore, as an owner, lessee or occupier of land,
a Commonwealth agency could potentially be liable to a
civil penalty if another person takes an action on the
land that contravenes a prohibition in Part 3 (or a condition
of an approval under Part 9) and the Commonwealth agency:73

  • knew, or was reckless or negligent as to whether,
    the contravention would occur; and
  • was in a position to influence the conduct of the
    person; and
  • failed to take all reasonable steps to prevent the
    contravention.74

Protection of heritage on Commonwealth land

The EPBC Act contains provisions to protect three categories
of places of heritage significance: World Heritage properties,
National Heritage places and Commonwealth Heritage places.
An area of Commonwealth land could potentially fall within
one or more of these categories, depending on the significance
of the heritage values associated with the land.75 The 'heritage
value' of a place includes the place's natural
and cultural environment having aesthetic, historic, scientific
or social significance, or other significance, for current
and future generations of Australians.76

World Heritage properties and National Heritage places
are matters of national environmental significance which
are protected under Part 3 of the Act.77 Commonwealth
Heritage places, as such, are generally not protected under
Part 3,78 but the Act imposes a number of specific
obligations on the Commonwealth in relation to the heritage
values of these areas as well.79

Where a World Heritage property or National Heritage place
occurs on Commonwealth land, the Minister for the Environment
and Water Resources must make a plan for managing the property
or place, which must be complied with by the Commonwealth
and Commonwealth agencies.80 With respect to
a Commonwealth Heritage place, the obligation to make the
plan applies to the Commonwealth agency that owns or controls
the place; the plan is subject to endorsement by the Minister
and must be complied with by the Commonwealth and Commonwealth
agencies.81

Commonwealth agencies are required to assist in the identification
of National Heritage values and Commonwealth Heritage values
of places that they own or control.82 They must
also prepare heritage strategies to identify and protect
the Commonwealth Heritage values of those places.83

A Commonwealth agency must not take an action that has,
will have or is likely to have an adverse impact on the
National Heritage values of a National Heritage place or
the Commonwealth Heritage values of a Commonwealth Heritage
place unless there is no feasible and prudent alternative
to taking the action, and all measures that can reasonably
be taken to mitigate the impact of the action are taken.84 This
requirement is not dependent on the adverse impact of the
action being 'significant'.

A Commonwealth agency must also ensure that any contract
for the sale or lease of an area of Commonwealth land that
includes a National Heritage place or a Commonwealth Heritage
place contains a covenant to protect the heritage values
of the place, unless the agency is satisfied that this
is unnecessary, unreasonable or impracticable.85 If
such a covenant is not included in a contract, or if it
could be insufficient to ensure the ongoing protection
of the relevant heritage values of the place, the Minister
for the Environment and Water Resources may either:86

  • seek to enter into a conservation agreement with the
    prospective buyer or lessee for the ongoing protection
    of those values, under Part 14 of the EPBC Act, or
  • advise the Commonwealth agency about measures to ensure
    the ongoing protection of those values (which the agency
    must take reasonable steps to implement).

Protection of threatened species on Commonwealth land

Listed threatened and migratory species and ecological
communities are given special protection under Part 13
of the EPBC Act. Many actions on Commonwealth land which
interfere with a member of a listed species or ecological
community are offences if taken without a permit or approval,
regardless of whether they have a significant impact on
the affected species or community.87

The EPBC Act provides for the making of plans to protect
and promote the recovery of listed species and communities.88 These
plans must be complied with by the Commonwealth and Commonwealth
agencies.89

There are also provisions in the EPBC Act protecting critical
habitat of listed threatened species and ecological communities.90 These
include a requirement to ensure that any sale or lease
of Commonwealth land includes a covenant, the effect of
which is to protect the critical habitat.91 The
Commonwealth agency that executes the sale or lease contract
must take reasonable steps to ensure as far as practicable
that the covenant binds successors in title of the buyer
or lessee.92

Key issues

These are the most important questions to be addressed
by Commonwealth agencies in considering the possible
application of the EPBC Act to their activities related
to the use or management of areas of land or sea:

  • Are those activities no more than the grant
    of governmental authorisations which remove a legislative
    barrier to another person taking an action? If
    so, the activities are not 'actions' subject
    to the EPBC Act (unless they are listed in s 160
    of the Act).
  • If the activities are 'actions',
    what impacts will they have or be likely to have
    on the environment? This needs to include indirect
    impacts, such as consequences of actions by third
    parties that are themselves a contemplated or reasonably
    foreseeable consequence of the agency's actions.
  • Are the impacts of the actions on the environment
    likely to be significant? This involves consideration
    of the environmental context of the actions – for
    example, is the environment particularly sensitive
    to disturbance, of special value, or already in
    a degraded condition? It also involves consideration
    of the scale, intensity and duration and frequency
    of the actions and any measures they entail for
    impact avoidance or mitigation.
  • If the actions are likely to have significant
    impacts on the environment, they should be referred
    to the Minister for the Environment and Water Resources
    for assessment and approval under Chapter 4 of
    the EPBC Act (unless they are exempted from the
    Act under Part 4).
  • Does the agency own or lease land on which other
    people take actions which have, will have or are
    likely to have a significant impact on the environment?
    If so, the agency should ensure that those actions
    are referred to the Minister for the Environment
    and Water Resources for assessment and approval.
  • Does the agency comply with its obligations
    in relation to the identification and protection
    of the heritage values of land that it owns or
    controls? This may include inserting appropriate
    provisions in contracts for the sale or lease of
    land.
  • If the agency takes actions which have an adverse
    impact (whether significant or not) on the heritage
    values of a National Heritage place or a Commonwealth
    Heritage place, does it consider whether there
    are feasible and prudent alternatives to those
    actions and take reasonable measures to mitigate
    the impact?
  • Does the agency ensure that listed threatened
    and migratory species and ecological communities
    on Commonwealth land are protected, including by
    complying with relevant recovery plans, threat
    abatement plans and wildlife conservation plans
    and protecting critical habitat?

Greg Prutej has been an outposted client counsel
to the Department of the Environment and Water Resources
since 2002. In that role he has provided the department
with significant advice over an extended period in relation
to the in-terpretation and administration of the EPBC
Act, and provided specialist advice concerning all of
the major court cases involving judicial review of decisions
under the Act or enforcement of the Act. Greg has also
been heavily involved in advising on the development
of the recent amendments to the Act.

Notes

  1. These are properties declared under the Convention
    for the Protection of the World Cultural and Natural
    Heritage done at Paris on 23 November 1972 (Australian
    Treaty Series 1975 No.47) (the World Heritage Convention)
    (see Subdivision A of Division 1 of Part 3 of the EPBC
    Act; also see Division 1 of Part 15 of the EPBC Act).
  2. These are places included in the National Heritage
    list under Division 1A of Part 15 of the EPBC Act. As
    a matter of national environmental significance, National
    Heritage places are protected only in respect of actions
    by constitutional corporations and the Commonwealth and
    Commonwealth agencies, actions for the purpose of cross-jurisdictional
    trade and commerce; actions in territories and Commonwealth
    areas; actions in areas protected by Article 8 of the Convention
    on Biological Diversity done at Rio de Janeiro on
    5 June 1992 (Australian Treaty Series 1993 No.32)
    (the Biodiversity Convention); and all actions that have
    a significant impact on National Heritage values that
    are indigenous heritage values of a place (see Subdivision
    AA of Division 1 of Part 3 of the EPBC Act).
  3. Also known as Ramsar wetlands, these are wetlands
    declared under the Convention on Wetlands of International
    Importance especially as Waterfowl Habitat done at
    Ramsar, Iran on 2 February 1971 (Australian Treaty
    Series 1975 No.48) (the Ramsar Convention) (see Subdivision
    B of Division 1 of Part 3 of the EPBC Act; also see Division
    2 of Part 15 of the EPBC Act).
  4. These are species and communities listed under Divisions
    1 and 2 of Part 13 of the EPBC Act (see Subdivisions
    C and D of Division 1 of Part 3 of the EPBC Act).
  5. 'Nuclear action' is defined in s 22 of
    the Act (see Subdivision E of Division 1 of Part 3 of
    the EPBC Act).
  6. The protected area is all waters inside the exclusive
    economic zone or above the continental shelf, except
    coastal waters vested in the states and Northern Territory
    under the offshore constitutional settlement (see Subdivision
    F of Division 1 of Part 3 of the EPBC Act).
  7. See Subdivision B of Division 2 of Part 3 of the EPBC
    Act.
  8. Commonwealth land is defined in section 27 of the
    Act and generally includes an area of land that is owned
    or held under lease by the Commonwealth or a Commonwealth
    agency.
  9. See Subdivisions A and AA of Division 2 of Part 3
    of the EPBC Act.
  10. See Part 13 of the EPBC Act.
  11. See Parts 15 and 15A of the EPBC Act.
  12. See Part 13A of the EPBC Act.
  13. 'Environment' is defined in s 528 of the
    EPBC Act as including:
    (a) ecosystems and their constituent parts, including
    people and communities; and
    (b) natural and physical resources; and
    (c) the qualities and characteristics of locations, places
    and areas; and
    (d) heritage values of places; and
    (e) the social, economic and cultural aspects of a thing
    mentioned in paragraphs (a)–(d).
  14. There are some exceptions, as set out in paragraphs
    (h)–(j) of the definition.
  15. The civil penalty is 1000 penalty units for a Commonwealth
    agency that is an individual, and 10,000 penalty units
    for a Commonwealth agency that is a body corporate. In
    relation to other actions to which Part 3 applies (e.g.
    actions that have a significant impact on a matter of
    national environmental significance under Division 1
    of Part 3), cognate civil penalty and criminal provisions
    apply.
  16. For example, in Minister for the Environment and
    Heritage v Greentree (No.3) [2004] FCA 1317 the
    Federal Court ordered the respondent to plant trees
    in order to repair damage caused by a contravention.
  17. See s 475(6) and (7) of the EPBC Act. The effect of
    identical provisions conferring standing for the purposes
    of the Administrative Decisions (Judicial Review)
    Act 1977 was considered in Paterson v Minister
    for the Environment and Heritage [2004] FMCA 924.
  18. See s 523 of the EPBC Act.
  19. The Minister may reject a referral of an action under
    Part 7 if he or she is satisfied that the action is a
    component of a larger action (s 74A).
  20. See also Minister for the Environment and Heritage
    v Greentree (No.2) [2004] FCA 741 in relation to
    the meaning of 'specifically authorised' in
    s 43A.
  21. See Save the Ridge Inc. v The Commonwealth [2005]
    FCAFC 203 at [17] per Black CJ and Moore J; cf. at [63]–[64]
    per Emmett J suggesting that only direct impacts are
    relevant in this respect.
  22. The taking of an action that has a significant impact
    on the world heritage values of a World Heritage property
    is prohibited under ss 12 and 15A of the EPBC Act, subject
    to the exemptions mentioned in this briefing.
  23. See ss 25AA and 28AB of the EPBC Act.
  24. See Booth v Bosworth (2001) 114 FCR 39 at [97]–[98].
  25. See ss 3(1)(b) and 3A(b) of the EPBC Act.
  26. See Queensland Conservation Council Inc. v Minister
    for the Environment and Heritage [2003] FCA 1463.
    On appeal, the Full Court took no exception to this
    finding, provided it is understood that this is predicated
    on the 'impacts' of an action, with the
    connotation ascribed to that concept as discussed above.
  27. Mees v Kemp [2004] FCA 356.
  28. See Mees v Kemp [2004] FCA 356 at [107]. Also
    see Wildlife Preservation Society of Queensland v
    Minister for the Environment and Heritage [2006]
    FCA 736 at [72].
  29. See Booth v Bosworth (2001) 114 FCR 39 at [99]–[100]; Minister
    for the Environment and Heritage v Greentree (No. 2) [2004]
    FCA 741 at [192]–[193].
  30. The guidelines for actions by the Commonwealth and
    Commonwealth agencies are available on the Internet at <http://www.environment.gov.au/epbc/publications/pubs/commonwealth-guidelines.pdf>.
    Guidelines on the application of Division 1 of Part 3
    (actions impacting on matters of national environmental
    significance) are available at <http://www.environment.gov.au/epbc/publications/pubs/nes-guidelines.pdf>.
    There are also guidelines for certain specific matters
    of national environmental significance and specific industry
    operations. These are all available at <http://www.environment.gov.au/epbc/publications/index.html>.
    The publication of guidelines to assist users of the
    Act was endorsed by the Federal Court in Humane Society
    International Inc. v Minister for the Environment and
    Heritage [2003] FCA 64 and is now authorised by s
    520A of the EPBC Act.
  31. This approach conforms to the methodology employed
    by Sackville J in Minister for the Environment and
    Heritage v Greentree (No.2) [2004] FCA 741 at [198]–[199]
    and upheld on appeal to the Full Court of the Federal
    Court in Greentree v Minister for the Environment
    and Heritage [2005] FCAFC 128 at [48].
  32. Brown v Forestry Tasmania (No.4) [2006] FCA
    1729 at [94].
  33. See Wildlife Preservation Society of Queensland
    v Minister for the Environment and Heritage [2006]
    FCA 736 at [65]–[66].
  34. Brown v Forestry Tasmania (No.4) [2006] FCA
    1729 at [97], [101]. At the time of publication, this
    aspect of the decision was subject to appeal to the Full
    Court of the Federal Court; the appeal had not yet been
    heard.
  35. See Wildlife Preservation Society of Queensland
    v Minister for the Environment and Heritage [2006]
    FCA 736 at [55]; see also paragraph 51 of the Explanatory
    Memorandum to the Environment Protection and Biodiversity
    Conservation Bill 1999. Arguably contrary to this position
    is Brown v Forestry Tasmania (No.4) [2006] FCA
    1729 at [95], [102] (subject to appeal to the Full
    Court of the Federal Court; the appeal had not yet
    been heard at the time of publication).
  36. See s 28(2)(d) and Part 7 of the EPBC Act. An action
    may also be not a 'controlled action' on
    the basis that one of the exemptions outside the referral,
    assessment and approval process applies.
  37. See s 28(2)(a) and Part 9 of the EPBC Act.
  38. See ss 28(2)(c) and (3) of the EPBC Act.
  39. See s 158 of the EPBC Act.
  40. See ss 28(2)(c), (4) and (5) of the EPBC Act.
  41. Part 4 of the EPBC Act describes categories of actions
    to which s 28(1) does not apply (see s 28(2)(b)) because
    of any of the following: the action will be subject to
    a bilaterally accredited state or territory approval
    process (Division 1 of Part 4; currently there is only
    one such bilaterally accredited process; it is inapplicable
    to Commonwealth actions); the action is covered by an
    accredited management arrangement or authorisation process
    (Division 2 of Part 4; currently applied in relation
    to certain Commonwealth-managed fisheries, in respect
    of which a special strategic assessment process under
    Part 10 of the Act is applied); the action is taken in
    accordance with a bioregional plan (Division 3 of Part
    4 which was inserted in the Act in 2007; currently there
    are no actions to which this exemption applies); the
    action is taken in accordance with a conservation agreement
    that contains a declaration that the action does not
    require approval (Division 3A of Part 4 which was inserted
    in 2007; currently there are no actions to which this
    exemption applies); the action is a forestry operation
    that is taken in accordance with a regional forest agreement
    or in a region for which a regional forest agreement
    is being developed (Division 4 of Part 4); actions in
    the Great Barrier Reef Marine Park (Division 5 of Part
    4); and actions which were authorised and/or commenced
    before the commencement of the EPBC Act (Division 6 of
    Part 4). Section 160(2) lists certain categories of actions
    that are authorised through other Commonwealth regimes;
    the prohibition in s 28(1) also does not apply to such
    actions (see s 28(2)(e)), although an assessment under
    Part 8 is still required and the person authorising the
    action must have regard to advice from the Minister for
    the Environment and Water Resources (see Division 4 of
    Part 11).
  42. See ss 37M and 306A of the EPBC Act.
  43. Section 68 of the EPBC Act. Commonwealth agencies
    also have power to make a referral of a proposed action
    by a third party (s 71).
  44. Section 71 of the EPBC Act.
  45. Section 72(3) of the EPBC Act.
  46. Sections 72(1) and (2) of the EPBC Act and Part 4
    of the Environment Protection and Biodiversity Conservation
    Regulations 2000.
  47. The referral form is available on the Internet at <www.environment.gov.au/epbc/assessmentsapprovals/referrals/pubs/referralform.doc>.
  48. Section 74 of the EPBC Act. These requirements and
    the remainder of the process do not apply if the Minister
    determines that the impacts of the proposed action on
    a protected matter are clearly unacceptable (Division
    1A of Part 3). Section 170A(b) requires notice of the
    referral (and various subsequent steps in the process)
    to be published on the Internet.
  49. Section 76 of the EPBC Act.
  50. Section 75 of the EPBC Act.
  51. Section 75(2) of the EPBC Act.
  52. Sections 28(2)(d) and 77A of the EPBC Act. A civil
    penalty is prescribed for taking the action in a way
    that is inconsistent with the specified particular manner.
  53. Assessment under a bilaterally accredited state or
    territory assessment process is also possible, but this
    is currently precluded in relation to Commonwealth actions
    (see ss 49 and 83 of the EPBC Act).
  54. See s 87(4) of the EPBC Act. A similar option is the
    making of a declaration that the EPBC Act's assessment
    provisions do not apply to a class of actions because
    the action will be adequately assessed by the Commonwealth
    or a Commonwealth agency (see s 84).
  55. See s 87(4A) and Division 3A of Part 8 of the EPBC
    Act.
  56. See Division 5.1A of the Environment Protection and
    Biodiversity Conservation Regulations 2000.
  57. See s 87(5) and Division 4 of Part 8 of the EPBC Act.
  58. See Division 5 of Part 8 of the EPBC Act.
  59. See Division 6 of Part 8 of the EPBC Act.
  60. See Division 7 of Part 8 of the EPBC Act.
  61. See ss 130–132 of the EPBC Act.
  62. See ss 136 and 391 of the EPBC Act.
  63. See s 134(1) and (2) of the EPBC Act. However, if
    the conditions require activities to be carried out that
    are not reasonably related to the proposed action, the
    consent of the proponent is required (see s 134(3A)(a)).
  64. See s 134(3) of the EPBC Act.
  65. Such a condition may only be imposed with the consent
    of the approval holder (see s 134(3A)(b) of the EPBC
    Act).
  66. See s 134(1A) of the EPBC Act.
  67. See Divisions 2 and 3 of Part 10 of the EPBC Act.
  68. See s 307 of the EPBC Act.
  69. Commonwealth land also includes land in an external
    territory (except Norfolk Island) or the Jervis Bay Territory,
    but does not include territory land in the Australian
    Capital Territory (see s 27 of the EPBC Act and the definitions
    of 'Commonwealth area' in s 525 and 'Commonwealth
    marine area' in s 24).
  70. See ss 26(1) and 27A(1) and (2) of the EPBC Act.
  71. See ss 26(2) and 27A(3) and (4) of the EPBC Act.
  72. See s 71 of the EPBC Act.
  73. See s 496B of the EPBC Act.
  74. Matters relevant to whether reasonable steps have
    been taken are set out in s 496D of the EPBC Act.
  75. See the definitions of 'National Heritage values' in
    s 324D of the EPBC Act and 'Commonwealth Heritage
    values' in s 341D.
  76. See the definition of 'heritage value' in
    s 528. 'World heritage value' is defined
    in ss 12(3) and (4) by reference to the World Heritage
    Convention.
  77. A property may be included in the World Heritage List
    pursuant to the World Heritage Convention (see s 14 of
    the EPBC Act). Provisions relating to the listing and
    management of such properties are in Division 1 of Part
    15 of the Act. A property may be included in the National
    Heritage List in accordance with Division 1A of Part
    15 of the Act, which also contains provisions relating
    to the management of such places.
  78. However, because the heritage values of a place are
    part of the environment (see definition of 'environment' in
    s 528), the provisions of Part 3 relating to Commonwealth
    actions (s 28) and to Commonwealth land (s 26) protect
    the Commonwealth Heritage values of a Commonwealth Heritage
    place on Commonwealth land in Australia. Commonwealth
    Heritage places outside Australia are protected under
    Subdivision AA of Division 2 of Part 3. A place may be
    listed as a Commonwealth Heritage place only if it is
    in a Commonwealth area, or is outside Australia and is
    owned or leased by the Commonwealth or a Commonwealth
    agency (s 341C).
  79. A property may be included in the Commonwealth Heritage
    List in accordance with Division 1A of Part 15 of the
    Act, which also contains provisions relating to the management
    of such places.
  80. See Subdivision D of Division 1 and Subdivision C
    of Division 1A of Part 15 of the EPBC Act.
  81. See Subdivision C of Division 3A of Part 15 of the
    EPBC Act.
  82. See ss 324Z and 341Z of the EPBC Act.
  83. See ss 341ZA and 341ZB of the EPBC Act.
  84. See s 341ZC of the EPBC Act and Friends of Merri
    Creek Inc. v Meakins [2003] FCA 671.
  85. See ss 324ZA(2) and 341ZE(2) of the EPBC Act.
  86. See ss 324AZ(3)–(6) and 341ZE(3)–(6) of
    the EPBC Act.
  87. See Subdivision B of Division 1 and Subdivision B
    of Division 2 of Part 13 of the EPBC Act.
  88. See Subdivisions A and B of Division 5 of Part 13
    of the EPBC Act.
  89. See ss 268, 269 and 286 of the EPBC Act.
  90. See Subdivision BA of Division 1 of Part 13 of the
    EPBC Act.
  91. See s 207C(2) of the EPBC Act.
  92. See s 207C(3) of the EPBC Act.

AGS contacts

AGS has a network of lawyers experienced in providing
advice to agencies on environmental law. For further information
please contact our network leader in this area, Greg Prutej,
on tel 02 6274 1826, email greg.prutej@ags.gov.au,
or any of the lawyers listed below.

Canberra

Susan Reye
Andrew Miles

02 6253 7110
02 6253 7100*

Sydney

Sonja Marsic
Simon Konecny

02 9581 7594
02 9581 7585*

Melbourne

Libby Haigh
Jo Ziino

03 9242 1499
03 9242 1312*

Brisbane

Michelle Lindley
Nathan Simmons

07 3360 5753
07 3360 5681*

Perth

Lee-Sai Choo

08 9268 1137

Adelaide/Darwin

Sarah Court

08 8205 4231

Hobart

Peter Bowen

03 6210 2104

* For enquiries relating to property, leasing or infrastructure
projects.

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

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Please contact AGS before any action or decision is
taken on the basis of any of the material in this briefing.© AGS
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