Commonwealth EPBC Act

Introduction

Activities or development undertaken in the ACT may trigger the operation of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’). This is not unique to the ACT. The EPBC Act is a Commonwealth Act and can equally be triggered in other states and territories.

By triggering the EPBC Act, a development may need to be assessed and approved under the EPBC Act, in addition to the requirements under ACT legislation.

All references in the Commonwealth section of this chapter to the minister are to the Commonwealth Minister for the Environment; references to the department are to the Commonwealth Department of the Environment; and all section numbers are to the EPBC Act unless stated otherwise.

The department’s website includes extensive and detailed information about the operation of the EPBC Act (see Contacts list at the back of this book).

Actions requiring assessment and approval

The EPBC Act prohibits any person from taking an action that will have or is likely to have a ‘significant impact’ on a matter protected under a provision of Part 3 of the Act without the approval of the minister (s 67A).

An ‘action’ is broadly defined in the EPBC Act to include a project, development, undertaking and an activity or series of activities or an alteration of one of these things (s 523). However, the definition of ‘action’ expressly excludes:

• a decision by a government body, including government agencies and local councils, to grant a ‘governmental authorisation’ for another person to take an action
• a decision by a government body to provide funding by way of a grant.

The matters protected under Part 3 can be divided into the following two categories:

• matters of national environmental significance
• matters relating to actions by the Commonwealth, Commonwealth agencies and actions on Commonwealth land.

There are a number of exemptions from the requirements of the EPBC Act, which are discussed below.

What is a significant impact?

The EPBC Act provides no guidance on the meaning of ‘significant impact’. Administrative guidelines have been prepared by the department to assist proponents to determine when a proposed action may have a significant impact on a matter of national environmental significance and consequently whether it should be referred to the minister for assessment and approval. Copies of the guidelines are available at the EPBC Act page of the department website (see Contacts list at the back of this book). While helpful, these guidelines are not legally binding.

The Federal Court considered the meaning of ‘significant impact’ in the case of Booth v Bosworth [2001] FCA 1453; (2001) 114 FCR 39. This case concerned a lychee farmer using electric grids to kill Spectacled Flying-foxes from the adjacent Wet Tropics World Heritage Area. The court suggested that a significant impact under the EPBC Act is one that is ‘important, notable or of consequence’ having regard to its context and intensity. In this case, the court found that the killing of large numbers of the flyingfoxes on the farm was likely to have a significant impact on the world heritage values of the adjacent Wet Tropics World Heritage Area.

In determining the impacts of an action it is necessary to consider the potential direct and indirect (including cumulative) impacts of the action. In 2004, the Federal Court in the Minister for Environment and Heritage v Queensland Conservation Council Inc and WWF Australia (2004) 139 FCR 24 (‘Nathan Dam Case’) considered the scope of impacts that must be taken into account when deciding whether a proposed action is a ‘controlled action’ which requires approval under the EPBC Act. In particular, the Court looked at whether indirect impacts produced by third parties should be considered when assessing the impacts of a proposed action.

The Nathan Dam Case concerned a proposal to construct a dam on the Dawson River in Queensland. The case was primarily concerned with whether the impacts on the Great Barrier Reef from agriculture (and associated chemical application and run-off), which would be facilitated by the construction and operation of the dam, should be considered an impact of the dam itself. The court found that the potential impacts of the irrigation of cotton were impacts of the dam.

The court held that the term ‘impact’ is not confined to the direct physical effects of an action on a matter of national environmental significance. Rather, the term can include the indirect consequences of an action and may include the results of acts done by persons other than the proponent. Section 527E of the EPBC Act provides that the impact of a secondary action carried out by an independent person (that is, not at the direction or request of the primary person) is only an impact of a primary action if:

• the primary action facilitates, to a major extent, the secondary action; and
• the secondary action is within the contemplation of the person taking the primary action, or is a reasonably foreseeable consequence of the primary action; and
• the impact is within the contemplation of the person taking the primary action, or is a reasonably foreseeable consequence of the secondary action.

Matters of national environmental significance

There are currently nine matters of national environmental significance listed under Part 3 of the EPBC Act:

• world heritage values of declared World Heritage properties (ss 12-15A)
• national heritage values of a national heritage place (ss 15B-15C)
• ecological character of declared Ramsar wetlands (ss 16-17B)
• listed threatened species and ecological communities (other than vulnerable ecological communities) (ss 18-19)
• listed migratory species (ss 20-20B)
• nuclear actions (ss 21-22A)
• the environment in Commonwealth marine areas and Commonwealth managed fisheries (ss 23-24A)
• the Great Barrier Reef Marine Park (ss 24B-24C)
• water resources impacted by coal seam gas development and large coal mining development (ss 24D-24E).

Certain additional matters may be added after consultation with the states and territories (through prescribing additional matters by regulation).

The matters of national environmental significance which are most likely to be of relevance to actions taken in the ACT are listed threatened species and listed threatened ecological communities. For example, the listed threatened ecological communities include the ‘Natural temperate grassland of the Southern Tablelands of NSW and the Australian Capital Territory’. This endangered ecological community is threatened by land clearing and residential development in the ACT. The department website contains an interactive search map to assist in identifying matters of national environmental significance located in a certain area (see Contacts list at the back of this book).

Actions concerning the Commonwealth, Commonwealth agencies and Commonwealth land

Under Part 3, Division 2 of the EPBC Act, approval is required for the following:

• actions taken on Commonwealth land that have, will have or are likely to have a significant impact on the environment (anywhere) (s 26(1))
• actions outside Commonwealth land that have, will have or are likely to have a significant impact on the environment on Commonwealth land (s 26(2))
• actions carried out by the Commonwealth or a Commonwealth agency that have, will have or are likely to have a significant impact on the environment (anywhere) (s 28).

‘Commonwealth land’ is defined broadly to include land owned or leased by the Commonwealth or a Commonwealth agency, land in an external territory (except Norfolk Island) and the Jervis Bay Territory (ss 27, 525). Although all land in the ACT is owned by the Commonwealth, land in the ACT (other than certain land actually used by the Commonwealth) is not ‘Commonwealth land’ unless there is some other basis of the Commonwealth’s interest (e.g., a lease of the land to a Commonwealth agency). ‘Commonwealth agency’ is defined broadly to include a minister, body corporate established for a public purpose by a law of the Commonwealth, a company in which the Commonwealth owns more than half the voting stock, and a person holding an office under Commonwealth law. Certain exceptions apply, including a person holding an office under the Australian Capital Territory (Self Government) Act 1988 and certain Indigenous organisations (see definitions in s 528).

Exemptions from approval requirement

If an action has a significant impact on one of the matters of national environmental significance (discussed above) or, in the case of actions involving the Commonwealth or Commonwealth land, then approval from the minister will generally be required (pt 3, div 1). However, in some cases, an action will not need approval by the minister despite triggering the EPBC Act as described above. These key exceptions are covered in Part 4 of the EPBC Act and include actions that:

• have been declared by a bilateral agreement or a ministerial declaration to not require approval because it is approved under an accredited ACT or Commonwealth law or management arrangement (bilateral agreements are discussed below) (divs 1-2)
• are covered by ministerial declarations and bioregional plans (div 3)
• are covered by a conservation agreement (div 3A)
• are in an area covered by regional forest agreements or in a region subject to a process of negotiation for a regional forest agreement (div 4)
• are within the Great Barrier Reef Marine Park and taken in accordance with the zoning plan (div 5)
• were already approved, or being lawfully undertaken, when the EPBC Act commenced in 2000 (div 6).

Other exemptions from the assessment and approval process under the EPBC Act are discussed below.

Referral process

A proponent of an activity that may have a significant impact on a matter protected under Part 3 of the EPBC Act is required to refer details of the activity to the minister (s 68). If a proponent fails to make such a referral, the minister may ‘call-in’ the action (s 70). Commonwealth, state and territory agencies may also refer actions proposed by another person to the minister (s 69(1)).

Individuals and community groups cannot formally refer actions by other people or organisations to the minister. However, if you want a proposal referred, you can write to the state or territory agencies which do have the power to formally refer the matter and you may also contact the department to report the matter.

Upon receiving a formal referral, generally the minister must determine whether the activity must be approved, that is, whether the activity is likely to have a significant impact on a matter protected under Part 3 of the EPBC Act and is not otherwise exempt (s 75). If a proposed action does require approval it is called a ‘controlled action’.

A notice of all referrals is placed on the department’s website (s 74(3)) (see Contacts list at the back of this book). Members of the public will be given 10 business days to submit comments on whether they believe the action is likely to have a significant impact on a matter protected under Part 3 of the EPBC Act (that is, whether it should be a ‘controlled action’).

The minister may decide that a referred action is not a controlled action if satisfied that the action is not likely to have a significant impact on a protected matter. If the decision is made on the basis that the action will be taken in a particular manner, the notice of the minister’s decision must specify that manner and the action may not be taken in a way that is inconsistent with the manner specified in the notice (s 77A).

If the minister determines that an action is a controlled action, the relevant provisions of Part 3 must be identified as the ‘controlling provisions’ for the action. For example, if a proposal requires approval because it is likely to have a significant impact on a listed threatened ecological community, the controlling provisions are sections 18 and 18A (Actions with significant impact on listed threatened species or endangered community prohibited without approval; Offences relating to threatened species, etc). The minister has 20 business days to determine whether an action is a controlled action and, if it is, which provisions will be the controlling provisions for the action (s 75(5)). If further information is requested, the period for making the decision does not run until the information is provided (s 75(6)).

A decision that an action is or is not a controlled action may be reconsidered in limited circumstances. Generally, this will only be possible if substantial new information or a substantial change in circumstances relevant to the impacts of the proposed action emerges (s 78).

If the minister considers that the impacts of a referred action on a protected matter are clearly unacceptable, rather than making a controlled action decision, the minister may instead decide that the normal assessment process should not apply (s 74B). This in effect provides a mechanism for early rejection of an action which clearly would not be granted an approval if the process was followed. The minister may be required to reconsider such a decision (s 74D).

Environmental impact assessment process

If the minister determines that an action is a ‘controlled action’ and does require approval, an assessment must be carried out on the ‘relevant impacts’ of that action (s 82). The relevant impacts are potential impacts on each matter protected under Part 3 of the EPBC Act that the minister determined is likely to be affected by the proposal. For example, if an action is likely to have a significant impact on a listed threatened species, the assessment must address the potential impacts of the activity on the threatened species.

The assessment process in the EPBC Act only applies to actions that are not covered by an assessment bilateral agreement. As discussed below, the assessment bilateral agreement between the Commonwealth and the ACT covers many of the actions that may be proposed to be taken in the ACT which would otherwise require assessment under the EPBC Act. For these actions, assessment under the EPBC Act is not required, but the Commonwealth minister still retains an approval role (also discussed below).

For actions that are not covered by the bilateral agreement, after the minister has determined what the controlling provisions are for an action, the minister must decide which of the six possible methods of assessment, provided for in Part 8, should be applied. The methods of assessment are:

• an accredited assessment process (s 87(4), discussed below)
• an assessment on referral information (div 3A)
• an assessment on preliminary documentation (div 4)
• a public environment report (PER) (div 5) • an environmental impact statement (EIS) (div 6)
• a public inquiry (div 7).

In choosing the assessment approach, the minister will have regard to the information provided by the proponent on the potential impacts of the proposed activity and any other relevant information available, including any comments received from the relevant state or territory government (s 87). There is no opportunity for additional public comment on, or participation in, the decision of the minister as to the type of assessment to be undertaken.

Assessments done on referral information are undertaken solely on the information that an applicant has provided when referring their action to the minister. This referral information must include a description of the proposed action, the nature and extent of its likely impact on the environment and any matters of national significance, plus a description of the flora and fauna and other natural features in the project area (s 72(2); reg 4.03; sch 2 of the Environment Protection and Biodiversity Conservation Regulations 2000 (‘EPBC Regulations’)).

Where assessment is done on preliminary documentation, it is undertaken on information provided in the referral form and any other relevant information identified by the minister.

Where assessments are carried out by way of PER, EIS or public inquiry, the minister will issue guidelines or terms of reference that identify what specific matters the assessment must address (ss 96A(1), 101A(1), 107(1)(b)).

Such assessments may address impacts other than relevant impacts, however they will only do so where the relevant state or territory has asked the minister to ensure that the assessment under the EPBC Act covers other impacts.

The proponent will generally (with the exception of public inquiries) be responsible for carrying out the assessment and preparing relevant assessment documentation. The key steps in the assessment processes and the person responsible for these steps are set out below:

• determination of assessment approach—minister (s 87)
• preparation of guidelines (for PER or EIS)—minister (ss 96A(1), 101A(1))
• preparation of draft assessment documentation (for preliminary documentation, PER or EIS)—proponent (ss 98(1) (a), 103(1) (a))
• publication of draft assessment documentation for public comment (for preliminary documentation, PER or EIS)—proponent (ss 98(1) (c), 103(1) (c))
• preparation of final assessment documentation, taking public comment into account— proponent (ss 99, 104)
• preparation of recommendation report—secretary of the department (ss 100, 105).

If the assessment is by way of public inquiry, the minister will appoint commissioners to carry out the inquiry and will set their terms of reference (s 107). The commissioners have flexible powers in conducting the inquiry, including the powers to call witnesses, obtain documents and inspect places (pt 8, div 7). The inquiry must be held in public unless the commissioners believe it is in the public interest to hold all or part of it in private (s 110). The commissioners must report to the minister and publish their report, unless the inquiry, or part of it, was held in private (ss 121-122).

Details on the numbers and types of assessments undertaken are available from the department’s annual reports (see Contacts list at the back of this book). There have been no assessments by way of public inquiry since the EPBC Act commenced.

Bilateral agreements and accredited assessment processes

The EPBC Act allows the minister to enter into agreements with the states and territories under which the responsibility for assessing actions, or assessing and approving actions, can be transferred to the state or territory concerned (s 45). These agreements are called bilateral agreements. Actions that fall within the terms of a bilateral agreement will be exempt from the relevant requirements under the EPBC Act, and will be assessed, and possibly also approved, only under the relevant state or territory processes (ss 29, 46).

At the time of writing, all of the states and self-governing territories had entered bilateral agreements with the Commonwealth, covering assessment procedures only. Bilateral agreements covering environmental approvals are currently in draft form with the ACT, NSW, Queensland, Tasmania, South Australia and Western Australia. To date, no bilateral agreements covering approvals have been entered into; therefore all matters must still be referred to the Commonwealth minister for environmental approval.

Assessment bilateral agreement

A bilateral agreement, which allows for the transfer of assessment responsibilities only, between the Commonwealth and the ACT is currently in force. Under the bilateral agreement, actions assessed by an EIS under the Planning Act need not be assessed under Part 8 of the EPBC Act. The agreement specifies various requirements in relation to the conduct of the EIS process. After the EIS has been completed, the ACT must prepare an assessment report and provide a copy to the Commonwealth minister. The assessment report must take into account the EIS and any comments received during public consultation and include a description of the action, an assessment of the nature and extent of the likely impacts and recommend conditions that may be imposed. The Commonwealth minister will comment on whether it provides sufficient information for an informed decision to be made on whether or not to approve the action. The ACT may then provide any further information required, and will prepare a final assessment report. When preparing the assessment report, the ACT must take into account the Commonwealth EPBC Act Environmental Offsets Policy, recovery plans for threatened species and ecological communities and any approved conservation advices and threat abatement plans. The ACT and the Commonwealth ministers must endeavour to agree on a common set of approval conditions.

The Commonwealth minister must then decide whether to approve the action (s 133). In making this decision, the minister must take into consideration matters relevant to any matter protected by a Part 3 provision that the minister has decided is a controlling provision for the action; and economic and social matters. Other factors to be taken into account include the principles of ecologically sustainable development; the assessment report, if any; the public environment report, if any; comments by other relevant ministers (s 131) or the public (s 131A); and advice from the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development, if relevant (ss 131AB,136(2)). The minister may also consider a proponent’s history in relation to environmental matters (s 136(4)).

The minister has a broad discretion to impose conditions on an approval to protect the relevant matter of national environmental significance or Commonwealth environment or to mitigate or repair any damage that might be caused by the action. Conditions attached to an approval may include provision of a bond or other security, independent environmental auditing, preparing or implementing management plans, carrying out specified environmental monitoring or testing or complying with a code of practice (s 134). Some types of conditions can only be imposed with the agreement of the proponent.

The 2013-14 annual report of the department gives statistics for environmental impact assessment activities during the year and since the EPBC Act’s commencement in July 2000.

Since the commencement of the EPBC Act, a total of 5,137 referrals have been made and 5,139 decisions (including reconsiderations) made on these referrals. Of these, 2,452 were not controlled actions so required no approval. Another 985 required no approval provided they were undertaken in a particular manner, that is, in the manner specified by the proponent in the referral documentation or specified by the minister. Only 1307 of the referrals required assessment and approval. 722 actions have been approved and ten actions have been refused approval.

In 2013-14, the type of assessment required for the 113 referrals made in that year was as follows:

Commonwealth assessments	State/territory assessments
environmental impact statement—2	bilateral assessment—15
public environment report—3	accredited process—15
referral information—9
preliminary documentation—69

In the ACT in 2013-14, a total of four referrals under the EPBC Act were made. One of these was a controlled action that progressed through to an assessment process and three were not considered to be controlled actions. The EIS assessment reports considered by the Commonwealth minister included:

• Mugga Lane Resource Management Centre Expansion
• Craven’s Creek Water Quality Control Pond; and
• Lawson South 132 kV Power Line Relocation.
  There are a number of restrictions on the minister’s power to approve activities that relate to matters of national environmental significance. Conservationists and other interested persons should consider this when seeking to oppose an activity.

Approval bilateral agreement

An approval bilateral agreement between the Commonwealth and the ACT has been drafted, but not entered. The draft agreement provides for accreditation of ACT processes for approval of proposed actions that have been assessed via the impact track under the Planning Act and that would otherwise require approval under the EPBC Act. Copies of the draft agreement can be viewed on the department website (see Contacts list at the back of this book).

Penalties

The EPBC Act has parallel civil and criminal penalty provisions for some activities. For example, undertaking an activity that has, or is likely to have, a significant impact on a matter protected under Part 3 of the EPBC Act without approval may attract a criminal or civil penalty (ss 15A, 15C, 17B, 18A, 20A, 22A, 24A, 24C, 24E). In these cases, the Commonwealth has the option of determining the most appropriate course of action be it pursuing a criminal prosecution or seeking a civil penalty or injunction. In deciding this, the department may take into account matters such as the previous record of the person, the seriousness of the breach and whether legal action is being pursued under other legislation. A copy of the department’s compliance and enforcement policy is available from their website (see Contacts list at the back of this book).

Undertaking an activity that has, or is likely to have, a significant impact on a matter protected under Part 3 of the EPBC Act without approval is a criminal offence. Severe penalties can be imposed for failing to obtain approval, including a civil penalty or fine of up to 50,000 penalty units (currently $8.5 million) for a corporation and a fine of 5,000 penalty units (currently $850,000) for an individual and/or a criminal penalty of seven years imprisonment and/or a fine of 420 penalty units (currently $71,400). The offender may also be required to undertake or pay for the mitigation or repair of the environmental damage caused by the action (pt 17, divs 14A-14B; pt 18).

It is a criminal offence to breach a condition attached to an approval with maximum civil penalties of 1,000 penalty units (currently $170,000) for an individual or 10,000 penalty units (currently $1.7 million) for a corporation (s 142) or a criminal penalty of up to two years imprisonment and/or a fine of up to 120 penalty units (currently $20,400) (s 142A). Failure to comply with the terms of an approval can also result in the suspension or revocation of an approval (ss 144-145).

Exemptions

There are a number of instances where actions can be exempt from both assessment and approval under the EPBC Act. Further, certain actions can be exempt from the assessment process, while still requiring approval under the EPBC Act. For example, the minister can grant an exemption from specific provisions of the EPBC Act, including the entirety of the assessment and approval process, if the minister is satisfied that it is in the national interest that those provisions do not apply to the action (s 158). Notice of such exemptions, and the reasons for granting them, must be published on the department website (s 158(7)(a); EPBC Regulations, pt 16).

Other exemptions from the approval requirements are discussed above, for example, exemptions for actions that are declared under a bilateral agreement not to require approval by the Commonwealth minister.

Opportunities for public participation

The opportunities for public involvement in the referral and assessment processes have been mentioned above. The following section gives more detail.

If a proposal is referred to the minister, notification must be published on the department website and comments must be submitted within 10 business days (s 74(3)). Matters to be addressed in any submission must cover whether the proposed action is likely to have a significant impact on any matter protected under Part 3 of the EPBC Act, that is, whether it is a ‘controlled action’.

If the action is to be assessed by a PER or EIS, then the minister must prepare guidelines for that process (ss 96A, 101A). At the discretion of the minister, there may be an opportunity for public comment at this stage (ss 97(5), 102(5)). The question to be addressed will be whether the guidelines are appropriate.

If the assessment is by referral information, preliminary documentation, PER or EIS, there is an opportunity for public comment. An invitation to provide comment is published in a national, state or territory newspaper, depending on the location of the action and, if practical, in a regional newspaper in the region affected. A notice is also published on the department website. The notification will include the time limit for comments, but it must be not less than 10 days for an assessment on referral information or preliminary documentation (ss 93(3), 95(2)) and not less than 20 days for a PER or EIS assessment (ss 98(3), 103(3)).

As well as addressing the accuracy and thoroughness of the documentation, comments may address:

• potential impacts on matters of national environmental significance or other relevant matters protected under Part 3 of the EPBC Act (see above)
• social and economic issues
• history of the proponent in relation to environmental issues—any allegations made against the proponent must be supported by reliable evidence (see Chapter 12 in this Handbook for a discussion of defamation)
• conditions which should be attached to any approval.
  Where assessment is by way of public inquiry this may be because public involvement is seen to be necessary. However, whether objectors and third parties are given the opportunity to make written or oral submissions is at the discretion of the commissioners appointed to run the inquiry (pt 8, div 7).

If the assessment is carried out under another Commonwealth, state or territory accredited process or an assessment bilateral agreement, there will also generally be opportunities for public comment.

Legal review

In certain circumstances, a third party, or the minister, can seek an injunction in the Federal Court to prevent a contravention of any of the provisions of the EPBC Act (s 475). The case of Booth v Bosworth (referred to above) involved a third party seeking an injunction to prevent a lychee farmer operating an electric grid to protect his crop as the grid was causing the death of thousands of Spectacled Flying-foxes, which the applicant argued was having a significant impact on a World Heritage listed property (see Chapter 12 in this Handbook for more information on taking action under the EPBC Act).

Decisions made under the EPBC Act are subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in the Federal Circuit Court or the Federal Court. The EPBC Act makes special provision extending the category of persons who can apply for judicial review (s 487). However, there is no right to apply for merits review of a ministerial decision in the Commonwealth Administrative Appeals Tribunal.