Chapter 15

When dealing with environmental problems that have national significance, you will sometimes need to refer to commonwealth laws.

State and local governments are responsible for managing most activities that impact on the environment. However, in some cases a person planning an activity or development may need to obtain federal government approval - in addition to any approvals needed under State law (see Division of Powers).

By far the most important federal law is the Environment Protection and Biodiversity Conservation Act 1999 – commonly referred to as the ‘EPBC Act’

This Chapter provides a brief summary of the EPBC Act – to assist you if you are dealing with an issue of national environmental significance.

• Assessment and approval for actions that will impact on 'matters of national environmental significance'

• Establishing lists of nationally threatened species and ecological communities and a register of critical habitat

• Establishing a permit system for taking, trading, importing and exporting threatened species

• Prohibiting killing or injuring of cetaceans (such as whales and dolphins) in Australian waters

• Establishing a list of National heritage places and Commonwealth heritage places

• Dealing with the management of World Heritage properties and heritage places

Most significantly, the EPBC Act identifies a number of 'matters of national environmental significance’ and requires approval from the Federal Environment Minister for ‘controlled actions’ which may have a significant impact on these matters.

What is a ‘controlled action’?

‘Actions’ are defined to include such things as a project, a development, an undertaking, an activity, or an alteration to one of these things.

A decision by government to grant approval for an action, or make a grant of funding is not an action.

• actions likely to have a significant impact on a ‘matter of national environmental significance’;

• actions likely to have a significant impact on the environment of Commonwealth land; and

• actions by the Commonwealth Government or a Commonwealth agency likely to have a significant impact on the environment (this could include actions taken by the Commonwealth Government outside of Australia).

What is a ‘matter of national environmental significance’?

There are currently seven ‘matters of national environmental significance’ listed under the EPBC Act:

1. World Heritage values of World Heritage properties;
2. Wetlands of international importance (Ramsar wetlands);
3. Commonwealth listed threatened species and ecological communities;
4. Listed migratory species;
5. Commonwealth marine areas;
6. Nuclear actions; and
7. Listed National Heritage and Commonwealth Heritage places.

Lists of Ramsar wetlands, threatened species and ecological communities, migratory species and heritage places can be found on the Department of Environment, Water, Heritage and the Arts website (www.environment.gov.au/epbc).

What are ‘triggers’?

These matters are often referred to as “triggers”, as they trigger the application of the EPBC Act.

Many stakeholders have proposed the introduction of additional triggers (for instance to address significant greenhouse gas emissions and water extraction), however these triggers have not been adopted to date.

What is a ‘significant impact’?

Any direct impacts of an action must be considered when assessing the potential impact of an action. Recent amendments to the EPBC Act have clarified that the impact of an action also includes indirect impacts which are:

• facilitated, to a major extent, by the action; and

• within the contemplation of the person taking the action; and

• reasonably foreseeable

“Significant” is not defined in the EPBC Act. However, the general test for whether an impact is significant (based on decided cases) is whether the impact is “important, notable, or of consequence, having regard to its context or intensity”.

The Commonwealth has published a policy document Significant Impact Guidelines to assist you to determine whether a proposed action will have, or is likely to have a ‘significant impact’. Click HERE to download.

What is the Precautionary Principle?

The EPBC Act is built around the The Precautionary Principle which states that:

“Lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage”.

Section 391 of the Act requires the Minister to take account of the Precautionary Principle when making a wide range of decisions.

What are 'Bilateral Agreements'?

The EPBC Act also allows the Commonwealth to enter into agreement with the States and Territories. This may allow a State or Territory approval process to be recognised for the purposes of the EPBC Act. That is, the State approval process simply replaces the Commonwealth process. These agreements are known as ‘Approval Bilateral Agreements'. To date there are no bilateral agreements in place that enable project approval via State processes.

There are, however, a number of ‘Assessment Bilateral Agreements’ in force. These agreements can allow certain environmental impact assessment processes undertaken by the state to be accredited and utilised by the Federal Minister in making determinations under the EPBC Act.

The Commonwealth and Tasmanian governments re-signed a bilateral agreement in 2005. Under the agreement, the impact assessment procedures under Tasmania’s State Policies and Projects Act and the Environmental Management and Pollution Control Act 1994 (☞ see Chapter 5) are accredited.

If the Federal Minister decides that a controlled action will be assessed by the “accredited process”, assessment reports prepared under the Tasmanian laws will be submitted to the Federal Minister for consideration before she or he makes a decision. No further impact assessment is required.

What are Ministerial Declarations?

The Minister can also make declarations under the EPBC Act - to the effect that certain actions do not need approval under the Act. A declaration can exclude specific classes of action (for example, mineral extraction below a certain volume), or can provide that actions are exempt if they are carried out in accordance with an accredited management plan.

The main weakness of the Act is that the list of ‘triggers’ is limited. Importantly, the Act does not empower the Minister to regulate developments that would result in significant greenhouse gas emissions or that would use significant volumes of water (surface or ground water).

This compromises the ability of the EPBC Act to achieve ecologically sustainable outcomes for the nation.

The ability of the Minister to declare ‘exemptions’ is also concerning, as such declarations may exclude some activities that could have a significant environmental impact. The EPBC Act also specifically exempts actions carried out under Regional Forest Agreements from the assessment and approval provisions of the Act.

There are also limited opportunities for the public to seek a merits review of decisions made by the Minister under the EPBC Act.

However, there are quite broad standing provisions to allow the public to apply for an injunction under the Act. (Note: these provisions were recently weakened by the removal of a protection against security for costs where a third party seeks an interim injunction).

• Administers the EPBC Act through the Department of Environment, Water, Heritage and the Arts.

• Responsible for assessing and approving controlled actions, making decisions about civil enforcement of the EPBC Act, such as obtaining injunctions or revoking permits.

• If a developer has breached the conditions of an approval, the Minister has broad powers to immediately suspend, revoke, vary or amend the approval or its conditions.

• The Director of Public Prosecutions can bring criminal prosecutions for offences under the Act (such as carrying out development without an approval or providing misleading information).

Any actions that are likely to have a significant impact on matters of national environmental significance must be assessed and approved by the Commonwealth Environment Minister (unless they have been exempted - see above).

If the EPBC Act applies to a particular action, and it is carried out without an approval from the Minister, the action will be unlawful and the person or organisation carrying out the action may be prosecuted or have an injunction issued against them.

1. The person or organisation proposing to take the action (the ‘proponent’) has a duty to refer it to the Minister for a decision as to whether the proposed action is a ‘controlled action’.
   
   
2. A State or Territory government or agency (such as the Department of Primary Industries and Water or Parks and Wildlife) can refer the proposal to the Minister. There is some dispute as to whether local councils can make referrals.
   
   
3. The Commonwealth Environment Minister may request the proponent to make a referral. If no referral is made within the set time period, the Minister can deem the action to be referred.
   
   
4. A Commonwealth agency or responsible Minister can refer a proposed action to the Minister.

Note: a proponent can include a number of alternatives for an action in the referral (for example, the proponent may propose two different locations for a factory). The Minister can approve one or more of the options proposed.

No, citizens and community groups cannot formally refer actions by other people to the Minister.

If you want a proposal to be referred to the Minister for a decision (as to whether an approval is required) then you should write to either the proponent or to relevant government agencies and ask them to refer the proposal to the Minister.

You could also write to the Minister and ask him or her to request that the proponent refer the action, and report the proposal to the Compliance and Enforcement section of Department of Environment, Water, Heritage and the Arts.

If a proposal is referred, the federal Environment Minister decides whether a proposed activity is likely to have a significant impact on a matter of national environmental significance or on Commonwealth land.

If the Minister decides that a proposed development or activity is covered by the EPBC Act, it is called a Controlled Action and will need to be assessed and approved by the Minister before it can go ahead.

There are significant penalties for taking a Controlled Action without approval. The maximum penalty for an individual is $660,000 and the maximum penalty for a body corporate is $6.6 million. Some offences are also punishable with up to seven years imprisonment.

The Minister must publish the Referral on the Department's website and invite the public to give comments as to whether the action is a Controlled Action. If the proponent agrees that the proposed activity or development is a Controlled Action, the public does not have an opportunity to comment at this stage.

The Minister can request further information about the proposed action from the proponent.

A decision must be made within 20 business days of receiving the Referral (unless further information is requested). In deciding whether the action needs approval the Minister must take into account The Precautionary Principle.

• a Controlled Action,

• not a Controlled Action, or

• not a Controlled Action, provided it is carried out in a certain manner.

The Minister must give notice of the decision, which is published on the Department’s website. Any ‘interested person’ can request reasons for the decision.

There are no formal requirements.

However, all submissions should include your name, address and contact details.

• read the referral documents carefully. Point out any missing or wrong information in your comments, e.g. listed species not mentioned, incorrect hydrological impact information;

• attach any existing evidence or reports which support your comments, e.g. lists of birds spotted in the area;

• make reference to the Significant Impact Guidelines, or any other relevant material, to show significant impact; and

• comment on the assessment approach that should be used (for example, environmental impact statement).

It is important to comment at this stage, because if the action is not determined to be a Controlled Action, then the Commonwealth Minister does not need to assess the development any further.

If the Minister decides that the development is not a Controlled Action, the proponent cannot later be prosecuted under the EPBC Act - even if the activity or development does significantly affect a matter of national environmental significance.

If the federal Environment Minister decides that a proposed activity or development is a Controlled Action, the next step is for the Minister to assess the environmental impacts of the proposal.

• Assessment on referral information only – for actions for which the likely impacts are ‘straight forward’

• Assessment on preliminary documentation – for actions with few or confined impacts that are reasonably well understood

• Accredited assessment process – the Minister can refer to assessment documents prepared under other laws. If a bilateral assessment agreement has been signed, the assessment process accredited in that agreement will be followed.

• Public Environment Report (PER) - where a number of issues are raised and further information is required to assess the impacts of the proposed action.

• Environmental Impact Statement (EIS) - where a large number of issues are raised and further information and analysis is required to assess the impacts of the proposed action.

• Public inquiry - for actions where the impacts are expected to be large, wide-ranging and there is a need for extensive public involvement. A public inquiry can be used in conjunction with other assessment approaches such as a PER or EIS.

The Minister must decide on which assessment approach will be used, based on the information provided by the proponent, comments from the public and relevant State government agencies, and factors set out in the EPBC Act.

The Commonwealth Minister can only assess impacts on matters of national environmental significance, Commonwealth land, or an action by the Commonwealth.

A proposed action may have environmental impacts going beyond those covered by the EPBC Act, but these do not have to be assessed or considered by the Commonwealth. However, they are likely to be assessed under State or Territory laws (see Chapter 5 for the Tasmanian approval process.).

All of the different types of assessments carried out by the Commonwealth, allow the public to have access to information about the proposed action and an opportunity to comment on it. Public comments are incorporated in the final report to the Minister.

If the assessment is carried out by another Commonwealth department or a State or Territory government under an accredited process, there may also be additional opportunities for public comment and access to information about the proposed action.

Within 20 – 40 days (depending on the assessment approach) of receiving the environmental assessment documents, the Minister must decide whether to grant an approval for the action. The Minister is also able to attach conditions to an approval.

• the impacts on each relevant matter of national environmental significance, or the Commonwealth environment;

• economic and social matters;

• the principles of ecologically sustainable development;

• the precautionary principle,

• any assessment report, PER or EIS or report of a public inquiry (including a summary of public comments);

• any comments given to the Minister by another Commonwealth Minister; and

• the proponent’s history in relation to environmental matters.

If the Minister believes that he or she does not have enough information to make an informed decision, then he or she can ask the proponent for extra specified information. The time taken to provide the information is added on to the time limit for making a decision.

In granting an approval or imposing conditions on an approval relating to World Heritage sites, Ramsar wetlands, threatened species or ecological communities or migratory species, the Minister’s decisions must be consistent with Australia’s obligations under any relevant international conventions.

Similarly, the Minister must not grant an approval that is inconsistent with a Recovery Plan or a Threat Abatement Plan for a threatened species in place under the EPBC Act.

There are also direct prohibitions on approving nuclear power plants or enriching or reprocessing facilities.

The Minister has a wide discretion to impose conditions on an approval to protect the matter of national environmental significance or Commonwealth environment, or to mitigate or repair any damage that might be caused by the action.

• provide a bond to cover any mitigation or repair work;

• carry out periodic, independent environmental audits;

• prepare and implement management plans;

• establish a reserve area to offset any habitat loss caused by the Controlled Action.

• a significant impact on a matter of national environmental significance has occurred because of a breach of an approval or a condition; or

• the impacts identified were inaccurate because of negligence or a deliberate attempt to leave out information.

• any condition of the approval has been breached;

• there has been an impact on a matter of national environmental significance that was not identified when originally assessing the controlled action; or

• if the person taking the controlled action agrees to the change.

There are no provisions for appeal against the Minister’s decision. However, you may be able to pursue an action under the Administrative Decisions Judicial Review Act if you believe that the Minister did not follow the proper legal process (for example, by failing to take a relevant consideration into account).

Judicial review actions are taken in the Federal Court and can be very complex and expensive. Seek legal advice before you decide whether to take such action (☞ Go to Chapter 14 for information).

The EPBC Act offers very limited legal appeal rights to the general public.

However, an interested person can apply for an injunction on any activity that breaches the EPBC Act (for example, an action which threatens World Heritage values and has not been approved under the Act).

• an individual citizen or resident who has been involved in a series of activities to protect the environment for the past two years or more; or

• an organisation that has been involved in a series of activities to protect the environment for the past two years or more, and has protection or conservation of the environment, or research into the environment, among the objects or purpose of the organisation

Unfortunately, a provision in the legislation protecting interested persons from being required to provide ‘security for costs’ when seeking an interim injunction has recently been removed. However, the Federal Court still has discretion to waive the requirement for security for costs.

☞ For more information about the EPBC Act, see contacts at end of chapter.

Aside from the EPBC Act the Commonwealth has a range of legislation and programs dealing directly with specific issues such as:

• genetically engineered crops (☞ see Chapter 10),
• ozone depletion
• heritage protection (☞ see Chapter 12),
• marine protection (☞ see Chapter 9),
• forestry (☞ see Chapter 8,
• energy efficiency (☞ see Chapter 16),
• agricultural chemicals (☞ See Chapter 10), and
• the Antarctic environment.

To find more about commonwealth laws, responsibilities and programs go to the Department of Environment and Water Resources main website.

This can be a confusing area of law and it may be difficult to work out which legislation applies in certain circumstances. The following guidelines may be helpful.

• to all Commonwealth agencies and their activities;

• on Commonwealth land or water;

• in areas where the Commonwealth has joint jurisdiction (such as world heritage areas, and marine fisheries);

• where the Commonwealth already has ‘reserve powers’, such as the ability to control export permits;

• where federal legislation gives the commonwealth explicit power to act (eg. matters listed in the EPBC Act).

• where the federal government has signed an international agreement obliging it to comply with that agreement (e.g. Antarctica, biodiversity, wetlands, whaling, marine protection, ozone, world heritage, migratory species… and possibly soon greenhouse gas abatement!)

However, just because the Commonwealth has the power to act does not mean that it automatically will. The public has an important role in pressuring it to do so.

The federal government is required to comply with its own laws. So if the case you are dealing with involves the Commonwealth or one of its agencies, or even federal funding, then you may be able to apply national legislation.

Sometimes Commonwealth laws and state laws say different things about the same topic. If the laws are inconsistent, then the commonwealth law overrides the state law to the extent of the inconsistency.

The Federal government is not bound by state laws.

To avoid dogfights with the states over environmental matters, the federal government has generally adopted a policy of cooperative federalism – getting all states and territories to come to agreement on important issues. It does this through meetings of the Council of Australian Governments (COAG).

Such national agreements are often of limited use to those who are trying to protect the environment – except where they result in agreed mandates that have been built into law (i.e. given 'statutory force').

Tasmania has signed up to a number of important nationwide agreements which have significant implications for future environmental laws, including:

In recent years a number of nationwide ‘policies’ (NEPMs) have been agreed to by all Australian States. These deal with wide-ranging issues including diesel emissions, marine and fresh water quality, noise, site contamination, and hazardous wastes.

Tasmania has effectively incorporated these ‘policies’ into Tasmanian law by declaring them as State Polices under its Resource Management and Planning System (described in Chapter 4).

Click HERE to download these national policies.

The IGAE (signed in 1992) is a broad in-principle agreement about the division of responsibilities between the three levels of government. An important aspect of this agreement is that it includes the importance of The Precautionary Principle being implemented in environmental legislation.

A copy of the IGAE appears as a Schedule to several national Acts including the Environment Protection Council Act 1994

This national agreement (signed in 1995) requires each State to review and reform all legislation that is seen to restrict competition. (ie. legislation should not restrict competition unless its benefit to the community as a whole outweighs the costs, or unless the legislation cannot avoid restricting competition.)

To pursue this agenda the Tasmanian Subordinate Legislation Act outlines a timetable for staged automatic repeal of certain government regulations and compels State government agencies to review the legislation they administer.

This agreement can have some positive as well as negative impacts on the environment.

The National Water Initiative (signed in 2005) sets out objectives and actions for national water reform issues, such as water trading, best practice pricing and integrated management of water resources. Tasmania has passed water laws to comply with this national initiative.

Still in its infancy, this mooted program will apply nationally when it becomes established (☞ see Chapter 16).

This program provides funding for a range of nationwide environmental initiatives such as the:

• Natural Resource Management (NRM) program

• National Reserve System Program

• Coastal Communities Program

• Indigenous Protected Areas Program

(Through the above program, Indigenous landowners are being supported to manage their lands for the protection of natural and cultural features in accordance with internationally recognised standards and guidelines.)

☞ Go to Chapter 2 and 3 for general information about federal, state and local government roles and responsibilities.)

☞ go to the Department of Environment, Water, Heritage and the Arts website, to find more about various commonwealth laws, responsibilities and programs.

It is beyond the scope of this book to detail the EPBC Act’s many features. However, the Department of Environment, Water, Heritage and the Arts provides succinct explanatory information through its website.

This user-friendly site includes information such as ‘Frequently Asked Question about EPBC’ and much more.

All documents on the EPBC website can be obtained by contacting the department's Community Information Unit on Ph 1800 803 772.

If you are dealing an issue that may have national implications, then it may be well worthwhile to download the EPBC Act itself.

Click HERE to see information about international agreements that Australia has committed to.

Department of Environment, Water, Heritage and the Arts
Website
King Edward Terrace, Parkes ACT 2600
GPO Box 787, Canberra ACT 2601 Ph: 02 6274 1111 Fax: 02 6274 1666

• Compliance and Enforcement Section:
• Australian Antarctic Division: Ph: 03 6232 3209 Fax: 03 6232 3288 web
• Australian Greenhouse Office: Ph: 02 6274 1888 web
• Director of National Parks: Ph: 02 6274 2221 Fax: 02 6274 2228 web
• National Oceans Office Ph: 03 6208 2900 Fax: 03 6229 7207
• Supervising Scientist: Ph: 08 8920 1101 Fax: 08 8920 1190 web

Environment Protection and Heritage Council (EPHC) Website
Level 5 81 Flinders Street Adelaide SA 5000
Ph: 08 8419 1200 Fax: 08 8224 0912
Email: exec@ephc.gov.au

Environmental Defenders Office: Website
131 Macquarie Street, Hobart 7000 Ph: 6223 2770 Fax: 6223 2074
Email: edotas@edo.org.au

• Environment Protection and Biodiversity Conservation Act 1999
• Environment Protection and Biodiversity Conservation Regulations 2000
• Environment Proection (Sea Dumping) Act 1981
• Environmental Reform (Consequential Provisions) Act 1999
• Gene Technology Act 2000
• Fisheries Management Act 1991
• Antarctic Marine Living Resources Conservation Act 1981
• Australian Heritage Council Act 2003
• Historic Shipwrecks Act 1976
• Protection of the Sea (Prevention of Pollution from Ships) Act 1983
• Environment Protection (Sea Dumping Act) 1981
• Aboriginal and Torres Strait Islander Heritage Protection Act 1984

Federal laws can be downloaded from HERE.

Section 391 ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999

Minister must consider precautionary principle in making decisions

Taking account of precautionary principle

(1) The Minister must take account of the precautionary principle in making a decision listed in the table in subsection (3), to the extent he or she can do so consistently with the other provisions of this Act.

Precautionary principle

(2) The precautionary principle is that: lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage.

Decisions in which precautionary principle must be considered

(3) The decisions are: